A Disaster Waiting To Happen: COVID-19 and Nursing Homes

By Brandon Vogel

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The coronavirus was simply the spotlight that exposed systemic problems in how care and services are provided to elderly residents in nursing homes across New York.

A history of failure to enforce laws and standards of care directly correlates to how facilities could care for their residents when confronted with a pandemic.

This was a key assessment of panelists on the CLE webinar, “Nursing Home Reform: The COVID Crisis And Regulations, Oversight And The Economics Of Nursing Homes.”

“That basic infection control, making sure the staff are washing their hands and sanitizing, really basic things are just not taking place in our nursing homes to a very wide extent,” said Richard Mollot of New York, executive director of the Long Term Care Community Coalition. “A lot of this really comes down to enforcement of those standards of minimum care.”

A May 2020 report from the U.S. Government Accountability Office found that, between 2013-2017, 82% of nursing homes were cited for infection prevention and control deficiencies in one or more years. Likewise, an NPR article revealed that at least one-third of deaths occurred in long term care facilities in 26 states.

Mollot said that while it’s not surprising that nursing homes have been hotspots particularly for elderly patients with comorbidities, “We did not adequately respond to their vulnerability. We did not take adequate steps to protect them. It exacerbated the impact on those individuals.”

The New York State Department of Health issued a controversial directive on March 25 whereby nursing homes were not permitted to refuse admission or re-admission to COVID positive residents based on a confirmed or suspected cases of COVID, if the nursing home could safely care for that resident.

The facts are that between Marc 25 and May 8, approximately 6,300 COVID-positive patients were taken into nursing homes, said John Dalli of Mineola (Dalli & Marino). The directive was reversed on May 10.

The Department of Health issued two reports in July that the March 25 directive did not contribute to the spread of COVID in facilities nor did it increase the death rate. The Cuomo administration has argued that the directive was based on guidance from the Centers for Disease Control and Prevention (CDC) that nursing home residents can’t be discriminated against. The Department of Health left the final decision on acceptance of a confirmed or suspected COVID positive resident to the nursing home administration.

The Department of Health has not released the total number of nursing home deaths. “There have been more than 6,000 confirmed nursing home deaths but that does not include those who died who were discharged from nursing homes and sent to hospitals, so we don’t have a complete number,” Dalli said.

The Empire Center filed a lawsuit in September against the Department of Health for refusing to release records showing the full count of coronavirus deaths among nursing home residents, including those that occurred after patients were transferred to hospitals.

If we know how many residents died after being discharged, we know which nursing homes are doing a better job, Dalli said. “It is important for DOH to give us this information. Until we get final numbers on deaths, we are not going to know.”

Nursing homes need residents to make money and there were residents they could not adequately protect, leading to increased spread of the virus and more deaths, Dalli said.

The vast majority of nursing homes participate in Medicaid and/or Medicare and must meet federal standards to do so. States may have additional protections, but no state can have fewer protections. Federal protections are for all the residents in a facility, including those who are not covered by Medicare or Medicaid.

“There is no one-size-fits-all approach plan of care for a resident,” said Dalli. “Each resident has to have an individually-tailored plan of care and that plan of care has to address all of the needs that the resident has. Implicitly, if a nursing home accepts a resident, they are promising they can provide that care. That means they have sufficient staffing and sufficient care.”

The Nursing Home Reform Law, passed in 1987, requires that every nursing home resident is provided the care and quality of life services sufficient to attain and maintain his or her highest practicable physical, emotional and psycho-social wellbeing. This includes sufficient staffing of nursing homes.

The law lays out specific resident rights, from good care and monitoring to quality of life that maximizes choice, dignity and autonomy.

Mollot said that every facility has to have an effective plan and an infection preventionist in the facility on at least a part-time basis. The CDC has reported that there are annually one to three million serious infections in U.S. nursing homes annually, resulting in upwards of 380,000 deaths.

“It is completely unacceptable,” said Mollot.  “It comes down to handwashing, basic sanitation, wiping off a needle or changing your gloves in between caring for residents. Things that we learned when we are 5 years old are not being carried out now.”

Dalli said that all of it comes down to proper staffing and training. Mollot noted that New York is one of the few states that does not have a minimum numerical staffing requirement for residents.

Very few, if any, nursing homes had a disaster and emergency plan in place, particularly for personal protective equipment (PPE), said Dalli who added that there are good nursing homes and people who try to do their best.

Dalli said that during the pandemic, he has done more social work than lawyering. In his conversations with healthcare workers, he has found that there is often a lack of staff training with respect to PPE. “You have to properly train the staff how to use it. Facilities are responsible to put these plans in place. Lack of preparation for an infiltrative virus is something that needs to be changed immediately and it’s something that can be addressed and we are hopeful that it is.”

While the federal law and its implementing regulations are strong, weak enforcement over the years has resulted in persistent, system wide failures to ensure that residents are safe and able to live with dignity, said Mollot.

“It has been decades since there has been widespread sweeping reform. said Andria R. Adigwe of Binghamton (Hinman, Howard & Kattell), who moderated the discussion. “What we are seeing in New York nationally and in the state of New York, it is evident that change is in the air and change is possible.”

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