Nursing Home Legal Alert - 9/08/2020

A Note from Stephanie McCance

Once again, we encourage our readers to register for this year’s DRI Nursing Home and ALF Virtual Seminar, set to be held virtually on Thursday, September 10, and Friday, September 11. Hurwitz & Fine is once again a proud sponsor of the occasion, which will provide attendees with valuable knowledge and insight through the informative and interactive event addressing the defense of long-term care claims, particularly in a post-pandemic climate.
 
I am certainly excited about networking with my peers and industry leaders during the conference’s breakout sessions and look forward to hearing the fantastic speakers lined up throughout the two days.
 
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.

 
Attendees can register for the event up to, and including, the day of the Seminar. We hope to see you there!


Tolling of Statute of Limitations Extended
On September 4, 2020, New York Governor Andrew Cuomo signed Executive Order 202.60, extending the provisions tolling the Statute of Limitations until October 4, 2020.

 
Nursing Home Residents Suffer Under State Visitation Requirements
We previously reported on the strict requirements imposed on New York’s nursing home facilities who wish to reopen for visitation following the state’s low COVID-19 numbers. Visitation has been allowed since July 10, 2020, but only 269 of the state’s 613 facilities have been able to open, and remain open, for loved ones, as staying COVID-19-free for 28-days has proven to be a difficult task for most. It is worth noting that the state guidance is more restrictive than what is recommended at the federal level.
 
Family members are clamoring for New York’s Legislature to implement an easing of these restrictions, as the detrimental effects of prolonged isolation are proving too much for some of society’s most vulnerable members. Elderly residents, unable to fully understand why their loved ones have not visited with them for up to six months, are becoming depressed, losing weight, and developing further health concerns.
 
While we do not anticipate a rollback of the guidance in the near-future, advocacy groups are lobbying for changes, and there has been discussion at recent Legislature hearings about finding an alternative solution. One option that is being discussed, is for each resident to designate one family member who agrees to undergo COVID-19 testing once per week, which is the same frequency by which facility staff must be tested. Another option is to reduce the 28-day waiting period in between a positive test and visitation, to 14 days. In the meantime, we encourage nursing homes to facilitate virtual visitation with family members to improve resident’s mental health and to provide reassurance and peace of mind to their loved ones.
 

DOJ Probe on States’ Nursing Home Policies Draws Criticism
The Department of Justice (DOJ) is being criticized for what some see as a politically motivated investigation into coronavirus deaths in state-run facilities. The DOJ is seeking information as it decides whether to investigate four Democrat-led states for potentially violating the civil rights of nursing home residents by requiring that facilities not turn away other COVID-19-positive residents for readmission. The DOJ said it was considering an investigation under the Civil Rights of Institutionalized Persons Act, a 40-year old federal statute meant to protect Americans in government-run institutions, such as jails, prisons, and mental health facilities.
 
The Assistant Attorney General for the Civil Rights Division issued letters last week to the governors of New York, New Jersey, Pennsylvania and Michigan, seeking information and documents about how public nursing homes in their states responded to the pandemic. Nursing home advocates and former-DOJ officials have responded that the investigation is a partisan attack intended to embarrass Democratic governors. Jonathan Smith, Executive Director for the Washington Lawyers’ Committee for Civil Rights and Urban Affairs stated that it was highly unusual for the agency to publicize such a preliminary inquiry, as that would normally be handled at a much lower level, in quieter fashion, to facilitate the provision of the information needed. The timing of the announcement, which came in the middle of the Republican National Convention and just two months before Election Day, has raised further concerns that the DOJ is being weaponized for political purposes.
 
It remains to be seen whether the information obtained as a result of the inquiry will lead to a federal investigation. In any event, just 6% of all nursing homes in the country are publicly run, raising questions about the scope of any potential investigation.