Nursing Home Legal Alert - 9/03/2020

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

Weekly News Alert
Thursday, September 3, 2020
An important message from the Hurwitz & Fine COVID-19 Response Team
A Note from Pat Curran
Hurwitz & Fine is once again a proud sponsor of the upcoming DRI Nursing Home and ALF Litigation Virtual Seminar, set to be held online on Thursday, September 10 and Friday, September 11.  We encourage all of our readers to register: DRI Nursing Home / ALF Litigation Seminar 2020.
I have been a member of the Steering Committee for this program for over ten years and can personally attest to what a wonderful program this is, year in and year out.  Given the current situation, it is unfortunate that we cannot gather in person to network and share our experiences across from across the country in defending these claims.  It is more important than ever however, given the pandemic and its impact on this industry in particular, that we stay connected to share our knowledge, ideas and experiences. 
Topics to be covered include:
  • The changing senior housing insurance market;
  • Medicare compliance in 2020;
  • Initial impressions of the COVID-19 Aging Services Claim;
  • Best practices for excellence in client-focused collaborative resolution strategies;
  • Implications for clinicians working with frail older patients, and their unanticipated outcomes after minor surgery;
  • Nutritional changes that can improve health, happiness and mental well-being;
  • PSOs for Aging Services Providers; and
  • Senior Housing Regulatory Update.

We are certainly looking forward to connecting with our friends and colleagues and hope you will join us for an informative and interactive event that presents both educational and professional networking opportunities!

New York State Bar Association Convenes Task Force to Review Nursing Homes and Long-Term Care Facilities
The New York State Bar Association is launching a task force to investigate why a disproportionate number of residents died from COVID-19 in nursing homes and long-term care facilities across the state. The task force will review current laws and regulations and determine whether changes are necessary to ensure that this situation does not reoccur.
The creation of this task force comes amid reports that the U.S. Justice Department is seeking data about “orders which may have resulted in the deaths of thousands of elderly nursing home residents” in several states – including New York, New Jersey, Pennsylvania, and Michigan – which could be the precursor to a federal investigation.
The task force will be co-chaired by Hermes Fernandez and Sandra S. Rivera, both of Albany. They will invite providers, advocacy groups and other interested parties to meet with the panel as it prepares recommendations for the April 2021 meeting of the NYSBA’s governing body, the House of Delegates.

New York Issues New COVID-19 and Flu Test Requirements for Hospitals and Nursing Homes
The New York State Department of Health updated its guidelines to require hospital patients and nursing home residents exposed to COVID-19 or influenza, or who have symptoms consistent with COVID-19 or influenza, to be tested for both such diseases.
Additionally, individuals who exhibit symptoms of COVID-19 prior to death while in the hospital, or on their way to the hospital, but haven’t taken a COVID-19 test within two weeks before death are required to undergo the coronavirus and influenza tests within 48-hours of death. The facilities where individuals with COVID-19 die must report the death to the NYSDOH after receiving the results of both tests. The state also updated requirements for COVID-19 and influenza testing among funeral directors, coroners, and medical examiners that come into contact with individuals who had COVID-19 or were under suspicion of having COVID-19.
A statement from the health department notes that flu season is approaching, and that the department wants to distinguish between COVID-19 and influenza with the increased testing.

COVID Legal Woes for Nursing Homes Make Sector a Liability
A leading credit rating company is raising the alarm about the reliability of the skilled nursing industry, as the sector is likely to face mounting legal woes in the wake of the COVID-19 pandemic. The report by DBRS Morningstar states that, in addition to medical liability suits at the state level, there is risk from class-action lawsuits at the federal level, noting that Pennsylvania’s Attorney General is also investigating potential criminal neglect in the state’s nursing home industry. Further, should nursing homes be found to have violated mandated standards of care, there is concern that federal and state regulators may seek to withhold payments to skilled nursing facilities, or suspend licenses of individual facilities.
The ratings issues are likely to continue to affect cash flow, depressing asset valuations and affecting borrowers’ ability to refinance for a long time to come. Rating committees may consider these lawsuits in the rating process and may assign more conservative ratings for transaction exposed to these properties, relative to their concluded cash flow. However, the staggering coronavirus-related toll adds an additional lawyer of risk for healthcare providers, and DBRS Morningstar sees elevated risk in the future.

NYSDOH Says No to Minimum Staffing Levels
The New York State Department of Health has released a report stating that there should be no minimum staffing requirements in nursing homes and hospitals. It provided, “While the Department supports measures to improve quality of care and patient outcomes, the COVID-19 pandemic has only highlighted the need to maintain workforce flexibility.”  Stephen Hanse, President of the NYS Health Facilities Association “completely agrees” with the conclusion that a one-size-fits-all approach to staffing in healthcare is inappropriate.
The report was commissioned last year to review the Safe Staffing for Quality Care Act, which has languished in the state Legislature for more than a decade. The bill would mandate that nursing home residents receive a minimum of 4.8 hours of direct nursing care each day and would also mandate that hospitals have an adequate ratio of nurses to patients.
Advocates say the bill is needed. A landmark federal study from 2001 recommends that nursing home residents get at least 4.1 hours of direct nursing care each day, but New York nursing homes provide on average just 3.4 hours, which ranks 26th in the nation according to the Long Term Care Community Coalition, a New York City based advocacy group.
But the NYSDOH report found that there are too many downsides to a safe staffing law. In order to meet the bill’s metrics, nursing homes statewide would have to hire an additional 45,000 nurses, an increase of 64%. This would cost nursing homes anywhere from $1.9 to $2.3 billion, and could force nursing homes to close if profit margins fall too low – a very real threat considering around 50% of New York’s nursing homes are currently operating in the red. Plus, those additional nurses may just not exist. The report cites a recent study in the American Journal of Medical Quality which predicts that New York may have a shortage of over 39,000 registered nurses by 2030, based on supply and demand models reflecting changes in population and age.
Nevertheless, advocates who still want the bill passed are disappointed with the report and are hoping for concrete changes in the way that nursing homes are operated, and how residents are treated.
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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