Respecting Our Elders, Always, But Especially In The Time Of COVID-19

A long-term care option such as a nursing home facility is always difficult to consider for a loved one. Watching a parent move from a sprawling house into a single room, exhausting their hard-earned money for the opportunity to live with hundreds of others and be dependent on strangers for their everyday activities is never pleasant. Even more so, observing (from a distance) a relative isolated and possibly dying, in a facility during an epidemic like COVID-19, is frustratingly brutal. Long-term care facilities, like assisted living, rehabilitation, and nursing homes, have been hit hard by the coronavirus, harming and killing thousands of residents and employees.

According to Theresa Tam, Canada’s chief public health officer, 81 percent of deaths in Canada occurred in nursing homes and facilities. More than one-third of the United State’s COVID-19 deaths occurred in long-term care facilities. Eleven percent of the total COVID-19 cases in the United States stem from long-term care facilities. Reportedly more than 4,800 nursing home residents have died since March 1, 2020, in the state of New York from COVID-19, which puts the state first in the nation in most COVID-19 nursing home deaths.

Contagious viruses like the flu and COVID-19 are spread easily among those living and working in close quarters. Many residents of nursing facilities have severe underlying health issues which make their contraction of the virus more serious, if not fatal. Residents interact closely with employees, requiring assistance in everything from eating to bathing to walking. As health officials learn more about the virus and its transmissions, states and facilities have taken steps to mitigate the disease’s spread, by isolating residents and monitoring employees traveling to and from work.

A significant and controversial issue in the spread of COVID-19 has been the return or admission of infected COVID-19 patients from the hospital to nursing facilities. Not only do returning patients have the ability to spread the virus, but in many cases, have displaced the already vulnerable residents, who are made to move to make room for the infected. In March, several states, such as New York, Massachusetts, and New Jersey issued mandates to lessen the hospitals’ loads transferring recovering COVID-19 patients to nursing homes. This is thought to have further spread the virus in the already affected facilities. States have since modified orders. For example, New York now requires patients to test negatively before moving to a nursing facility.

Questions, blame, and general frustration are being spewed by legislatures, facilities, and, of course, families. Who bears liability for all of this sickness and death? Across the nation, families are considering legal action, suing for neglect, abuse, and when there is a deceased loved one, wrongful death. States have been responding with laws for immunity, in varying measures, to protect frontline workers from potential lawsuits.

Like hospitals, doctors, and other healthcare workers, nursing homes are also seeking immunity from lawsuits so that they may continue to operate without the fear of legal repercussions. Immunity for nursing homes is controversial given ongoing concerns in the industry as to abuse, neglect, and other wrongdoing in nursing facilities, where the elderly and infirm are often weak and isolated.

Recently, as part of the New York State budget bill,  Governor Andrew Cuomo signed Article 30-D of the Public Health Law (Emergency or Disaster Treatment Protection Act), which protects nursing home executives with legal immunity. The law implements significant liability standards, providing immunity to nursing homes from criminal or civil liability, with the exception of gross negligence, reckless misconduct, or intentional malfeasance.

With facility residents dying in such large numbers, much criticism has been raised from all sides regarding this law, which many feel further harms the already vulnerable nursing home population. Investigations and probes into the law and the surrounding situation are being threatened. All the while our parents and grandparents wither away, not just from illness and death, but from isolation and what can only be described as our communal failure.

Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at [email protected]

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