Infection Control Citations Exceed 12,000 Amid Pandemic; SNF Ratings Stagnant

Despite more than 12,000 infection control-related citations issued during the COVID-19 pandemic, most U.S. nursing homes saw no  ratings change in updated Five-Star guidance published recently, according to an article in McKnight's Long-term Care News.

According to McKnight's, Formation Healthcare Group found in analyzing the data that the prevalence of citations has not changed drastically during the pandemic, with the average health tags cited per facility dropping to 8.1 from a prior average of 8.2.  

Among more than 22,000 citations issued, more than 12,000 were related to infection control, a factor the Centers for Medicare & Medicaid Services (CMS) initially said would not affect star ratings used by the public. The agency reversed course in December.  Many were critical of the reversal, even as the new ratings were published.

Jessica Curtis, Formation’s managing partner, explained to McKnight's that infection control citations are being driven by the mandated infection control-focused surveys during the pandemic. A group of six frequent F-tags accounted for more than 8,000 citations.

Despite the inclusion of infection measures in the star calculation, nearly 12,000 facilities saw no change in their health inspection ranking, according to an analysis by Steven Littlehale, Chief Innovation Officer at Zimmet Healthcare Services Group. .

About 2,800 gained one star or more for improved RN staffing ratings, while fewer than 2,400 saw that factor drop one star or more. Nationally, staffing levels were higher in January 2021 than they were in January 2019 and 2020.  In 2019, one-third of institutions saw a rating drop specifically due to staffing levels, thanks in part to a new survey method preventing institutions from misrepresenting their level of staffing.  In all other categories, the number of institutions gaining a star or more was essentially the same as the number losing one or more.

Overall, 9,937 facilities, or about 66% nationwide, kept the same overall star rating.  

“From a macro view, this is a lot to do about nothing,” Littlehale told McKnight’s Long-Term Care News. “If you’re the provider holding the bag, being dropped from a preferred provider network, triggering loan covenants or consternation from a family member, it means something.” 

He noted that the update includes two quarters worth of COVID-impacted outcomes. He suspects a “national dip” is more likely once all of the 2020 MDS-based outcomes are calculated.

As for the “abuse” icon adopted by CMS in 2019, 459 facilities will see the icon disappear from their listing based on the latest numbers, while 262 facilities will get one.  That doesn't suggest that the incidence of reported abuse has declined, however, just that the number of facilities with a reportable incidence of abuse has declined.   Moreover, while the rating system is helpful in comparing institutions, the rating system does not accurately reflect resident safety.   

The latest star ratings also reveal major variations in how and how well states are performing their inspection duties.  “The percentage of facilities receiving deficiencies during infection control surveys vary considerably across the states,” Littlehale said. “Some states see over 60% of their facilities with IC deficiencies, while other states (are) as low as 6%.”

Littlehale told McKnight's  that the wide variation was not directly attributable to COVID outbreaks.

Analysts at Formation Healthcare likewise found discrepancies between states in reporting. Shockingly,  several states are far behind in conducting health inspections. For example, Oregon (37%), Georgia (31%), Maryland (26%) and Virginia (21%) led the nation in the share of SNFs last inspected more than two years ago.   In other words, in some states, the data on nursing homes may be inaccurate or outdated for almost one-third of the state's institutions. 

The pandemic, governments' response to the pandemic, and institutional safety and quality are only making more arguments for the already overwhelming case for aging in place.  Plan now. 

AARP Nursing Home COVID-19 Dashboard

The COVID-19 pandemic has swept the nation, killing more than 160,000 residents and staff of nursing homes and other long-term care facilities. The AARP Public Policy Institute, in collaboration with the Scripps Gerontology Center at Miami University in Ohio, created the AARP Nursing Home COVID-19 Dashboard to provide four-week snapshots of the virus’ infiltration into nursing homes and impact on nursing home residents and staff, with the goal of identifying specific areas of concern at the national and state levels in a timely manner. The dashboard looks at five categories of impact and will be updated every month to track trends over time. 

In addition, the dashboard site provides a link to state and national fact sheets with 33 additional data points providing more information about each dashboard category.  

This February 2021 dashboard release (with data for the four weeks ending January 17, 2021) shows how the COVID-19 situation in nursing homes has changed dramatically since the summer when data became available:

Among the most concerning data is that relating to staffing shortages.  Staffing shortages continue to be an ongoing problem throughout the pandemic, with 29% of nursing homes reporting a shortage of nurses or aides in the last 4 weeks.  Going back to June 2020, in every four-week period, more than one quarter of nursing homes have reported a shortage of direct care staff.  

The rates of COVID-19 deaths and cases in nursing homes remain staggeringly high as we enter the new year.  The resident death rate reached a new high, increasing from 1.88 per 100 residents in the previous four-week period to 1.95 per 100 residents in the four weeks ending January 17. 

New resident cases declined slightly from 10.8 to 9.2 per 100 residents, and new staff cases also declined from 9.3 to 8.3 per 100 residents.  These most recent case rates are still more than 3 times as high as the rates in late summer and early fall when AARP launched the dashboard, and only slightly lower than the record high numbers the previous month.

