NY attorney Robert Friedman discusses rights of nursing home residents..
The Covid-19 pandemic exposed systemic problems in how care and services are provided to elderly residents in nursing homes across New York state. A history of failure to enforce laws and standards of care directly correlated to how facilities could care for their residents when confronted with a pandemic.
Basic infection control, making sure the staff are washing their hands and sanitizing, are not generally not being done in NY nursing homes. A May 2020 report from the U.S. Government Accountability Office found that, between 2013-2017, 82% of nursing homes were cited for infection prevention and control deficiencies in one or more years. Likewise, an NPR article revealed that at least one-third of deaths in 26 states occurred in long term care facilities.
The New York State Department of Health (DOH) issued a controversial directive on March 25,2020. Nursing homes were not permitted to refuse admission or re-admission to COVID-19 positive residents based on a confirmed or suspected cases of COVID-19 if the nursing home could safely care for that resident. Between March 25, 2020 and May 8, 2020 approximately 6,300 COVID-positive patients were taken into nursing homes, The directive was reversed on May 10,2020.
The DOH issued two reports in July that the March 25, 2020 directive did not contribute to the spread of COVID in facilities nor did it increase the death rate. The Cuomo administration has argued that the directive was based on guidance from the Centers for Disease Control and Prevention (CDC) that nursing home residents can’t be discriminated against. The DOH left the final decision on acceptance of a confirmed or suspected COVID positive resident to the nursing home administration.
The DOH has not yet released the total number of nursing home deaths. There have been more than 6,000 confirmed nursing home deaths but that does not include those who died in hospitals after being discharged from nursing homes.
The Empire Center filed a lawsuit in September 2020 against the DOH for refusing to release records showing the full count of coronavirus deaths among nursing home residents, including those that occurred after patients were transferred to hospitals.
Most nursing homes participate in Medicaid and/or Medicare and must meet federal standards to do so. States may have additional protections, but no state can have fewer protections. Federal protections are for all the residents in a facility, including those who are not covered by Medicare or Medicaid.
An individually-tailored care plan is required for each resident addressing all of their needs. When a nursing home accepts a resident, it is implicitly promising that it can provide that care. That means that it has sufficient staffing.
The Nursing Home Reform Law of 1987 requires that every nursing home resident be provided the care and quality of life services sufficient to attain and maintain his or her highest practicable physical, emotional and psycho-social wellbeing. This includes sufficient staffing of nursing homes. The law provides specific resident rights, from good care and monitoring to quality of life that maximizes choice, dignity and autonomy.
Every facility must have an effective plan and an infection preventionist on at least a part-time basis. The CDC reported that there are annually one to three million serious infections in U.S. nursing homes, resulting in upwards of 380,000 deaths. Basic sanitation is not being performed by staff, such as hand washing, wiping off needles and changing of gloves in between caring for residents
New York is one of the few states that does not have a minimum numerical staffing requirement for residents. Very few, if any, nursing homes had a disaster and emergency plan in place, particularly for personal protective equipment (PPE). There is often a lack of staff training on how to use PPE.
Contact the Elder Law attorneys at Friedman & Ranzenhofer, PC at 716.542.5444 if you have questions about the rights of nursing home residents.