It is no secret that nursing homes are hot spots for infectious diseases. A recent New York Times article found over 135,000 residents and staff members of nursing homes and long term care facilities tested positive for COVID-19. To date 1/3 of all deaths related to the pandemic are from these types of facilities.
Are nursing homes and long-term care facilities following the code set before them to keep their residents safe? According to a Kaiser Health News study, the answer is no. The analysis states 74% of nursing homes received citations for failures in infection control. If they are not following the code, are they protected from litigation?
Guidelines for infectious diseases in nursing homes
The guidelines for infection control of nursing homes and long-term care facilities are found under 42 CFR § 483.80 – Infection control. Outlined is an infection prevention and control program (IPCP) that must be implemented and maintained. With 63% of nursing homes cited by government health inspectors for failing at least once protocol, these facilities were already at risk of an infectious disease or virus from spreading.
Infection prevention and control programs (IPCP)
Each facility must have an IPCP in place for “preventing, identifying, reporting, investigating, and controlling infections and communicable diseases for all residents, staff, volunteers, visitors, and other individuals providing services.” Reviewed annually, the IPCP must have written a way to identify diseases or infections before they can spread throughout the facility. It must state whom the report should go to, what precautions are necessary to prevent spread, hand hygiene, antibiotic protocols, and record-keeping of incidents. There must be training on how to handle linens to avoid the spreading of infectious diseases. Finally, the IPCP must address how to isolate a resident, the duration and restriction level during isolation, and the limitation of employees with a communicable disease to residents or residents’ food.
Designated infection preventionist
The IPCP must list an infection preventionist (IP). The IP must have professional training in one of the following: nursing, medical technology, microbiology, epidemiology, or another related field. Qualification of this training could be education, training, experience, or certification. As a part-time or full-time employee, the IP needs training in infection prevention and control, be a part of the facility’s quality assessment and assurance committee, and report to the committee on the IPCP regularly.
Focus on pneumococcal disease and influenza
Each facility must address the subject of pneumococcal disease and influenza. In the case of COVID-19, both lungs can develop pneumonia, turning deadly. Complicating the identification of COVID-19, the virus is often mistaken with the flu. This realization underscores the importance of a well-developed policy.
According to the CDC, pneumococcal infections can range from ear and sinus infections to pneumonia or bloodstream infections. A facility is required to have a plan for pneumococcal disease and influenza. It must provide information on both immunizations to residents. Information is not enough. The facility must offer residents available vaccinations within designated timeframes and allow residents to refuse. The resident’s medical record must be updated to show the resident received information on the benefits and risks, and that the resident received or refused the immunization.
Are nursing homes or long-term facilities falling short?
COVID-19, nursing homes, and long-term care facilities are an obvious match. Why is this? According to the chief medical officer for Indiana’s state social services agency, Dr. Daniel Rusyniak, “large groups of vulnerable people living together and a highly transmissible virus that may not cause symptoms in those who care for them” makes a deadly combination.
Surfaced reports revealed nursing homes experiencing COVID-19 outbreaks had been cited for failures to meet infectious control standards. The reason for the citations vary. Some facilities neglected to handle soiled linens correctly; others had not provided immunization opportunities or proper documentation. Surfaced reports even go as far as to detail staff not changing soiled gloves or washing hands, and in a few, claiming staff used dirty equipment or providing employees proper training.
Consequences to nursing homes and long term facilities failing inspections
Critics of nursing homes and long-term care facilities point out a failed inspection does not necessarily mean consequence to the nursing home. The LA Times summarized that of the nursing homes deemed deficient during a four-year span, only 1 in 75 received a high-level citation. This citation allows a resulting financial penalty.
The consequence? According to Michael Connors, an advocate for nursing home reform since the 1970s and current member of California Advocates for Nursing Home Reform, “The facilities are getting the message that they don’t have to do anything. They’re giving them low-level warnings year after year after year, and the facilities have learned to ignore them.”
Connors offered a suggestion to the California Department of Public Health. The department recently suspended conducting in-person visits to nursing homes. “We think they should be out in the facilities every day making sure that the conditions are safe for residents. They should be monitoring infection control practices. They should be checking on whether or not the facility has enough staff. And most importantly, they should be talking with the residents who’ve been shut out from everybody else.”