Counting both residents and staff, there were nearly 20,000 COVID-19 deaths and more than 170,000 new confirmed COVID-19 cases in nursing homes in the four weeks ending January 17.

There is considerable variation across states in both the magnitude of COVID-19 impacts, and the trajectory of those impacts.

Compared to the previous four weeks ending December 20, the resident death rate per 100 residents increased in 24 states (including Washington DC), and declined in 27 states.

Compared to the four weeks ending December 20, the rates of new resident cases and new staff cases each declined in two-thirds of states (34 states) and increased in the remaining third (17 states, including Washington DC). 

In every state, nursing homes continue to indicate a shortage of PPE (defined as not having a one-week supply of N95 masks, surgical masks, gowns, gloves, and eye protection during the last four weeks). Nationally, about 14% of nursing homes had a PPE shortage during the four weeks ending January 17, 2021.  This is a significant improvement from 18% in the previous monthly Dashboard and 28% in the summer.  Still, this means that about 1 in 7 nursing homes do not have a one-week supply of PPE during a time when deaths and are close to record highs. There is considerable variation in PPE supply among states: the proportion of nursing homes without a one-week supply of PPE ranged from less than 2% to as high as 42%.

Vaccine Mandates Threaten Viability of the Long-term Care Industry

Some long-term care facilities are mandating  COVID-19 vaccines among staff.  Mandates divide the industry in profound ways, and threaten a myriad of legal challenges.

Lauren Clason has penned an excellent article for Congressional Quarterly Roll Call, warning that vaccine mandates "have sparked ethical and legal concerns and [already] prompted some nursing home workers to quit."

The Brief History of the Vaccine

It is important, in considering the impact of the vaccine and associated mandates, to appreciate the brief history of the vaccine.  Bluntly, it is neither normal nor organic.  On December 11, 2020, the FDA issued an Emergency Use Authorization ("EUA") for the Pfizer-BioNTech COVID-19 vaccine. Two days later, the first shipment of the vaccine left the manufacturing plant. Vaccinations began on December 14, 2020. Subsequently, on December 18, 2020, the FDA issued an EUA for the Moderna COVID-19 vaccine. The first shipments of the Moderna vaccine left a distribution center on December 20, 2020. An FDA report issued on December 8, 2020, highlights the unknowns that exist when a vaccine receives an EUA, including the limited amount of data to support the effectiveness of the Pfizer-BioNTech vaccine against asymptomatic infection and its unknown effect against transmission of COVID-19 from individuals who are infected despite vaccination. 

While many articles implicitly or explicitly assail workers (or anyone) who expresses doubts or concerns regarding the vaccine, these authors ignore the the "unknowns" that inherently exists when a vaccine receives an EUA.  Whether these "unknowns" merit refusal or delay, is not an objective fact, notwithstanding the narrative of most authors.  Worse, failure to acknowledge rational concerns only substantiates irrational concerns;  the motives of vaccine proponents are more readily assailable when they are not truthful about "unknowns."    

Regardless, long-term care workers have not rushed to receive the vaccine as public health experts battle everything from unsubstantiated conspiracy theories to the simple fears that come with a novel virus and a more novel vaccine. In context, however, the historical success with vaccination utilization by long-term care industry staff is poor; nursing homes historically trail other health care institutions in vaccinations (see CDC Reports That SNF Workers Most Likely Among Health Care Workers to Forego Recommended Vaccinations). 

The Law

At the federal level, the Equal Employment Opportunity Commission ("EEOC") has determined that COVID-19 meets the direct threat standard, meaning that "a significant risk of substantial harm would be posed by having someone with COVID-19, or symptoms of it, present in the workplace at the current time."   The Equal Employment Opportunity Commission (EEOC) issued guidance in December clearing COVID-19 vaccine mandates in accordance with laws like the Americans with Disabilities Act. 

The EEOC's guidance acknowledges without explanation that the FDA has an obligation to "[e]nsure that recipients of [a] vaccine under an EUA are informed … that they have the option to accept or refuse the vaccine." Based on the EEOC's guidance to date, "a mandatory vaccination policy, with appropriate carve-outs for individuals with disabilities and sincerely held religious beliefs, may be permissible under federal law," according to the excellent analysis of one of the most respected firms in America, Jones Day..  

But, even if it is lawful, there are problems: 

"Namely, no federal agency has endorsed employer-mandated COVID-19 vaccinations explicitly, and historically these agencies have stopped short of endorsing mandatory vaccinations outside of certain industries; courts may disagree with a conclusion by the EEOC that mandatory vaccination is lawful; and there is a lack of legal precedent supportive of across-the-board mandatory vaccinations for all job positions in all industries. Moreover, even if mandatory vaccination is found lawful under federal law, such a policy carries additional risks, including potential liability under state law and damage to employee relations. And notwithstanding workers' compensation exclusivity, there is an open question whether tort or similar liability could attach to an employer, and under what circumstances, if employees are harmed by an employer-mandated vaccine.  

