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By Dana Walsh Sivak, Esq.
Nursing homes battling on the front lines of the COVID-19 pandemic fell victim to a series of mixed messages and misguided policies issued by the highest levels of New York’s state leadership, resulting in catastrophic loss of life among elderly New Yorkers. Nonetheless, nursing home workers rose to the challenge of caring for their residents in the face of insurmountable challenges in their time of most dire need.
There is growing outrage among New Yorkers as the numbers of COVID-19 related deaths in nursing homes, particularly among low-income and minority individuals, become known, and questions are raised as to why policies were enacted that directly placed these vulnerable individuals in nursing homes at increased risk of becoming infected with the deadly virus. From the outset, it was clear that elderly individuals, and those with pre-existing medical conditions and compromised immune systems had the highest risk of suffering life-threatening or fatal complications from the virus.
When New York became the epicenter for America’s COVID-19 outbreak, the government primarily focused on providing hospitals with the support and equipment they needed to care for sick New Yorkers, leaving nursing homes largely on their own. Nursing home operators struggled to locate and procure PPE for their staff, often at inflated prices, and address staffing shortages resulting from the increased needs of their residents and employees falling ill themselves. Without any visitors allowed into facilities, healthcare workers had to field all of the calls from concerned family members and provide the only “hand to hold” for residents fearful of contracting or dying from the virus. Unfortunately, healthcare workers who cared for these residents over months or years at their facilities were forced to watch them die, alone, often bearing witness to tearful good-byes with their families over video calls once nothing more could be done for them.
This emotional toll for nursing home workers is hardest to bear, knowing that more could have been done to support the nursing homes in their efforts to save lives, had proper policies been put into place and consistent guidance issued by the state. Nursing homes were provided conflicting guidance from the state and federal governments regarding how soon an employee could return to work after testing positive for COVID-19, resulting in some returning to work while potentially contagious. Limited testing capacity and delayed results prevented nursing homes from knowing whether residents and employees had COVID-19, further impacting their ability to prevent the spread of the illness within their walls.
The most egregious failure, however, occurred on March 25, 2020, as COVID-19 was spreading rapidly throughout the state, when the Department of Health issued a directive to nursing homes that “[n]o resident shall be denied re-admission or admission to the [nursing home] solely based on a confirmed or suspected diagnosis of COVID-19.” By placing residents with COVID-19 in nursing homes – described by Governor Cuomo as “the optimum feeding ground for this virus” – the state’s directive overwhelmed nursing homes and created a perfect storm for the virus’ spread to other residents.
Additionally, when the high death rates in nursing homes came into public view, in yet another mixed message from the state, Cuomo repeatedly pointed out that many nursing homes were “privately owned” and suggested that if they could not provide care to residents, the state would come in and “do the job” for them – perceived by many as a threat, rather than an olive branch or offer of support. This baseless distinction between nursing homes and hospitals – many of which are privately owned as well – and policies which shifted the burden from hospitals to nursing homes made clear that while hospital workers’ efforts were being appreciated and publicly lauded, nursing homes received no such support as the virus’ death toll continued to rise.
A small measure of support came through New York’s Emergency or Disaster Treatment Protection Act (EDTPA), which loosened record-keeping requirements and granted immunity from claims arising from COVID-19 related occurrences, provided that facilities use their “best efforts” to care for its residents with their limited resources. However, this did nothing to help nursing homes prevent unnecessary deaths in the first place. They were not looking for an “out” – they were hoping desperately for a lifeline, which never came.
Ultimately, on May 10, 2020, Cuomo reversed the policy requiring nursing homes to admit COVID-19 patients to their facilities, but this course reversal came too late for those impacted by the transfer of more than 4,500 COVID-19 patients to nursing homes pursuant to the original directive. The heartbreaking truth is that more than 5,800 nursing home residents lost their lives due to complications from COVID-19 in New York. We will never know if more could have been saved had New York not issued its ill-fated directive on March 25, 2020, and allowed it to remain in place for two months before rescinding the policy.
As New York has surpassed the peak of the COVID-19 outbreak, but a potential second wave looms on the horizon, we have learned valuable lessons over the past several months. We have learned that nursing home workers were the “unsung heroes” of this pandemic despite a clear lack of support from the state. Whether they provided life-saving medical care, at great risk to themselves, or offered a hand to hold during a resident’s last moments, nursing home workers each fought valiantly on the front lines of the COVID-19 crisis in a variety of meaningful ways. It is our hope that, drawing on these lessons, the state will enact policies designed to support nursing homes in their efforts to care for our elderly population going forward. However, if New York fails to do so, we must lobby for the necessary changes at the state level that allows our heroic nursing home workers to receive the support they deserve.
Genser Cona Elder Law is a full service law firm based in Melville, LI. Our firm concentrates in the areas of elder law, estate planning, estate administration and litigation, special needs planning and health care facility representation. We are proud to have been recognized for our innovative strategies, creative techniques and unparalleled negotiating skills unendingly driven toward our paramount objective - satisfying the needs of our clients.
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