Nursing Home Legal Alert - 8/25/2020

Hurwitz & Fine's COVID-19 Legal Alert: 
Medical & Nursing Home Liability

Weekly News Alert
Tuesday, August 25, 2020
An important message from the Hurwitz & Fine COVID-19 Response Team
Federal Court Strikes Down DOL Regulations on COVID-19 Paid Leave
On August 3, 2020, a federal district judge held that four parts of U.S. Department of Labor (DOL) regulations under the Families First Coronavirus Response Act (FFCRA) are invalid. Specifically, the Court stated that the DOL had exceeded its authority in (1) excluding employees whose employers do not otherwise have work for them; (2) broadly defining the meaning of “health care provider”; (3) requiring employer consent to an employee taking FFCRA leave on an intermittent basis; and (4) requiring that an employee provide documentation prior to taking leave.
Of particular note to our readers will be the decision regarding the definition of “health care provider.” Both EPSLA and EFMLEA allow employers to exclude “health care providers” from leave benefits, and the DOL interpreted this term broadly for the purposes of FFCRA paid leave as anyone employed at a health care facility or any similar institution, employer or entity. In addition, the regulations extended the definition to employees of certain entities that contract with any “health care provider.”
The Court held that the DOL exceeded its authority because the broad definition of “health care provider” focused on the employer, not the employee. Under the FFCRA, the Court held, that only an employee who is capable of providing healthcare services could be excluded from FFCRA paid leave, not all employees of such an employer.
While the DOL will likely appeal the decision, and it may be overturned in whole or in part, employers who receive leave requests should keep in mind that these parts of the DOL regulations have now been found by one court to be invalid. Health care providers should therefore consider the impact of the decision before excluding certain employees from the benefits of paid FFCRA leave and may wish to consult with counsel when leave requests are sought before relying on the DOL Final Rule.

The Virus and The Dementia Unit
“They say not to get too close to your residents, but you can’t really help it … I do every single time.” This powerful article highlights one facility’s battle to treat COVID-19 in its most challenging unit, the S Wing, which houses those residents afflicted with Alzheimer’s and dementia conditions.
The relentless tasks to avoid transmission within the facility were made exponentially more difficult on the S Wing. Most residents did not understand the purpose of the masks provided, and often refused to wear or removed them. Social distancing residents with dementia presented unique problems for those who could not understand the protocols and would often roam the facility’s halls. Redirection to coax them back to their rooms, or to provide alternative activities could only prevent so much. Full body PPE deprived residents of the main feature they use to recognize their caregivers – their faces. Administering meals and treating residents one by one in their rooms disrupted the flow of care, and left residents isolated. Falls that would have happened out in the open – that could have been prevented – became hidden.
The first staff member to test positive was registered on April 13, 2020. By the morning of the 25th, 29 residents had tested positive for the virus. Many residents would not remember what symptoms to look out for, and seldom could articulate how they felt. Family members conducting online visitation became vital sources of information for minute changes in residents' ordinary behavior.