Simply, the law pertaining specifically to emergency use authorizations, which require less efficacy and safety data than a full approval, is unclear.  Dorit Reiss, a professor at University of California, Hastings College of the Law told CQ RollCall:

The law requires that recipients be informed of the right to refuse a vaccine under emergency authorizations, but also that they be informed of the consequences. Whether the consequences can include losing one’s job is unclear.  If it goes to court, I think it’s a 50-50." 

While incentives for mandating the vaccine in elderly care setting are strong, so are the disincentives and potential disadvantages.  Employers might expose themselves to tort and negligence claims if something goes wrong, Robin Shea, a Constangy Brooks, Smith and Prophete partner told CQ Roll Call, adding:

“I would be concerned about that, and in a non-health care workplace, I would be thinking about that really hard before mandating it.”

Conclusion?  There is risk everywhere.  

Tearing Apart the Industry

As a result, the vaccine threatens the industry with workforce uncertainty and public mistrust, all amid threats of legal disputes as institutions contend with union agreements, state laws, and the vaccines’ lack of full Food and Drug Administration approval.  A vaccine mandate also raises ethical issues. Clasen writes:

"Distrust in the government is widespread among low-income communities of color, which make up a disproportionate share of the long-term care workforce. Undergoing a mandatory vaccination from whiter, wealthier bosses seems disrespectful of their historic marginalization, worker advocates say. Distrust among white staffers is also widespread."

“Our members deserve to be heard on why they’re hesitant, and there are many reasons for it that aren’t ridiculous,” Lori Porter, CEO of the National Association of Health Care Assistants, which represents 26,000 certified nursing assistants, or CNAs, told CQ RollCall.  

National polls show that as many as 70 percent of long-term care staff are still wary of the vaccine, Porter told CQ RollCall. Polling among NAHCA members is better, with about 50 percent of workers saying they’d take it.

Many CNAs are leaving the centers that are mandating vaccines.  No nursing center in America today can afford to lose CNAs.  According to Porter, there are "more than 170,000 openings for certified nursing assistants in skilled nursing facilities alone. The annual turnover rate stands at 120 percent."  Locally, the Ohio National Guard was dispatched to help staff a nursing home when staff simply failed to show up for work.  The Ohio National Guard served capably in that role, having in certain instances assisted with staffing institutions reeling from infection and self-quarantines.    

Clasen interviewed Shanna Lacy, a 38-year-old nursing assistant at an Iowa nursing home, who is, according to Clasen "opting out of the vaccine over concerns about unknown long-term effects, driven by the vaccine’s fast-tracked timeline coupled with her distrust in government."

“I don’t feel like any corporation or government or whoever should make somebody do something to their body that they don’t want to,” Lacy told CQ Roll Call.

Lacy reportedly enjoys working at her facility and told CQ RollCall that she gets the flu vaccine every year. But, she said, the pandemic is not severe where she lives, and her belief in former President Donald Trump’s claims that he won the 2020 presidential election further undermines her trust in the government’s vaccine operation. 

Lacy’s nursing home offers prize drawings to employees who take the vaccine, she said, while those who don’t are tested three days a week. She has not been told the facility would require her to take the vaccine, but if that happens, she told CQ RollCall she would find work elsewhere, or maybe even leave the field:

“I could work at a McDonald’s flipping burgers, making the same amount and not being made to take this vaccine,” she said. “Do I want to work at McDonald’s? No, I don’t. But if I had to, I would.” 

Mandates for other vaccines like the flu are common, but requiring a vaccine authorized on an emergency basis is new ground. The Atria Senior Living chain is requiring all 14,000 of its staffers to be vaccinated by May 1:  

“We’re very strong in the belief that our residents deserve to live in a vaccinated environment, and our staff deserves to work in a vaccinated environment,” CEO John Moore told CQ Roll Call. “And it’s a privilege to have access to the vaccine early.” 

Moore reported that the number of staffers who had quit since implementing the mandate was low, but that staffers who ultimately refuse the vaccine will be let go.  What constitutes "low" in an industry with 120% turnover, with a deadline still months away is unclear in the CQRollCall article. 

According to Moore and CQ RollCall, dozens of other facilities are implementing vaccine mandates: 

“No one wanted COVID. No one chose COVID,” Moore said. “There are no perfect answers. There’s only the next best answer, and that’s what we keep searching for."

In Pennsylvania, a vaccine mandate in a nursing home operated by Bucks County sparked a union dispute. The American Federation of State, County and Municipal Employees (AFSCME) filed a grievance with Neshaminy Manor, arguing that changes to employment terms are a bargaining issue under state law.

“I really feel as though this is something that can be worked out,” AFSCME District Council 88 Director Tom Tosti told CQ RollCall. “The workers there in that manor — and across every nursing home facility and every facility, whether it has mental health patients or whatever — have been working tirelessly since this pandemic hit. And to turn around and say now you’re mandated to put something into your body or you’re getting terminated isn’t fair at all for what they’ve done this past year.”

Bucks County says the mandate is on solid legal footing, pointing to the toll the coronavirus takes on the elderly. The facility lost 86 patients to the virus.

