It is often said that long-term care facilities are the 2nd most regulated industry in the U.S. behind nuclear energy. Unlike the nuclear energy field, however, LTC facilities are generally subjected to more litigation because of such regulation.
As has been widely reported, COVID-19 appears to disproportionately impact the elderly and infirm. Statistics vary depending on the source, but it is estimated that 35% or more of COVID-19 infections in the U.S. exist in those age 64 and above. Guess where the bulk of folks in that age group live? That’s right….long-term care facilities. Those most affected include approximately 75,000 residents of intermediate care facilities, 800,000 assisted living center residents, and 1.3 million nursing home residents nationwide. In addition, over 3 million people work in skilled nursing or residential care facilities.
The first death from COVID-19 in the U.S. was reported in the state of Washington from what was then known as the “Coronavirus.” Washington was where the first health care worker in a long-term care facility was diagnosed as well as the location of the first known outbreak in a long-term care facility. This nursing facility was found to have 27 of its 108 residents and 25 of its 180 staff suffering with symptoms of the disease.
The virus has since spread throughout the country with 23 states currently reporting death data. As of April 23, 2020, over 10,000 people have reportedly died as a result of this pandemic. Residents and staff of LTC facilities represent 27% of COVID-19 deaths reported in those states. Statistics show COVID-19 cases have occurred at over 4,000 facilities with over 51,000 individual cases being reported, including the referenced deaths. These are staggering numbers.
Undoubtedly, litigation will be the end result of many of the deaths at LTC facilities. The ability to successfully defend against many of these suits will be dependent on several factors – including the source of the infection (to the extent it can be determined) and the facility’s actions to prevent the initial outbreak and to manage the spread of the virus. Whatever steps were taken by LTC facilities need to have been swift and universal and put in writing.
To all these points, the LTC facility should have worked hand-in-hand with its Medical Director in approving changes in the facility’s policies and procedures as well as ensuring all CMS, CDC, and state guidelines were adopted in a meaningful fashion in dealing with this disease. Early on, CMS made several temporary changes in Medicare regulations to assist LTC facilities in dealing with this emerging problem. These included relaxing regulations on transferring patients between facilities as well as discharges and stating that LTC facilities should immediately: (i) implement symptom screenings for all residents, (ii) ensure all staff are using appropriate PPE, and (iii) use separate staffing teams for COVID-19 positive patients “to the best of their ability.” Failure to have followed these CMS directives, at a minimum, will cause a LTC facility to have a difficult time defending any death claim arising from a COVID-19 outbreak within the facility regardless of the source.
The Centers for Disease Control (CDC) has also issued a strategy guide to LTC facilities to help avoid an initial infection and/or spread of the disease within the facility to other residents or staff. These guides, though not comprehensive, are straight forward:
- Prevent COVID-19 from entering the facility:
- Restrict entry to the facility by non-caregiving staff, except for end-of-life cases
- Actively screen everyone who enters the facility. This is most efficiently accomplished by restricting ingress to the main entrance of the building, posting nursing staff to take the temperature of all entrants (including staff), providing face masks to all who enter, and providing hand sanitizer stations throughout the facility
- Cancel all field trips outside the facility
- Identify infections early:
- Actively screen all residents daily for fever and other signs of COVID-19 and, if symptomatic, immediately isolate the resident and begin appropriate transmission-based precautions
- Notify state or local health officials within 24 hours of the following occurrences:
- Severe respiratory infections resulting in hospitalization or death
- Three (3) or more residents exhibiting signs of respiratory infection
- Any individuals with suspected or confirmed diagnoses of COVID-19
- Prevent the spread of COVID-19:
- Cancel all group activities and communal dining (as to the latter, we would suggest staggering mealtimes to shrink the number of residents in the dining room at any given time, making sure to sanitize tables and chairs before the next group enters)
- Enforce social distancing among residents
- Have all staff wear appropriate PPE including gloves and face masks
- Have at least one (1) employee on day and evening shifts dedicated to cleaning and sanitizing surfaces in common areas
- If COVID-19 is identified in the building:
- Restrict residents to their rooms
- Report the case(s) as outlined above to health authorities and work with them to help prevent further spread
- Immediately assess the current supply of PPE and initiate a plan to ensure supply does not run low. (There are already reported cases where staff have been forced to reuse gloves and wear face masks beyond their recommended useful lifespan.)
- Designate a location/wing of the facility restricted solely to the care and treatment of those identified as suffering with COVID-19 infections and, as noted above, attempt to have the same staff work with these patients rather than rotating staff throughout the facility as is oftentimes done.
Hopefully, the facility timely contacted the treating physician for each resident believed to be suffering with symptoms of COVID-19 and obtained orders for treatment. When possible, the facility should request the physician authorize a transfer of the resident to a hospital for further observation and treatment. This serves not only to ensure the resident is being attended to by a physician on a regular basis but helps defend against any claims against the facility that it failed to take appropriate steps to ensure the health and safety of its other residents.
Of course, family members of the residents affected should be notified immediately and “kept in the loop” on the condition of their loved one, including information about contact with the treating physician and any planned transfer of the resident to a hospital.
In addition to the above, we strongly suggest the facility consult with its Medical Director early regarding formulating policies and procedures for the facility to deal with this and any future pandemics. The Medical Director should review and approve the newly-drafted policies and procedures; and the facility must immediately provide in-service training with staff – preferably in “shifts” to reduce the number of staff present at any one time for the training.
Last, but certainly not least, the facility should staff at higher levels than normal, without regard to state-staffing ratios, in an effort to rebut the inevitable claim the facility should be staffing by acuity of the residents.
SOME GOOD NEWS
At least six (6) states have already agreed to provide immunity from COVID-19 lawsuits for nursing homes. Massachusetts and New York have passed laws immunizing these facilities from suit due to Coronavirus; and Governors of Connecticut, Georgia, Michigan, and New Jersey have issued Executive Orders essentially granting similar immunity.
Governors in Illinois and Arizona have signed Executive Orders providing immunity from suit for “health care providers”, while not specifically referring to nursing homes, with the Illinois order referring to “health care facilities.”
Louisiana, Kentucky and Wisconsin have also passed laws immunizing health care providers.
Other states have similarly moved to provide immunity for health care facilities through either executive orders or legislation. For those not specifically naming nursing homes/long-term care facilities, immunity in those instances will undoubtedly be dependent upon the meaning of the term “health care facilities.”
COVID-19 is virtually unprecedented in this country with LTC facilities being some of the hardest hit given they are the most susceptible to its spread. For years, LTC facilities have been a hotbed of litigation regarding the care provided to our most vulnerable sector….the elderly and infirm. If all the directives and suggestions above were adopted in written form early, staff were in-serviced on their implementation, and policies were strictly followed, even one (1) death in an LTC facility will likely result in a lawsuit. However, if the facility can prove it adhered to the above, it should have a fighting chance, at the very least, at defending those claims successfully.