Infections in nursing homes and long-term care facilities
Centers for Medicare and Medicaid Services (CMS) stated that the top cause of morbidity and mortality in nursing homes is infection. These infections contributed to 380,000 deaths a year. Sadly, many of the 1 to 3 million infections are preventable. The Department of Health and Human Services reported that 52% of the events related to infections were preventable.
Before the novel coronavirus outbreak, many nursing homes and long-term care facilities now experiencing large outbreaks were not meeting protocols. In North Carolina, 9 of 17 facilities revealed a serious lack of cleanliness, injury care, or proper protocol to control the spread of infectious disease. Studies showed pneumonia in nursing homes is about 365 in every 1000 residents over the age of 65. This is ten times greater than the community ratio of the same demographic.
Infection policy violations were more prevalent in facilities with fewer staff members. Kaiser Health News analyzed nursing homes and concluded one-star nursing homes averaged 1.5 deficiencies. Those facilities rated five-star had slightly lower deficiencies, coming in at 1.3 deficiencies. Yet, despite the 13,000 deficiency ratings, a mere 108 were classified as severe. In some cases, this boiled down to PPE and sanitation methods for the staff. Others, the actual residents were not washing correctly or had situations putting them at risk of infections.
Coronavirus and nursing homes and long term care facilities
With nursing homes and long term facilities already being a hotbed for infectious disease, it was simple for COVID-19 to make its way through the residents. To date, more than 28,000 of the staff and residents of these facilities have died of COVID-19. Over 153,000 have tested positive. Yet, the US still does not have full testing capability. Likely, the number of cases is far beyond this count.
When you break down the statistics, the cases attributing to nursing homes and long term care make up only 11% of the country’s numbers. Disproportionately, the deaths make up a third of the total. In some states, the numbers make up ½ of their deaths. Because of discrepancies in how each state reports their cases and deaths, a clear comparison can be difficult. Even without this information, nursing homes and long-term care facilities are unquestionably high-risk in the COVID-19 fight.
Nursing homes seeking immunity from litigation
At the time of this article, 15 states already have some degree of protection against lawsuits due to COVID-19. States acquired this immunity through executive order or legislation. When some states declare a “state of emergency,” protections are initiated. These natural disasters are considered a legal immunity. New York’s nursing homes have protection against both civil lawsuits and criminal prosecution.
The concept of immunity for nursing homes and long-term care causes understandable unease in individuals. Advocates express concern this immunity gives nursing homes the ability to do as little as they want with no consequence. Many facilities experiencing outbreaks had citations in the past. The fear is with no threat of litigation, nothing forces them to step up their protocol.
Some organizations support the concept of immunity. “Long-term care workers and centers are on the frontline of this pandemic response, and it is critical that states provide the necessary liability protection staff and providers need to provide care during this difficult time without fear of reprisal,” said Mark Parkinson. Parkinson serves as the president and CEO of the American Health Care Association (AHCA). AHCA provides representation and membership for non-profit and proprietary facilities alike.
Debbie Gough, a lawyer with experience suing nursing homes, disagrees. “Everyone wants to see frontline health care providers protected from any kind of lawsuit, but I do think that knowing there is immunity out there could deter people from trying to get justice, and that would be a real shame.” She’s not the only one who is calling out failure in nursing homes. Pennsylvania Attorney General Josh Shapiro has open criminal investigations into many of his state’s nursing homes.
What to do if a loved one had COVID-19 due to nursing home oversight
Oversight can take many forms. It can be an understaffed or undertrained facility or not following proper protocols or record keeping. In extreme forms, it can be gross neglect. Even with immunity, gross neglect does not fall under the immunity blanket. Often also excluded is the act of not following physicians’ orders concerning sanitation, hygiene, protocols, or medications.
Nursing homes and long-term care are understandably in a ground-zero situation. However, they have a responsibility to their residents. If they caused infectious diseases to spread or death to occur, you may be entitled to compensation. Damages claimed could include medical expenses, pain and suffering, loss of enjoyment, and emotional distress.
Your loved ones should not have to worry if the facility they pay is keeping a sanitary environment aimed at the prevention of infectious disease spread. There should be no question that their infection control protocols are in line with CDC guidelines.
If you suspect your loved one has contracted COVID-19 due to failure of a nursing home or long-term care facility’s inability to maintain a safe and hygienic environment, contact The Hayes Firm today. We maintain a nationwide network of the best litigation attorneys in the world and will assist you in finding one nearby to fight for your rights and get you the compensation you deserve.