Nursing Home Legal Alert - 7/14/2020

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

Visitors Allowed Back In New York Nursing Homes
After months of prohibiting in-person visits to relatives in nursing homes amid COVID-19 fears, the New York State Department of Health has issued revised rules easing restrictions for facilities that are certified as virus free.
 
The rules state that visitation will be allowed if a nursing home or adult care facility has not had any coronavirus cases for 28 days, has no staffing shortages and has access to adequate testing. Only two visitors – one of whom must be at least 18 years old – are allowed per resident, and only 10% of residents may receive visitors at the same time. Visitation should be limited to outdoor areas where possible, but visitation may take place indoors in a well-ventilated place with no more than 10 appropriately distanced individuals. The visitors themselves must submit to temperature checks, be provided with hand sanitizer and a fact-sheet outlining visitor expectations, wear a mask, and remain socially distanced. Nursing homes accepting visitors will be required to send their visitation plan to the Department of Health and affirmatively attest that they are following the guidance outlined.
 
The new guidelines are unlikely to mean a flood of visitors into nursing homes – not only because of the limit on the number allowed to visit, but because finding a nursing home that has been COVID-19 free for 28 days is “pretty difficult, almost impossible right now” according to Oneida County Executive Anthony Picente Jr. Additionally, visitation may be immediately halted by the Department of Health at any time due to community or facility spread of infection, or when a facility is identified as failing to comply with the above requirements.
 

New York Agencies Issue Guidance on COVID-19 Sick Leave for Health Care Workers
The New York Department of Health and New York Department of Labor have issued joint guidance governing when health care employees are automatically deemed to be subject to a mandatory precautionary order of quarantine or isolation, thereby qualifying for paid sick leave under the New York State COVID-19 Sick Leave Law.
 
The Law requires employers to provide up to 14 days of paid sick leave (depending on the size of the employer and whether it is a public or private employer) for qualifying employees, and this guidance specifically addresses scenarios where health care employees may qualify for multiple orders of quarantine or isolation resulting in multiple periods of eligibility for paid sick leave.
 
In such circumstances, a health care employee who tests positive after a quarantine/isolation can receive paid sick leave for up to two additional separate orders. This means that an employee who returns to work after a period of sick leave and later tests positive again may be paid for a second (and third) bout of leave, and an employee who continues to test positive at the end of their first period of sick leave and has not yet returned to work may again be paid for a second (and third) continued bout of leave.
 
 
Department of Health Issues Report on COVID-19 in Nursing Homes
New York State Department of Health released its report on COVID-19 in nursing homes on July 6, 2020, following an in-depth analysis of nursing home data which concluded that COVID-19 fatalities in facilities were related to infected nursing home staff, not resident admissions. Central to the discourse surrounding New York’s nursing home fatalities has been the March 25, 2020 Executive Order directing nursing homes to accept COVID-19 positive residents from hospitals if medically stable, and this 33-page report apparently absolves the Order from blame.
 
The analysis found the following:

• The timing of staff infections correlates with the timing of peak nursing home resident mortality across the state;
• Nursing home employee infections were related to the most impacted regions in the state;
• Peak nursing home admissions occurred a week after peak nursing home mortality, illustrating that nursing home admissions from hospitals were not a driver of nursing home infections or fatalities;
• Most patients admitted to nursing homes from hospitals were no longer contagious when admitted and therefore were not a source of infection; and
• Nursing home quality was not a factor in nursing home fatalities.

According to the data, approximately 37,500 New York nursing home staff members were infected with COVID-19 between March and early June 2020 – nearly 7,000 of them were working in facilities in the month of March; during the same period, more than a third of the state’s nursing home facilities had residents ill with the virus. Given that the average length of time between COVID-19 infections to death is between 18-25 days, the link between the timing of staff infection and nursing home mortality is supported by the fact that the peak number of nursing home staff reporting COVID-19 symptoms (March 16, 2020) was 23 days prior to the date of the peak nursing home fatalities (April 8, 2020). It is therefore likely that thousands of infected employees transmitted the virus unknowingly – through no fault of their own – while working, which then led to resident infection.
 
The report does however require further scrutiny. The data analyzed only reflects residents who died inside the facilities, as opposed to those transferred to hospitals, which could skew its findings and comparisons with other states. Moreover, the report was prepared internally with facilities providing data under penalty of perjury, leading to several officials calling for an independent investigation into the matter. With such significant back and forth still occurring over the controversial March 25 Order, we anticipate an independent investigation to take place in due course.
 
 

A Note from Chris Potenza

After weeks of anticipation, the much-welcomed guidance for the reopening of nursing homes to visitors has been issued. Strict as it is, the stringency of the guidance is to be expected given the unyielding controversy surrounding New York’s treatment of nursing home residents in its pandemic response. This controversy was undoubtedly the catalyst for NYSDOH’s nursing home COVID-19 report which, though somewhat self-serving, supports the research that we have been reporting for several weeks – that transmission of the virus among nursing home facilities directly reflects the geographical spread of the community in which it is located, and is closely tied to floating staff who rotate among several facilities. With the advent of this report, the new guidance issued regarding sick leave for health care workers is appreciated in clearing up the prior ambiguity regarding workers who are re-infected or who continue to test positive after the initial two-week period.

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.
 
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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.