The COVID-19 pandemic has wreaked havoc worldwide, and has taken a particularly devastating toll in long-term care facilities such as nursing homes.
Nursing homes are inherently susceptible to COVID-19, since residents live in close proximity to one another, creating a significant transmission risk. Nursing home staff also travels between rooms caring for residents, creating another potential risk of spread. The high risk of COVID-19 infiltrating nursing homes is especially problematic since these facilities serve an elderly population, often with chronic health conditions, that is more susceptible to severe COVID-19 complications.
The Centers for Medicare & Medicaid Services ("CMS") estimates that, as of May 31, 2020, there have been approximately 32,000 COVID-19 related deaths in nursing homes. This number may be a significant underestimate, however, since it only includes 88 percent of nursing homes reporting and does not include deaths prior to May 6, 2020. The number also fails to account for deaths in other long-term care facilities such as assisted living facilities.
Overall, it's estimated that the death toll for long-term care facilities, including nursing homes, may constitute upwards of 40 percent of the total U.S. death toll from COVID-19.
As Medicaid providers, nursing homes are bound by federal law. Under normal circumstances, nursing homes are routinely surveyed by federal regulators to ensure they are in compliance with federal law, including adherence to infection control standards. However, on March 4, 2020, CMS suspended all routine nursing home inspections. Currently, inspections are only permitted in limited circumstances, including in response to complaints alleging "immediate jeopardy" and infection control concerns.
In addition, CMS and the Centers for Disease Control & Prevention ("CDC") have recommended that entry into nursing homes be restricted for all visitors and non-essential healthcare professionals. Therefore, family members and friends of nursing home residents who typically are able to keep a watchful eye over their loved ones may no longer be permitted to visit.
Ultimately, COVID-19 has resulted in dramatically reduced oversight for nursing homes. This is worrisome especially since, according to a recent study conducted by The Government Accountability Office, a federal watchdog agency, 82 percent of nursing homes in the United States were cited for infection prevention and control deficiencies from 2013 to 2017.
Although nursing home oversight is presently compromised, there are still measures you can take to help ensure that a facility is properly caring for a resident and has implemented appropriate infection control measures.
Phone, Text Messaging, E-mail, Video Chat. First, stay connected with the resident via phone, text message and/or e-mail. Ask the resident pertinent questions regarding signs of illness and whether the nursing facility is providing all basic needs, including food, hydration and any necessary medications. Use of video chat technologies is also beneficial so you can physically see the condition of the resident and his or her surroundings. It may be helpful to seek the assistance of the nursing home to facilitate communication with a resident.
Remember, staying in contact with a loved one is important not only to ensure that the person is receiving proper care, but also for the resident’s emotional health. Indeed, residents may be experiencing increased loneliness and social isolation due to restricted visitation and other infection control measures such as cessation of group activities and communal dining.
Contact the nursing home. Next, regularly speak to nursing staff and facility administration to receive updates regarding the resident’s daily care and health status. Do not be afraid to ask about the facility’s infection control measures and any COVID-19 cases there. Be aware that nursing homes are obligated, as a matter of federal law, to:
You can ask whether the facility has implemented key infection control recommendations from the CDC and CMS, some of which include:
If you suspect that a resident is being abused or neglected, or that a facility has failed to implement appropriate infection control measures, you can:
Even though we are in the midst of a crisis, nursing home residents still have legal rights that must be respected and upheld. To the extent a resident has contracted COVID-19 and suffered injury or death due to a nursing home's substandard infection control procedures and/or failure to provide adequate care, you can initiate a civil lawsuit against the facility alleging that its actions fell beneath the acceptable standard of care.
It is important to be aware that around 20 states so far have enacted immunity laws protecting nursing homes against liability from coronavirus-related personal injury or wrongful death lawsuits. The language of these immunity provisions varies by state. For the most part, though, the provisions do not protect nursing homes that have engaged in "gross negligence."
Interpretation of what constitutes "gross negligence" in the age of COVID-19, and what the applicable standard of care is during these unprecedented times, will vary by state, by court and according to the specific facts of each case. And keep in mind that state and federal recommendations, regulations and standards around COVID-19 are subject to change given the rapidly shifting pandemic landscape.
If you are considering legal action, you should consult an attorney who handles nursing home abuse and neglect cases.