Nursing Home Transparency During A Pandemic

What families need to know about their legal rights in Texas and across the country

Nursing homes have been hit especially hard by the COVID-19 pandemic. More than 40 percent of all COVID-19 deaths in the United States have been linked to long-term care facilities like nursing homes, according to The New York Times.

Faced with such startling numbers, many nursing homes have come under increased scrutiny. In addition, many families have questions about the rules and regulations nursing homes must follow in response to the pandemic, including:

· Are there any laws nursing homes must follow to protect residents from COVID-19, the disease caused by the Coronavirus?

· What information do nursing homes have to provide families about Coronavirus outbreaks or COVID-19 deaths in facilities?

· What rights do families have if their loved one contracts the Coronavirus or dies of COVID-19 in a nursing home?

Below, you can find the answers to these important questions, as well as additional information explaining the rights of families with loved ones living in nursing homes or assisted living facilities.

How serious is the COVID-19 pandemic in nursing homes?

Since the Coronavirus pandemic started earlier this year, more than 68,000 people who live or work in nursing homes have died of COVID-19, according to The New York Times and the U.S. Centers for Disease Control and Prevention (CDC). That figure represents 41 percent of all deaths from COVID-19 in the United States since officials began collecting that data in March. In addition, 8 percent or 402,000 of all Coronavirus cases have been linked to nursing home residents or workers.

Texas nursing homes have been hit especially hard by the Coronavirus and COVID-19. Statewide, 31 percent of all COVID-19 deaths have involved nursing home residents and workers. Specifically, Texas has reported 21,406 Coronavirus cases and 2,997 COVID-19 deaths in the state’s 1,531 nursing homes, according to The New York Times and based on statistics compiled by the CDC.

What information must nursing homes provide to families about COVID-19?

Since May, nursing homes have been required to inform families of a confirmed Coronavirus case in the facility within 12 hours, following guidelines created by the Centers for Medicare and Medicaid Services (CMS), according to AARP. The CMS successfully advocated for this reporting requirement so families would know if a loved one was at risk of contracting the Coronavirus at a specific facility.

These new rules are designed to provide “transparent and timely information to residents and their families,” CMS Administrator Seema Verma said at a White House briefing in May.

In addition, the CDC requires nursing homes to report the number of Coronavirus cases and COVID-19 deaths each week in each facility. Unfortunately, this information is not available to the public. As part of weekly reporting, each nursing home is required to report:

· The impact of the Coronavirus on residents

· The impact of the Coronavirus on facility capacity

· The impact of the Coronavirus on nursing home staff and personnel

· The amount of personal protective equipment (PPE) and supplies in the facility

· The number of ventilators and other supplies used to treat people with the Coronavirus

What safety measures have nursing homes enacted in response to COVID-19?

As part of the CDC’s guidelines for preventing the spread of the Coronavirus, the CDC has advised nursing homes to take the following steps to protect the health and well-being of nursing home residents and staff members:

· Implement aggressive social distancing measures (remain at least 6 feet apart from other people) in the nursing home.

· Remind residents and health care workers at the facility to wear a face mask if possible and wash hands frequently.

· Cancel group activities and communal dinning if there is a high risk of contracting the Coronavirus in the facility.

· Communal dinning and other group activities should only be allowed for residents who do not have COVID-19 and have not tested positive for the Coronavirus.

Many nursing homes in Texas and other states have also taken additional measures to protect the health and well-being of residents. However, these measures can vary widely from one nursing home to another. That’s why it’s critical that family members ask nursing homes to provide information on their specific protocols to protect residents and workers from the Coronavirus.

Can nursing homes prohibit family visits due to the pandemic?

When the Coronavirus pandemic was first discovered in the United States earlier this year, CMS announced in March that all visitors were prohibited from visiting nursing homes effectively immediately, unless these visits involved end-of-life situations, according to an announcement released by CMS.

Since then, family visits to nursing homes have been permitted again in 39 states, including Texas, according to AARP. However, many states that do allow visitors have very strict rules and guidelines governing family visits.

In Texas, nursing homes need state approval in order to allow families to visit loved ones at a nursing home. In addition, all visits to nursing homes in Texas must occur outdoors, according to the Houston Chronicle. As of Aug. 21, only 12 nursing homes in Texas have been approved to allow family visits, according to The Dallas Morning News.

Are there any laws nursing homes must follow in response to COVID-19?

Along with reporting each week on the number of Coronavirus cases involving residents and staff members, nursing homes must follow the following federal regulations, which were created in 2016, according to the Kaiser Family Foundation. The 2010 Affordable Care Act (ACT) also includes additional guidelines that apply to the current Coronavirus pandemic. Specifically, nursing homes must:

· Establish an infection prevention and control program designed to prevent the transmission of communicable diseases, including the Coronavirus.

· Conduct an assessment to determine what resources are necessary to care for residents during an emergency, including a pandemic.

· Create a written emergency preparedness plan.

Many other state and federal laws exist in Texas which are designed to protect the general health and well-being of nursing home residents and employees. In particular, Texas Health and Human Services (HHS) inspects nursing homes every two years to make sure the facility is in compliance with all applicable state and federal regulations, according to HHS.

Laws governing nursing homes change constantly. As a result, attorneys need to stay up to date on the latest legal developments. According to Smith & Hassler’s website, "We know the laws that apply to nursing home abuse cases in Texas. We know how the legal system works, and we’re prepared to go above and beyond for your family.”

What can families of a loved one who dies of COVID-19 in a nursing home do?

Laws vary from one state to another regarding what rights families have if a loved one dies of COVID-19 in a nursing home. In certain circumstances, families may be able to file a wrongful death lawsuit if the nursing home neglected a family member or failed to provide the necessary standard of care.

However, some states are considering enacting immunity laws that would shield nursing home from legal action, according to The Washington Post. Even so, many families nationwide have continued to take legal action against nursing homes in response to the death of a loved one or other serious health issues associated with the Coronavirus.

Can families take legal action against a nursing home in Texas due to COVID-19?

Families have the right to take legal action against nursing homes in Texas if their loved one became seriously ill or dies as a result of COVID-19. Many of these legal cases involve gross negligence on the part of the nursing home. Specifically, the nursing home may have failed to implement standard safety measures or protocols, which resulted in a deadly Coronavirus outbreak in the facility. Many wrongful death and nursing home neglect lawsuits have already been filed by families throughout Texas. These cases can often be extremely complex and often require the assistance of an experienced nursing home neglect attorney.

17 Sep 2020

By Steve Von