Dozens of elderly residents have died from COVID-19 in Monroe County nursing homes, and advocates are questioning both the handling and reporting of those cases and the state’s Emergency or Disaster Treatment Protection Act, which partly shields nursing homes from civil litigation during the pandemic.
“If this were a fire, the first thing we would do is scramble to get people out and save their lives,” said Bruce Darling, CEO of the Center for Disability Rights. “Our nursing facilities are basically on fire. We need to get their residents out of harm’s way.”
The New York state Department of Health on Monday reported a statewide COVID-19 death toll of 3,653 in nursing homes and adult care facilities, which includes 27 in Monroe County, a number unchanged since the DOH’s April 21 report. The state DOH reported 11 deaths at St. John’s Healthcare Corp., which operates St. John’s Home, but the remaining deaths in Monroe County were not detailed. The report states that facilities with fewer than five deaths are excluded.
Kirkhaven, a member of Seniorsfirst Communities & Services, posted an update from CEO Anne Gallese last week that said 13 residents had died from the virus, while two other deaths were presumed to be from COVID-19. As of April 27, the Kirkhaven deaths did not appear on the DOH report.
Unreported deaths at the Hurlbut Nursing and Rehabilitation facility recently prompted Monroe County Commissioner of Public Health Michael Mendoza M.D. to request an investigation. On April 21, Mendoza asked DOH Commissioner Howard Zucker M.D. to look into the unreported deaths because they did not match the DOH weekly report.
“The outbreak of this virus has prohibited family and loved ones from visiting our most vulnerable during this time of crisis, causing an unbearable stress on everyone involved,” Mendoza wrote. “I do not believe that this perceived misinformation by the Hurlbut is the proper message we should be sending to the residents of our community at this time.”
The Alliance for Senior Care, a coalition of five local nonprofit skilled nursing facilities including Episcopal SeniorLife Communities, Friendly Senior Living, Jewish Senior Life, St. Ann’s Community and St. John’s on April 17 said the combined confirmed COVID-19 cases totaled 36 residents and patients and 27 employees. The alliance reported a total of 10 deaths, all of whom were residents or patients.
“As an alliance, it is our belief that these numbers will continue to increase within the next few weeks,” said Scott Schabel M.D., medical director of the Friendly Home. “We know that it’s only a matter of time before the number of confirmed cases, as well as, sadly, the number of deaths, increase — not only at our facilities but at nursing homes across the region, across the state and across the nation. This is the devastating and sobering reality of a pandemic. The enemy, COVID-19, is raging on without mercy.”
The Center for Disability Rights has proposed that the state instruct social service districts and managed care organizations to authorize Medicaid home care services for any nursing facility residents who could go home with their family. The coalition is urging the state to use Consumer Directed Personal Assistance Services to meet the needs of those individuals, allowing family members to be paid to care for their loved ones while the individual self-quarantines in their home.
The coalition also is calling on the state to provide emergency state aid and assistance to the nursing homes and other congregate facilities in the form of trained emergency personnel and PPE.
“There is much more the state can do to ensure the safety of disabled and older New Yorkers and the time is now,” said Douglas Hovey, president and CEO of Independent Living Inc.
“Their first question is what can I do to better advocate to try to help a family member,” DiPalma said. “People are concerned and I think that fear and concern is compounded by the fact that people can’t visit, they’re not allowed in, which we all understand. But it certainly adds to concern and fear.”
And it likely doesn’t assuage families’ concerns that the state has enacted the Emergency or Disaster Treatment Protection Act, which grants immunity from civil or criminal liability for “any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services.”
Article 30-D states that “it is the purpose of this article to promote the public health, safety and welfare of all citizens by broadly protecting the health care facilities and health care professionals in this state from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency.”
“It went another step too and among a number of things it did, it also said that the health care providers were going to be relieved of record keeping requirements that are part of our state regulations,” DiPalma noted of the executive order. “Basically, health professionals have a duty and a requirement to maintain medical records that accurately reflect both the evaluation of patients … and the ongoing treatment of those patients.”
In a vacuum, where everyone is grateful for health care workers who are working the front lines, the immunity makes sense, DiPalma said.
