Nursing Home Legal Alert - 6/09/2020

An important message from the Hurwitz & Fine COVID-19 Response Team

This legal alert contains timely news on the impact of COVID-19 on medical and nursing home liability claims.
 
On June 6, 2020, Governor Cuomo issued Executive Order 202.38, which extends the tolling of statute of limitations to July 6, 2020.  Also included are the following provisions:

• Business owners shall have the discretion to require individuals to undergo temperature checks prior to being allowed admittance.
• Permits restaurants and bars to serve patrons food or beverage on-premises only in outdoor space, and to expand the premises licensed by the State Liquor Authority to use contiguous public space (ex., sidewalks or closed streets) and/or otherwise unlicensed contiguous private space under the control of such restaurant or bar, subject to reasonable limitations and procedures set by the Chairman of the State Liquor Authority.
• Permits any non-essential gatherings for houses of worship at no greater than 25% of the indoor capacity of such location, provided it is in a geographic area in Phase 2 of re-opening, and further provided that social distancing protocols and cleaning and disinfection protocols required by the Department of Health are adhered to.

 
Hundreds Died at Nursing Homes with Spotless Infection Inspections
More than 600 residents have died from COVID-19 at 25 New York City nursing homes that received completely clean bills of health for controlling the spread of infections per Department of Health inspection reports. This includes facilities with some of the highest coronavirus death tolls in the nation, several of which underwent multiple inspections with zero deficiencies found.
 
This analysis tracks with early results from research conducted by University of Chicago professor R. Tamara Konetzka. Professor Konetzka testified before the U.S. Senate on May 21, 2020 that her research demonstrated that a facility’s history of quality care, Nursing Home Compare ratings, non-profit or for-profit ownership structure, or proportion of Medicaid residents had no bearing on the likelihood of COVID-19 infections. The racial makeup of a nursing home’s population meanwhile, had a much larger influence on the chance of outbreaks.
 
Professor Konetzka concluded that “while some nursing homes undoubtedly had better infection control practices than others, the enormity of this pandemic, coupled with the inherent vulnerability of the nursing home setting, left even the highest-quality nursing homes largely unprepared.”
 
 
CMS Issues Guidance to States on Reopening Nursing Homes
The Centers for Medicare & Medicaid Services recently released guidelines on reopening nursing homes, while emphasizing that nursing facilities will be among the last institutions that can safely reopen and should lag behind the community’s reopening by 14 days.
 
Per their guidance, states have flexibility on deciding how the criteria should be implemented given the variations in how the pandemic has affected different communities. The factors listed to inform the relaxation of restrictions include:

• A community’s case status;
• A nursing home’s case status;
• Adequate staffing levels;
• Local hospital capacity;
• Universal source control i.e. residents and visitors wearing face coverings;
• Access to adequate testing; and
• Access to sufficient personal protective equipment (PPE).

Despite this flexibility suggested, the agency adamantly recommended that nursing homes secure COVID-19 testing for all residents and staff before relaxing any restrictions, and that all staff should be screened daily and tested weekly, with further testing of residents necessary upon coronavirus symptoms.
 
 
Death Benefits Provided for Families of Frontline Government Workers Who Die of COVID-19
New York Governor Cuomo signed Senate Bill S8427 into law providing state death benefits to families of frontline public sector workers who died from COVID-19. The law takes effect retrospectively to March 1, 2020, and provisions of the law will expire and are deemed repealed on December 31, 2020.
 
The requirements for qualification include:

• The employee was enrolled in an eligible retirement system;
• The employee worked on or after March 1, 2020;
• The employee worked in person, whether at the normal place of work or at another assigned place of work;
• The employee contracted COVID-19 within 45 days of working;
• The employee died on or before December 31, 2020; and
• COVID-9 caused or contributed to the employee’s death.

It should be noted that the law does not require proof that the employee contracted COVID-19 in the course of employment. All that is required is (1) a physician, nurse practitioner, or physician’s assistant diagnosing COVID-19 or a diagnostic test confirming COVID-19; and (2) either the death certificate stating that COVID-19 caused or contributed to the death. Any ordinary death benefit which has already been paid will be used as an offset against this new accidental death benefit.
 
 
NY Bill Would Repeal COVID-19 Immunity for Nursing Homes
Democratic New York assemblyman Ron Kim has introduced state legislation that would repeal criminal and civil liability protections for nursing home administrators and executives during the coronavirus pandemic enacted by Governor Cuomo in April. Kim stated that the gross negligence exception included in the legislation is an extraordinarily high standard that effectively results in zero accountability for cases involving standard negligence.
 
While Kim indicated that the Governor may have been influenced to pass the legislation following the $2.3 Million donated to his political apparatus by hospitals, nursing homes and their lobbyists in 2018, New York’s immunity provisions are largely similar to the immunity legislation that has been passed in 35 other states nationwide.
 

 

As New York meanders through the phases of reopening, family members of facility residents are clamoring to know: “When can we visit?” The answer, perhaps disappointingly, is “It depends.” Guidance issued offers certain parameters to abide by (more testing!), while much of the practicalities are foreseen to be determined regionally. Reopening for visitors will likely be decided on a case-by-case basis by facility administrators, and we anticipate that Governor Cuomo will issue criteria for what this should look like in the coming weeks.
 
Meanwhile we welcome the testimony of Professor Konetzka, whose research substantiates our own experiences in speaking with facility executives and health directors regarding the pandemic. It is virtually impossible to prevent the transmission of COVID-19 among nursing homes and adult care facilities, even with 100% compliance with all regulations and guidance regarding the spread of the infection.

As a public service, we are pleased to present this legal alert, which aims to provide our clients and subscribers with timely information on how the COVID-19 pandemic may impact medical and nursing home claims.  In some jurisdictions, newsletters such as this may be considered: Attorney Advertising.
 
If you know of others who may wish to subscribe to these legal alerts, please feel free to forward it. If you wish to subscribe or unsubscribe, please do so at the bottom of this newsletter.

Your COVID-19 Medical & Nursing Home Defense Team
is here to answer your questions:
V. Christopher Potenza, Esq. ([email protected])
Patrick B. Curran, Esq. ([email protected])
Stephanie L. McCance, Esq. ([email protected])

For more information on our COVID-19 Legal Response Team,
including Business Services, Coverage, and Labor & Employment, click here.

For more legal updates regarding the coronavirus, click here.