Nursing Homes, ALFs and Other Long-Term Care Facilities Face Challenging Legal Times in the Age of COVID-19

The superintendent and former medical director of a state-run soldier’s home in Massachusetts have been indicted in what that state’s Attorney General described as the first criminal case in the country against nursing home operators related to the pandemic.

Late last month, Attorney General Maura Healey announced that Superintendent Bennett Walsh and former Medical Director David Clinton of the Soldiers’ Home in Holyoke (SHH) were indicted by a federal grand jury on five charges each of “wantonly or recklessly” committing or permitting bodily injury and another five charges each of  “wantonly or recklessly” permitting abuse, neglect, or mistreatment to an elder or disabled person. At least 76 residents of the facility died as a result of COVID-19. More than 160 residents and staff members contracted the disease in the early months of the pandemic.

The AG’s office launched an investigation in April 2020 after learning of serious issues with COVID-19 infection control procedures at the facility. The case focuses on a decision made in late March to consolidate two dementia units totaling 42 residents into one due to staffing shortages.

“This resulted in the placement of symptomatic residents, including confirmed COVID-19-positive residents, symptomatic residents, and asymptomatic residents within feet of each other, increasing the exposure of asymptomatic veterans to the virus,” according to a news release.

The AG’s Office alleges that the decision to combine the units were ultimately the responsibility of Walsh and Clinton. By doing so, it increased the likelihood that asymptomatic veterans at SHH would contract COVID-19 and put them at higher risk of death and harm.

“The residents in the consolidated unit were allegedly mingling together, regardless of COVID-19 status,” the AG’s Office alleges.

In addition to criminal charges, the nursing home faces a class-action lawsuit seeking $176 million.

In May, Pennsylvania’s Attorney General, Josh Shapiro, announced that his office had opened criminal investigations into several skilled nursing facilities after receiving complaints of criminal neglect of patients and residents. His announcement came after state health officials outlined new protocols to fight the pandemic in ALFs, nursing homes and other long-term care facilities.

Although Holoyke is the first such criminal case, it likely will not be the last involving long-term care facilities in the age of COVID-19.

OIG Investigations

The HHS Office of the Inspector General (OIG) in May announced two coronavirus-related investigations as part of its 2020 Work Plan. One focuses on auditing nursing homes’ infection control programs, the other will analyze CMS oversight efforts during the pandemic.

OIG noted in the Work Plan that “As of February 2020, State Survey Agencies have cited more than 6,600 of these nursing homes (nearly 43 percent) for infection prevention and control program deficiencies, including lack of a correction plan in place for these deficiencies.”

DOJ Investigations

On Aug. 26, the U.S. Department of Justice requested COVID-19 data from the governors of states that issued orders which, it suggested may have resulted in the deaths of thousands of elderly nursing home residents. New York, New Jersey, Pennsylvania, and Michigan required nursing homes to admit COVID-19 patients to their vulnerable populations, often without adequate testing.

The DOJ’s Civil Rights Division is looking to determine if the state orders requiring admission of COVID-19 patients to nursing homes without adequate COVID-19 testing is responsible for the deaths of nursing home residents.

Deaths Continue to Mount

A recent report in Kaiser Family Foundation found that as of August 20, 2020, more than 70,000 COVID-19 related resident and staff deaths have been reported in nursing homes and other long-term care facilities, which is a conservative estimate because not all states publish these data.

These numbers will only continue to increase and long-term care facilities likely will face significant legal challenges in the weeks and even years to come.

Failure to strictly follow COVID-19 mandates may result in, not only litigation, but license revocation, suspension or fines.

The Health Law Offices of Anthony C. Vitale will be conducting a webinar on Oct. 27 at 11 a.m. to assist the ALF provider community with compliance. If you would like to join us, click here for registration information.

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