Nursing Home Liability (and Immunity) Over COVID-19 Infections and Deaths

How the coronavirus pandemic has impacted nursing home oversight and liability, and what you can do.

Nursing homes, rehabilitation centers, and other long-term care facilities are inherently susceptible to COVID-19 for a number of reasons. Residents live in close proximity to one another, creating a significant transmission risk. Staff members not only move between rooms, but they often work in different nursing homes, creating another potential risk of spread. To make matters worse, residents are more susceptible to severe COVID-19 complications—and death—because they're elderly and/or have chronic health conditions.

And even with the near-universal vaccination of residents in long-term care facilities (once the vaccine rollout picked up speed by the spring of 2021), worryingly high numbers of unvaccinated staff members can cause breakthrough infections in residents.

Coronavirus In Nursing Homes: The Numbers

According to data reported by the Centers for Medicare & Medicaid Services ("CMS"), there were about 132,000 deaths in nursing homes from COVID-19 as of April 11, 2021. However, this number is likely a significant underestimate, in part due to the lack of comprehensive data from some states and the federal government. Also, the CMS numbers don't include deaths in other long-term care facilities.

Effect of COVID-19 on Nursing Home Oversight

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. In March 2020, however, CMS suspended all routine nursing home inspections in order to prioritize response to complaints alleging "immediate jeopardy" and infection control concerns.

In response to recommendations from CMS and the Centers for Disease Control & Prevention ("CDC"), nursing homes have restricted entry by 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 resulted in reduced oversight for nursing homes. This is worrisome especially since, according to a study conducted by the Government Accountability Office, a federal watchdog agency, 82% of nursing homes in the United States were cited for infection prevention and control deficiencies from 2013 to 2017.

However, both the Coronavirus Aid, Relief, and Economic Security (CARES) Act of 2020 and the American Rescue Plan Act of 2021 authorized funds to skilled nursing facilities to help them address critical needs connected to COVID-19, including enhanced infection control, increasing testing, and hiring additional staff.

Help Ensure a Resident's Safety

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:

  • provide timely updates to residents and their representatives regarding any positive COVID-19 cases
  • report COVID-19 cases and deaths to the CDC (CMS then posts this information for the public), and
  • advise residents, their representatives and families of the measures they are taking to prevent or reduce the risk of transmission.

You can ask whether the facility has implemented key infection control recommendations from the CDC and CMS, some of which include:

  • routine testing of nursing home staff, and active screening and testing of any residents and/or staff with COVID-19 symptoms with appropriate follow-up testing
  • exclusion of COVID-19 positive healthcare staff until return to work criteria is satisfied
  • proper use of personal protective equipment (PPE), especially when caring for sick residents
  • proper hand hygiene and disinfecting/limiting sharing of medical equipment between residents, and
  • separating COVID-19 positive and negative residents ("cohorting") and using different staff to care for each.

If You Suspect a Problem

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:

  • Attempt to speak with the director of nursing, or an administrator, and request that action be taken to correct any issues.
  • If the facility fails to take sufficient corrective measures, contact your state's long-term care ombudsman office charged with advocating for residents' health, safety and welfare.
  • File a complaint with your state survey agency which is charged with ensuring nursing home compliance with state and federal law.

Liability and Immunity for Coronavirus-Related Injury or Death

In a pandemic or not, nursing home residents 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 should be able to initiate a civil lawsuit against the facility alleging that its actions fell beneath the acceptable standard of care.

However, at least 30 states have given nursing homes some form of protection from liability for coronavirus-related personal injury, medical malpractice, or wrongful death lawsuits, whether through laws or temporary executive orders. The language of these liability shields varies by state. For the most part, though, the provisions do not protect nursing homes that have engaged in "gross negligence." It's unclear exactly how state courts will interpret what constitutes "gross negligence" in the age of COVID-19, and what the applicable standard of care is during these unprecedented times. Also, keep in mind that state and federal recommendations, regulations and standards around COVID-19 are subject to change .

If you are considering legal action, you should consult an attorney who handles nursing home abuse and neglect cases.

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