“Any staff that has not been vaccinated by the end of March could be laid off,” the county said in a statement.  

The emotions of the decision for workers are often overlooked, Pennsylvania COVID-19 task force member Joshua Uy, medical director at Renaissance Healthcare and Rehabilitation Center in Philadelphia told CQ RollCall. Explaining the mechanics of the vaccine doesn’t necessarily erase fear. According to the CQ RollCall article, all of Renaissance’s residents were vaccinated compared with only 50 percent of its staff. Uy focuses on highlighting positive emotions that the vaccine can bring, such as ending isolation. 

“I’ll try to remind them not to ignore what they’re feeling, but to sort of add other emotions, like this vaccine is hope,” he said. 

Porter said NAHCA is considering a project to leverage the families of long-term care patients. 

“CNAs don’t trust government. CNAs don’t trust their employers,” she said. “CNAs trust CNAs. Those two obstacles in the trust run deep.” 

Relying on personal doctors, whom polling shows are a trusted source for many people, doesn’t always work. In Missouri, where NAHCA is based, many doctors weren’t wearing masks as recently as December, she said.

Porter also stresses that receiving priority for a vaccine with the potential to end a pandemic is an unprecedented industry victory:

“We continue to tell our members that this was a win for us,” she said. “Don’t let it be in vain.”

The public watches intently as the drama unfolds.  Perhaps, rather than just feeding a collective fear of institutions, the public will orient its planning toward aging in place, thereby relieving stress upon both the long-term care industry and families seeking to cope with short and long-term care. 

Larry King's 2019 "Hand-written" Will Omits Wife and Splits His $50M Estate Among His Children

Celebrity estates create interest in estate planning, and are often object lessons in either poor or exceptional estate planning. The estate of late broadcasting legend Larry King, is no exception. 

King died of sepsis on January 23rd at the age of 87. King reportedly left behind a hand-written Will "advising for an even split of his fortune to his five children in the event of his death." Larry King was reportedly worth around $50 million at the time of his death. 

The Will was reportedly written on October 17, 2019, coming just two months after he filed for divorce. His seventh wife (whom he intended on divorcing), Shawn Southwick, was entirely omitted from the handwritten Will. 

The document reads, "[t]his is my Last Will & Testament. It should replace all previous writings." The Will stated that King wanted "100 percent of his funds to be divided equally among my children Andy, Chaia, Larry Jr., Chance, and Cannon." King's son Andy passed away of a heart attack in July 2020 and his daughter Chaia, died in August after being diagnosed with lung cancer. 

There was no clear reporting whether the Will was admitted to probate, and of course, at this early date, whether King's wife (intended ex-wife) will contest the Will or exercise what may be her spousal rights under state law.  

Source: Tracy Wright, "Larry King left a 'hand-written will' in 2019 seeking equal split of his $50M fortune to his five children... and leaves out ex-wife Shawn," Daily Mail (U.K.), February 11, 2021. 

Only 37% of Long-term Care Facilities Staff Vaccinated for COVID-19

While residents of nursing homes and their caregivers have been considered a top priority for COVID-19 vaccination, only 38% of nursing home staff accepted shots when they were offered.  This according a survey conducted by the Centers for Disease Control and Prevention (CDC). 

Anecdotal reports have been circulating for weeks that nursing home staff members were turning down vaccination offers, but these are the first national-level figures.  Of course, historically, nursing homes trail other health care institutions in the staff penetration of vaccines (see CDC Reports That SNF Workers Most Likely Among Health Care Workers to Forego Recommended Vaccinations). 

Dr. Radhika Gharpure, lead author of the study and a member of the CDC’s Vaccine Task Force wrote, "These findings show we have a lot of work to do to increase confidence and also really understand the barriers to vaccination amongst this population." The report cited previous polling data to suggest why employees have been declining vaccines. Many raised concerns about vaccine side effects. Others said they didn't want to be among the first to receive the vaccines, which were first authorized in December. Some said they didn't trust the government, or referenced false claims about the shots.

Residents, meanwhile, have been much more accepting of vaccines, with 78% receiving at least one shot, according to the new report, which examined vaccination rates at more than 11,000 long-term care facilities nationwide between Dec. 18 and Jan. 17.

Source, "Roughly one-third of long-term care staff vaccinated through federal program: CDC," The Hill (2/1/21).

Nursing Home Chain $5.2 Million Bonus to CEO Amid Pandemic Draws Ire

Photo 59252501 © Lightboxx | Dreamstime.com

A nursing home chain gave its former CEO a $5.2 million “retention payment” at the height of the pandemic drawing a sharp rebuke from Sen. Elizabeth Warren (D-Mass.), who sits on the Senate’s Special Committee on Aging.  Genesis operates more than 300 nursing homes across the country. More than 2,800 of its residents have died of covid-19, and despite receiving more than $300 million in state and federal emergency aid, the company said its finances are so bad that it may not be able to continue as a going concern. 