“We want to be respectful of all our health care providers that we are grateful for. We want to be understanding of these emergent and completely different circumstances we are all in, in these uncharted waters,” she added. “Nobody comes to an attorney to sue somebody just to sue somebody. The typical family and client that may reach out to me for any of the number of things I do, including the nursing home work, are families that typically have never been involved in litigation and never thought that they would be in that position, but because of injury and/or death, they become so concerned about what they saw, that’s what brings the action.”
DiPalma said that when those who advocate for nursing home residents saw the executive order it hit a raw nerve.
“From our perspective, as advocates for residents, the system has been broken for a very long time,” she explained. “Anytime residents and their families come to us and we see injuries and/or death, when you begin to dig into the records and have conversations the things that led to the injury or death generally come down to two problems: one is inadequate and insufficient staffing. The second problem is you have this combination of insufficient staffing with what has historically been poor record keeping. You can understand how it can happen when you don’t have enough staff.”
Insufficient staffing combined with poor record keeping can result in miscommunication and mistakes, she added. Add to that a Department of Health that investigates nursing home complaints but also is overtaxed, and it’s a recipe for disaster, DiPalma said.
“And now you’re giving immunity,” she said. “It takes a system that was already broken and exacerbates the concerns with care, communications, proper delivery of care, investigation of complaints, etc.”
But both Gov. Andrew Cuomo and state Attorney General Letitia James have agreed to protect nursing home residents following a barrage of complaints about behaviors.
“That’s a positive thing,” DiPalma said. “I think from a realistic perspective, my concern is who’s doing that in this moment? Where does that capacity come from? As an advocate for nursing home residents I would say that those investigations of nursing homes before COVID were less than thorough at times so I don’t think it provided any real level of comfort to anyone who is an advocate for residents and families.”
By law, nursing homes must require PPE and temperature checks for staff; isolate COVID-19 patients; separate staff; notify residents and the families within 24 hours if any resident tests positive for the virus or dies as a result of COVID-19; and readmit COVID-19 positive residents only if the nursing home has the ability to provide adequate care.
Some families have said notifications are lacking.
“The state has very strict guidelines on privately run facilities,” Cuomo said last week. “They get paid to take care of a resident. That resident must have a state directed level of care. If they cannot provide that they can’t have the resident in their facility, period. Those are the rules.”
The state has imposed a $2,000 fine per violation, per person, per day, DiPalma noted, on nursing homes that are not following notification guidelines. Subsequent violations carry a fine of up to $10,000 and up to a year in prison.
“We recognize that the most vulnerable New Yorkers are continuing to suffer through this crisis at nursing homes across the state. While our Medicaid Fraud Control Unit continues to investigate allegations of abuse and neglect in the system, we launched a hotline where residents, families or members of the public can share complaints about nursing homes that have not provided required communications with families about COVID-19 diagnoses or fatalities,” James said in a statement last week. “I am grateful to the workers in our nursing homes who continue to serve and support our vulnerable residents. These workers deserve our respect and must also be tested and protected during this time.”
The Alliance for Senior Care echoed that last sentiment.
“Like hospitals, nursing homes and our care workers are on the front lines of today’s public health crisis,” St. Ann’s Community President and CEO Michael McRae said in a statement. “The coronavirus pandemic has caused immense suffering across the country, especially among our most at-risk population – the elderly. The stress and anguish that our residents, families and health care workers have had to endure is heartbreaking.”
At the moment, the most DiPalma can offer many of her clients is support and patient listening, she said. And, she said, the immunity law is not a free pass.
“You can still go online and enter in a nursing home complaint. You can still call the New York state nursing home complaint hotline. Those are not lawsuits, but they trigger an investigation into the home by the state,” she explained. “So what I tell families is don’t feel as though this wipes out everything.”
She suggested regularly talking to loved ones who are in nursing homes, either on the phone or via Zoom or any of a number of other ways. And she said not to lose sight of the fact that health care providers are the ones on the front lines of the pandemic.
“I would hope that with so many parts of this that we can all have a more thorough discussion finally, where we’ve got all of the voices at the table together to work through how can we improve the nursing home system for residents, for owners, for all of the stakeholders involved to fix a system that I think has been broken,” DiPalma said. “Let’s take this time to try to make it better, along with anything else we’re trying to make better as we come out of this. It’s an opportunity for more open discussion through the process.”