New York State Legislature Hearings on Nursing Home Pandemic Response Continue
More than 40 speakers were scheduled to testify at the virtual hearing held on August 10, 2020 by New York state legislators investigating the administration’s response to nursing home deaths resulting from the COVID-19 pandemic. Testimony was often conflicting, as speakers provided insight from a wide range of backgrounds and experiences. Highlights include:
  • Democratic Assemblyman Richard Gottfried, chairman of the Assembly Health Committee, raised the question of whether legislation was needed to “clamp down” on the practice of nursing homes doing business with related companies as a means of “siphoning money” out of the facilities. However, Stephen Hanse, President of the New York State Health Facilities Association group, stated that 47% of nursing homes in the state are operating “in the red right now,” and a significant number of facilities may be forced to close if Medicaid funding is cut as predicted.
  • Additional industry officials also testified that the pandemic impacted nursing homes so severely because of previous cuts to the Medicaid reimbursement rate, struggles to secure adequate amount of PPE, an early lack of testing for the virus, and nursing home staffing shortages that predated the pandemic.
  • James Clyne, President of Leading Age New York, testified that a mandate requiring long-term care facilities to have a 60-day supply of PPE continues to present a challenge, as there are “spot shortages” of N85 masks and other equipment. This was later refuted by State Health Commissioner Howard Zucker, who stated that he had spoken with industry workers who reported having the equipment that they needed.
  • Zucker also testified that the Health Department had provided a total of 14 million pieces of PPE to nursing homes throughout the pandemic. In early April, Clyne said, nursing homes were using 12 million pieces of PPE weekly.
  • Neither Cline nor Hanse offered any outright criticisms of the Health Department when asked by lawmakers whether the state sufficiently helped nursing homes contain the virus in the spring.
New York State Adult Care Facility Representative Testifies Before Legislature on COVID-19 Challenges
Lisa Newcombe, Executive Director for the Empire State Association of Assisted Living (ESAAL) provided testimony to the New York State Legislature’s residential health care facilities and COVID-19 hearing on August 3, 2020 regarding the challenges faced by adult care facilities (ACFs) throughout the pandemic. Highlights of her testimony include:
  • The repeated linking of ACFs with nursing homes in COVID-19 policy has caused confusion for the public, the press, assisted living providers, residents and families.
  • The COVID-19 data as provided by the New York State Department of Health, reflects that the virus has had a substantially greater impact on the nursing home population than the assisted living population, with far fewer COVID-19 deaths in licensed ACFs than in nursing homes.
  • ACFs have largely been left out of state and federal funding available to nursing homes and other long-term care providers. Significant unforeseeable costs associated with the pandemic now threaten the existence of these facilities.
  • State and federal support will likely be needed should there be a resurgence of the virus in New York, and the state must make ACFs a priority for PPE distribution.

A Note from Chris Potenza
New York was one of the first and hardest hit by COVID-19, with its nursing home community suffering the worst of its fate.  As the debate percolates on the measures New York took to protect its most vulnerable, I strongly encourage a read of The Virus and The Dementia Unit, a superbly written piece by Nate Hopper detailing the struggles and heartache as the virus tore through one small town nursing home. Having successfully defended our friends at the Fort Hudson Nursing Center in the past, we can attest to the incredible resilience, determination, and hard work that the facility’s staff and administration undertake each day. This article expertly articulates the struggles posed to facilities and workers who form strong personal connections with those that they care for, and is a must-read for anyone looking to gain insight into the realities of caring for and protecting society’s most vulnerable members during a once in a generation global health care crisis.
Hurwitz & Fine's COVID-19 Medical & Nursing Home Defense Team
With over 50 years of combined experience in defending doctors, nurses, and medical professionals, as well as hospitals, institutions, and nursing homes, the Hurwitz & Fine COVID-19 Medical & Nursing Home Defense Team is here for you.  The medical field and nursing home community are facing incredible pressure in dealing with this current COVID-19 outbreak that is stretching resources beyond capacity.  We are here to defend our caregivers on the frontlines of this unprecedented pandemic from claims of negligence and malpractice. 

Our defense team has the trial results and experience to vigorously defend our caregivers facing blame in these most trying of circumstances.  Patrick B. Curran has dedicated his 40-year legal career defending medical professionals and nursing homes from claims of negligence and malpractice.  He has also served as an adjunct faculty member at the University at Buffalo School of Law, and lecturer for the University at Buffalo School of Medicine and School of Nursing, as well as for other health care professional and community groups.  V. Christopher Potenza is a seasoned and trial-tested litigator, having obtained defense verdicts across New York State on complex matters. He has substantial experience defending claims at the federal, state, and appellate levels.  Stephanie L. McCance is also a member of the team, offering her international legal experience with strong analytic and organizational skills. 

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.
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