"Sen. Warren calls Genesis Healthcare executive bonus act of ‘unfathomable greed’" reads the headline to the article published in the Washington Post.  According to the article, Warren characterized the compensation as "inexplicable and unseemly” in a letter dated Jan. 27. She asked the company board to explain its decision and to provide the minutes of all meetings in 2020 where compensation was discussed. Warren also warned the company not to seek additional emergency relief from Washington.

Senator Warren's letter is available here. 

Hands-free Shoes Courtesy of Nike- The Aging in Place Connection

Go Flyease by Nike
image used under fair use

Nike has announced innovative hands-free shoes called Go Flyease. The CNN article,  "Nike Made a Hands-free Shoe and You Have to See it to Believe it," describes the new shoe:

"[I]t's Nike's first pair of lace-less sneakers that can easily be put on and taken off without using your hands. The casual shoe arrives at a time when people are touching fewer things during the pandemic and a revival of comfier counterparts that take minimal effort to take on and off...."  

The description and the video demo suggest that  donning the shoes is easy and comfortable.  These are not just traditional slip-ons, like slippers, moccasins, or crocs, which often require hands to either put on or adjust, and often fit quite loosely.  The shoe actually snaps in place around the foot when stepping into the shoe.  The article explains that:

"[t]he Go Flyease has unique features, including a tension band that secures the shoe in place of laces. Putting them on involves just stepping into the shoe so that it will snap into place. Taking them off is done by stepping on the heel." 

Aside from pandemic justification, the shoes make aging in place easier, permitting anyone to don or shed shoes without the assistance of another, and without the danger that often accompanies too loose fitting shoes, especially for folks with impaired sensitivity in their extremities. Reduced flexibility, injury, joint pain; all of these conditions sometimes make putting on and tying shoes difficult.  No longer will seniors have to accept the trade-off of a trip hazard for comfort, convenience and ease.  Congratulations Nike!  

The shoe is not yet available for order, but when it is available, you can order a pair here.  

Long-term Care Industry Forecast to Lose $94 Billion Amid Pandemic

The long-term care industry will lose $94 billion over a two-year period as a result of COVID-related costs and revenue losses, according to a new forecast from the nation’s largest nursing home association. 

The American Health Care Association/National Center for Assisted Living detailed its projections Tuesday. Its analysis found that providers spent an estimated $30 billion in 2020 on COVID-related costs, such as hiring more staff members and purchasing personal protective equipment. That number is projected to be $30 billion again for 2021.

In terms of revenue, nursing home operators have lost $11.3 billion in 2021. Provider losses are projected to rise to $22.6 billion in 2021, according to AHCA/NCAL.  

The combination of revenue declines and increased costs resulted in 143 facility closures and mergers in 2020, the report stated. That’s projected to reach 1,670 closures/mergers in 2021 if business conditions do not change. 

AHCA/NCAL is an industry advocate, of course, but it claims the findings justify the need for additional and immediate support for long-term care. The association called for allocating $20 billion to the long-term care industry through enhanced Federal Medicaid Assistance Percentage (FMAP) for long-term services and support, or through a dedicated portion to the Provider Relief Fund, top priority for vaccine distribution and access to testing and supplies. 

“Congress and the Biden Administration must prioritize the long-term care industry and ensure the dedicated front-line workers of these facilities have the necessary resources to protect their residents and themselves,” AHCA/NCAL warned.

Of course, consumers, in the end have the most to lose.  Concerns regarding quality care, security, and staffing, for example, are only heightened when the industry is not profitable.  

Source:  D. Brown, "Long-term care to lose $94 billion due to pandemic: forecast," McKnight's Long-term Care News.

Nursing Home Critics Say COVID-19 Immunity Laws Are A Free Pass For Neglect

 As nursing home residents contend with both the effects of the COVID-19 pandemic, and the already dangerous nature of institutional care care resulting from abuse, neglect, and mistakes, critics and advocates are focusing attention on liability protections afforded these institutions.

As previously discussed, these protections are already being challenged in court cases.  For those who plan to age in place, the discussion presents just another in a litany of reasons to avoid institutional care.  With more than one-third of nursing home residents being injured or killed by mistakes in institutions before COVID-19, the case for aging in place planning could not be more clear. 

The following is a reprint of the NPR article entitled, Nursing Home Critics Say COVID-19 Immunity Laws Are A Free Pass For Neglect:

Palestine Howze died April 14, 2020, in a North Carolina nursing home.

She had developed a pressure ulcer — or bed sore as they're commonly known. It flared up in December 2018 and just grew worse, says her daughter Lisa Howze. Infection set in.

"We begged them to take her to the emergency room, but they assured us that they could handle it," Howze says.

Howze and her three sisters contend that the nursing home could not. In their experience, Treyburn Rehabilitation Center in Durham didn't seem to be able to handle much. On a scale of one to five stars, the federal government gives Treyburn just one. It also gets below-average ratings on the ratio of nurses to residents. The government has fined Treyburn almost $190,000 in the past three years.

Lisa Howze and her sisters have filed a lawsuit against Treyburn Rehabilitation Center. But it's unclear whether it can proceed.

