Nursing Home Legal Alert - 6/23/2020

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.
 
New York’s New Nursing Home Law for Emergency Preparation
The new Senate Bill A10394A/S8289B signed into law by Governor Cuomo is a step forward in providing special protections to our elderly and vulnerable population ahead of the next public health emergency. Among its protections, the bill sets up safeguards to address and prepare for emergencies, including a requirement that nursing homes submit an annual pandemic emergency plan to the state commissioner of health within 90 days, to post that plan on its website, and to make it available to members of the public upon request.

The plan must include a communication plan to notify families and guardians of the medical conditions of infected loved ones at least once a day, more frequently if their conditions change, and to update the families and guardians of other patients at least once a week. This includes providing a method for allowing families to videoconference with family members daily at no cost.
 
The readiness plan also requires protection plans against infection for staff, residents and families; a plan for hospitalized residents to be readmitted to the facility after treatment; a plan to maintain at least a two-month supply of personal protective equipment, and a plan to ensure that the resident retains a place at the nursing home should they become hospitalized and have to leave the facility temporarily for treatment.
 
If the Department of Health identifies any violations, the nursing home will have 30 days to provide a plan for correction.
 

Federal Nursing Home Commission Created
Members of the White House’s new Coronavirus Commission for Safety and Quality in Nursing Homes have been announced, including Neil Pruitt Jr., former board chairman of the American Health Care Association; and Jeannee Parker Martine, the president and CEO of LeadingAge California.
 
The new commission’s mission is to review nursing homes’ response to the COVID-19 pandemic and produce recommendations for new regulations and procedures for future emergency situations. The group will work on developing recommendations on three fronts:

1. Putting nursing home residents first by ensuring they are protected from COVID-19 and improving the responsiveness of care delivery to meet the needs of all residents to maximize quality of life for residents;
2. Strengthening regulations to enable rapid and effective identification and mitigation of COVID-19 transmission in nursing homes; and
3. Enhancing federal and state enforcement strategies to improve compliance with infection control policies in response to COVID-19.

While skilled nursing providers have viewed the commission as an opportunity to establish more support for new emergencies, regulators and traditional counterparts have made it clear that they see it as an opportunity to create more demands of providers across a variety of issues.
 
Commission members will meet for the first time this week and then weekly through July. They are to issue a report on September 1, 2020 before the panel is dissolved.
 

Remote Depositions of Medical Personnel Can be Enforced
We previously reported on Administrative Order 88/20, which provides “The court shall not order or compel, for a deposition or other litigation discovery, the personal attendance of physicians or other medical personnel… who perform services at a hospital or other medical facility that is active in the treatment of COVID-19 patients.”
 
In a Decision and Order, dated June 3, 2020, Supreme Court Justice Christopher Backer limited the effect of that Administrative Order to personal attendance at a deposition, and compelled the defendants to appear at deposition by remote electronic means.
 
The Court alleviated any claims of prejudice by defendants by the prerequisite that counsel will be permitted to be personally present with the witness at the remote examination, as allowed pursuant to CPLR § 3113 (c).
 

 

As New York’s COVID-19 numbers continue to decrease across the board, the state now turns to implementing measures that will ensure further protection for our nursing home and assisted living facility residents when the next health care emergency strikes. The new nursing home law seeks to address many of the issues and controversies raised against such facilities throughout the pandemic – particularly regarding the readmission of hospitalized residents and notification of family members. How much positive influence the recommendations of the White House’s Commission will have remains to be seen, but with informed leadership at the helm, we are hopeful that the right balance will be struck with effective measures implemented nationwide. In the meantime, we look forward to New York issuing guidelines for the reopening of nursing homes and assisted living facilities, and hope to be able to report on these with our next newsletter.

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.