Like nearly 30 other states, North Carolina granted legal immunity to nursing homes to shield them from COVID-19 lawsuits. Nursing homes argued that they needed protection as the coronavirus raged through their facilities and the recommended safety guidance from the Centers for Disease Control and Prevention fluctuated.

But that immunity raises questions for families like the Howzes, who contend that because their mother's death had nothing to do with the coronavirus, they should be able to legally hold Treyburn Rehabilitation Center accountable.

"Palestine Howze did not have to die in that way or at that time," says Elizabeth Todd, the family's attorney. Their lawsuit is believed to be the first of its kind to challenge nursing home immunity.

The Howze sisters hadn't had a lot of luck with nursing homes in general. Treyburn was the third one they'd tried. But it was close to where they lived, so the sisters could visit often to keep an eye on things. They needed to, says Lisa Howze.

"We were there a lot and we found ourselves having to bathe her, just general things they were supposed to do," Howze says. "We'd come in several times when she hadn't been fed her tray; [it was] just sitting there."

Then COVID-19 exploded across the country, taking an especially deadly toll in nursing homes — which have accounted for more than a third of all coronavirus-related deaths. Nursing homes closed their doors in March, locking families out as the industry tried to control the outbreaks. Everything got harder. And took longer.

Palestine Howze needed specialists in wound care and IV antibiotics. Lisa Howze had her mother's power of attorney. Again, she says she begged Treyburn Rehabilitation Center to send her mother to a hospital emergency room where they could find the specialists she needed. Again, she was turned down.

"Their excuses were, 'Well, you know, the emergency room at the hospital is not taking new patients because of COVID. And she would be safer here if she stayed here. And the facility is equipped to take care of your mother.'"

None of those things turned out to be true, Lisa Howze says.

In May, a month after Palestine Howze died, North Carolina passed a sweeping liability shield for long-term-care facilities, meaning that nursing homes — with rare exceptions — were immune from lawsuits. The measure was made retroactive to March 10, a few weeks before her mother's death.

Lisa Howze and her sisters decided to sue Treyburn anyway.

"For the legislature to say that the nursing homes need protection in the middle of a pandemic, not the nursing home patients, is outrageous and it's unjust," says Todd, their attorney.

North Carolina's immunity law lasts until the pandemic is over. Todd is especially worried that the law gives a free pass to nursing homes with low staffing, like Treyburn.

"Literally, the nursing homes can take their own understaffing, their chronic understaffing, and use it as a shield to prevent any liability at all during the COVID pandemic," Todd says.

Through its attorneys, Treyburn Rehabilitation Center declined to comment.

But for many in the long-term-care industry, these immunity measures are a welcome relief, says Dave Voepel, CEO of the Arizona Health Care Association. Arizona Gov. Doug Ducey was among the first to sign an executive order granting nursing and assisted living facilities legal immunity.

ong-term-care facilities are facing a crisis of existential proportions, says Mark Reagan, the attorney for the California Association of Health Facilities.

That's because liability insurers are excluding all things COVID-19 when they renew policies.

That "would mean that any claims made regarding COVID infection, regardless of when that infection occurred in the past, would be subject to exclusion and no insurance coverage," says Reagan.

California does not have a liability shield, but the state has waivers, relaxing standards for personnel and bed space, for example. Congressional Republicans wanted a national immunity law but dropped it as part of the deal for the latest coronavirus relief package. Reagan still has hopes.

"What we are merely asking for is that caregivers and their employers don't get punished for doing the best that they could under the circumstances," he says.

But attorney Elizabeth Todd says Treyburn Rehabilitation Center wasn't doing the best it could for Palestine Howze. And she says that one of North Carolina's immunity criteria is that a facility must be acting in good faith, though that's not defined in the law.

"And so we argue the pretty shoddy state of Treyburn nursing home as COVID approached, and then as Mrs. Howze became very ill, that that was not providing health care in good faith," she says.

A Superior Court judge will decide whether to dismiss the case because of the immunity statute or allow it to continue, potentially giving Lisa Howze and her sisters their day in court.

"And for that we applaud him, because that just takes a little bit of pressure off," Voepel says, adding that it allows facilities to focus on what's most important. "We need to worry about keeping COVID out of the building."

Sometimes, he says, that cuts into the bottom line.

"Take, for instance, a 100-bed building and they really have 50 rooms, two beds per room," Voepel says. But to keep infection from spreading, those rooms may have to be converted to private rooms. So revenue is cut in half.

"It really takes its toll on the business side of the ledger," says Voepel.

Long-term-care facilities are facing a crisis of existential proportions, says Mark Reagan, the attorney for the California Association of Health Facilities.

That's because liability insurers are excluding all things COVID-19 when they renew policies.

That "would mean that any claims made regarding COVID infection, regardless of when that infection occurred in the past, would be subject to exclusion and no insurance coverage," says Reagan.

California does not have a liability shield, but the state has waivers, relaxing standards for personnel and bed space, for example. Congressional Republicans wanted a national immunity law but dropped it as part of the deal for the latest coronavirus relief package. Reagan still has hopes.

"What we are merely asking for is that caregivers and their employers don't get punished for doing the best that they could under the circumstances," he says.

But attorney Elizabeth Todd says Treyburn Rehabilitation Center wasn't doing the best it could for Palestine Howze. And she says that one of North Carolina's immunity criteria is that a facility must be acting in good faith, though that's not defined in the law.

"And so we argue the pretty shoddy state of Treyburn nursing home as COVID approached, and then as Mrs. Howze became very ill, that that was not providing health care in good faith," she says.

A Superior Court judge will decide whether to dismiss the case because of the immunity statute or allow it to continue, potentially giving Lisa Howze and her sisters their day in court.

New York Undercounted Nursing Home Death Toll by 56%; Scrutiny Turns to Other States

New York’s nursing-home death toll from COVID-19 may be more than 50 percent higher than officials claim, because Gov. Andrew Cuomo’s administration hasn’t revealed how many of those residents died in hospitals.  This according to state Attorney General Letitia James. 

James issued a damning, 76-page report, stating that some unidentified nursing homes apparently underreported resident fatalities to the state Department of Health and failed to enforce infection-control measures — with more than 20 currently under investigation.

The bombshell findings could push the current DOH tally of 8,711 deaths to more than 13,000, based on a survey of 62 nursing homes that found the state undercounted the fatalities there by an average of 56 percent.

The report further notes that at least 4,000 residents died after the state issued a controversial Cuomo administration mandate for nursing homes to admit “medically stable” coronavirus patients — which James said “may have put residents at increased risk of harm in some facilities.”

While the news from New York is horrific, New York is not alone in either poor policy that arguably caused increased nursing home COVID-19 death, or in efforts to conceal the numbers.  Daniel Greenfield, reporter for FrontPageMag began reporting on the story in April, 2020, in a story entitled, "1 in 5 Coronavirus Deaths Could Have Been Prevented by Securing Nursing Homes."  

Greenfield's article is partisan, and at times his rhetoric is incendiary, but it is quoted accurately lest one claim that the rhetoric was removed to make it seem less partisan; the reader can discern whether partisanship in whole or part colors the reportage towards inaccuracy.  He wrote:

"Over 7,000 of the country’s coronavirus deaths emerged out of nursing homes.

Of the 4,377 coronavirus deaths in New Jersey, over 1,700 died due to infections in nursing homes. That nearly 40% of coronavirus deaths in one of the hardest hit states took place in nursing homes casts a stark light on the misplaced priorities of blue states battling the pandemic by locking down houses of worship and small businesses, while putting few to no resources into protecting nursing home residents.

New Jersey’s coronavirus deaths were part of the coronavirus outbreak in 425 nursing homes. At one nursing home, after an anonymous tip, police found 17 bodies being stored in a shed.

Nearly 7,000 nursing home residents in the state have tested positive for coronavirus.

In neighboring New York, nearly 1 in 4 coronavirus deaths emerged from nursing homes. Those 3,060 deaths are only part of the story and represent an extremely incomplete picture. The Health Department had battled against releasing the information, claiming that it was protecting the privacy of residents. Even when the people pleading for the release of the information were their own loved ones.

In one facility, 17% of the residents have died. In 5 others, more than 10% are dead.

And even now, only data from a fraction of nursing homes in the state has been made public.

Why were New York authorities so reluctant to release the information? Even the partial data makes it all too clear that the severity of the death toll was not due to urban density, but poor oversight and response. If urban density were the issue, Manhattan would have some of the highest numbers. Instead it has among the lowest, while boroughs with sizable nursing homes have the highest numbers.

The actual nursing home death toll in New York may be closer to 3,316.

In New York City, while the official numbers peg it at 688, the actual numbers may be over 2,000.

And the death toll, actual or estimated, is only a part of a bigger picture with 8% of nursing home residents in the state testing positive for the virus. Those numbers make it painfully clear that the dying is likely to continue and that authorities have utterly failed to secure our most vulnerable population.

The Cuomo administration is blaming nursing homes. And while nursing homes often provide poor care and personnel often work in different facilities at the same time spreading the infection between them, it was the state that ordered facilities to accept coronavirus patients returning from the hospital.

Governor Cuomo's Department of Health had issued an order that, "no resident shall be denied re-admission or admission to the NH solely based on a confirmed or suspected diagnosis of COVID-19" and also prohibited requiring testing of returning patients. Sending hospitalized patients with coronavirus to the same mismanaged nursing homes was a death sentence for countless seniors in those facilities.

As Betsy McCaughey, the former Republican lieutenant governor, has said, "One Covid-positive patient in a nursing home produces carnage.”

.     .     . 

In Connecticut, 40% of coronavirus fatalities emerged from nursing homes.

In Virginia, the majority of the coronavirus outbreaks have taken place in nursing homes. Like New York, Virginia’s Department of Health is refusing to release the names of the facilities with outbreaks.

That means loved ones have no way to know if their families are at risk.

Governor Ralph Northam's administration is continuing to engage in the cover-up even as a quarter of the population in one facility died of the coronavirus. That outbreak was the deadliest in America.

In Illinois, Governor Pritzker's administration had fought against providing the numbers of deaths and the identity of the nursing homes with outbreaks by claiming that it was protecting the privacy of residents, but finally began putting out some numbers about coronavirus deaths in nursing homes.

1 in 4 coronavirus deaths in Cook County, an area which includes Chicago, took place in nursing homes.

In Michigan, Governor Gretchen Whitmer's administration also refused to release the names of infected facilities. What information reporters have put together indicates that over a third of coronavirus deaths in Wayne County took place in nursing homes. Every nursing home in Detroit is infected.

“We have a crisis in our nursing homes,” Mayor Mike Duggan admitted, as 35% of nursing home residents tested had the virus.

In California, 29% of the deaths in Los Angeles County have taken place in nursing homes. In nearby Long Beach, it’s as high as 72%. In one Central Valley home, 156 residents tested positive and 8 died.

The Newsom administration, like its blue state counterparts, dragged its feet on releasing nursing home information, until its feet were held to the fire.

Governor Newsom is now claiming that nursing home residents are his top priority. “This state has a disproportionate number of aging and graying individuals, and we have a unique responsibility to take care of them and their caregivers.”

Except that California, like New York, was forcing care facilities to accept coronavirus patients discharged from hospitals. Newsom, like Cuomo, has blood on his manicured hands.

The ten deadliest outbreaks in this country have taken place in nursing homes and care facilities.

While officials around the country shut down churches and synagogues, arrested people for surfing and playing catch, and sent drones flying over their backyards, little was done to secure the estimated 4,100 nursing homes out of over 15,000 in the country where coronavirus was known to have taken root.

Even though the first coronavirus outbreak in this country took place in a nursing home in Washington, and killed 43 people, the CDC failed to track the spread of the virus to nursing homes nationwide.

Instead, the CDC has been relying on "informal outreach" to track the spread and has not updated its numbers since March.

The CDC's estimate of 400 nursing homes is only about 10% of the national total.

The Trump administration took an important step by ordering nursing homes to report coronavirus deaths to the CDC, and to the residents and their families. This move puts an end to the state stonewalling that covered up coronavirus cases and their own malfeasance.

It’s the beginning. Not the end."

Last May, Greenfield revisited the scandal.  He wrote:

"While New York had banned testing as a basis for nursing home admission, in Florida, a “COVID-19 test must be negative prior to transfer to a post-acute facility.

Governor DeSantis noted that his ban on sending coronavirus patients to nursing homes is the reason why the nursing home death toll was 13 times higher in New York and 25 times higher in New Jersey.

The media falsely claims that after at least 12,000 dead grandmas and grandpas, Cuomo, Whitmer, Murphy, and Newsom did a wonderful job, and DeSantis did a terrible one. Their measure of success isn’t in grandmas saved, but in small businesses shut down, people terrified, and government power made absolute."

And if the media gets to write the history of the pandemic, that is what our children will be taught."    

Greenfield wrote recently, in light of James' report:

"This is a story I broke back in the spring. It's steadily gotten worse since then as Cuomo's decision to force nursing homes to accept infected coronavirus patients helped lead to a massive death toll.

New York isn't unique in that regard. A number of Democrat states, including New Jersey and Pennsylvania, whose health secretary, Rick Levine, was picked by Biden as his assistant health secretary, did the same or similar things. But the death toll has been huge in New York and so has the cover-up.

Cuomo has refused to release the true numbers of fatalities. Now AG Letitia James, who seems to specialize in only political investigations, has a preliminary report about the real death toll.

That's an obvious shot at Cuomo and an indication she plans to run against him.

James and her office have very little credibility, but the report is worth looking at nonetheless."  

After reciting James' findings, he noted, "[a] more extensive report would line up facilities that had admitted infected patients with those with high death tolls and combine death tolls from facilities and hospitals."  More, a comprehensive assessment would consider tracing and identify how many cases owe as their source an infected institutional care resident or worker, or a family member of either.    

There are several takeaways from the whole sordid affair, regardless of the underlying debates regarding COVID-19, generally:

• First, health care has become a partisan issue, and the health and well-being of individuals is only one, and not always the primary, objective of partisans.
• Second, where partisanship exists, information must be read and evaluated critically; figures lie, and liars figure.
• Third, in a battle between the individual versus the institution, any single individual is largely powerless against any large institution, especially where that individual is vulnerable, and this is even more profoundly obvious over a short time frame.  Although an individual with the right ideas, like Martin Luther King, can effectuate change over time, the individual will rarely see immediate success, and as a result may suffer greatly in pursuing change.  
• Fourth, in planning for one's self and loved ones, one should, as much as possible, eschew broad institutional solutions, including those of the legal, health, and  financial systems.  Generally, these are supposed to, and in most cases, actually do protect the individual, but when they fail, they fail spectacularly. 
• Fifth, plan to age in place, and, therefore, implement a legal, health, financial, and social plan to communicate, implement, and empower that objective.    

Original Source: New York Post