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Post-pandemic legal labyrinth could await nursing homes

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During the COVID-19 pandemic, legal experts say nursing homes learned valuable lessons, ranging from the importance of communication with patients and their families to the need for viable disaster planning and increased staffing options. (Photo/File)

As the COVID-19 pandemic changed the rules in almost every industry on a near-daily basis, nursing homes in particular struggled to keep up with the ever-shifting landscape and may face even more uncertainty going forward.

“One of the big challenges for the facilities has been dealing with the almost-constant rule and regulation change,” said Kelli Sullivan, a partner at Columbia law firm Turner Padget and a member of the firm’s health care litigation team. “(Guidance) from the CDC and Medicare changed literally every week, and so that was quite a challenge. Once you implement something, if it changes two or three days later, it’s a little bit like turning the Titanic. (But) I think the lessons we’ve learned, if we handle them well and take what we’ve learned, could really ultimately in the long run improve the industry. It’s going to be painful, but anything worth having always is. This was a rough year, but it has made all of the facilities a lot more cognizant of their weak spots.”

Nursing homes and residential care facilities were locked down in the first months of the pandemic, with South Carolina beginning to allow limited visitation last September and before requiring all facilities to allow visitation in March. During that stretch, family members were limited to emails or FaceTime to check on loved ones.

“I have said several times, I think that everything that stinks about getting older is made worse by COVID,” said Sarah St. Onge, an associate at Millender Elder Law in Columbia. “If you’re doing OK and you’re living at home and you’re independent and you get COVID, a week afterward, you might end up in assisted living. If you’re in assisted living, you might end up in the nursing home. If you’re in a nursing home, you might end up in a hospital. The isolation is terrible.”

Nursing homes would be well-served to put into place lessons learned during the pandemic, Sullivan said, even as they await any potential legal fallout from COVID-19 infections and deaths at facilities.

Best practices could include revamped disaster planning, increasing staffing options through resources such as temp agencies, and a commitment to “document, document, document,” she said. “Let’s say your facility is low on PPE, and you contacted supplier A, supplier B and supplier C, and you can’t get any N95 masks. It’s great you’ve done that. You’re doing your best to comply. But four years from now when you’re sued about this, you’ve got to be able to say well, here’s the evidence that I contacted supplier A to get more and supplier B or C, and I couldn’t get it, so our next best step was to do X. But if you don’t document those things, memories fade in the fog of everything that’s going on.

“Or what kind of testing were you doing on your employees at that time? Prove it. See, here’s all our temperature logs from our employees for the month of April, or here’s the COVID results from our employees for the month of April. What facilities have to do is just document, document, document. Here’s the advice at this given time. Here’s what we did to comply, and here’s the proof that we did it.”

Measuring a facility’s liability if a resident got sick or died could also prove tricky, Sullivan said.

“You kind of have to look at what did we know and when did we know it,” she said. “Say someone’s loved one got COVID in a facility. All right, when? And what was the advice at the time that they were infected? Let’s say it was April of last year. OK, things were a lot less clear for everybody in April of last year than they were in September. So we have to say OK, at the time that the resident was at the facility, what was the CDC advice? What was the Medicare advice? What was the general infectious disease advice? All right, now what was the facility doing to comply with that advice? How close were we in complying?”

Proving COVID caused the death of an elderly patient with health complications could also be difficult. 

“You would have some causation problems,” Sullivan said. “If somebody’s got underlying kidney disease, for example, and they get COVID, COVID doesn’t have a whole lot of known implications on kidneys. And so if you died of acute renal failure, did you die with COVID or did you die of COVID?”

A bill that would provide limited immunity to nursing homes is working its way through the S.C. Legislature, but “I don’t think it provides a whole lot of protection for facilities,” said Sullivan, who doesn’t expect additional legislation providing more protection. “Given the makeup of our Legislature and the way our laws are written in general, I certainly don’t think there’s going to be any blanket immunity,” she said. “There might be some immunity for simple negligence as opposed to gross negligence. There might be some caps put in place on the dollar recoveries, but I think in terms of some blanket protection, you’re not going to see that in South Carolina. It’s highly unlikely.”

Sullivan doesn’t currently have any clients dealing with COVID-related lawsuits, though “I’ve seen a couple just kind of randomly out there,” she said. “I think if the flood of litigation comes, and I’m not so sure it will, but if the flood of litigation comes, I think it will probably be toward the end of this year, maybe fall to winter this year. A couple of reasons for that: No. 1, I think plaintiffs’ attorneys want some time and distance between the pandemic and the lawsuit, because if they bring them now, every juror out there is going to think, ‘I remember March of 2020. Didn’t none of us know what we were doing. How can I blame this facility?’ But if they wait, they bring it 18 months from now or a year from now, so they’re bringing it in 2022 when our memories have faded a little bit, and hopefully we’re all vaccinated and COVID is a thing of the past, then the memories will fade.”

There are other legal issues the attorneys foresee arising in the wake of the pandemic, including employment law issues as questions of vaccine requirements arise and insurance entanglements as some carriers exclude COVID-19 liability from policy renewals.

“What kind of policies do we have about mandating that our employees take the vaccine?” Sullivan said. “We can’t really mandate that our patients take the vaccine. Let’s say you’ve got 10 or 15% of the facility that doesn’t want the vaccine, the patients. What do we do with that? Do we have to move all those folks to one wing? Do we have to warn their roommates? That’s a HIPAA problem. We can’t do that. A lot of questions surrounding those kinds of issues have arisen.

“There is no nice, pretty, clean answer. It’s very murky. But those are things that we have to have some kind of plan in place for.”

Federal statutes that prohibited people being removed from Medicaid rolls during the pandemic or excused states from meeting deadlines for application processing will also change, along with individuals’ status.

St. Onge can envision a time when “people are calling and panicking because their Medicaid has now been terminated after kind of having a grace period for a long period of time,” she said. “For some of those people, it’s going to be the right decision. For some of them, it’s going to be based upon a mistake, or something’s happened that they do need to continue to qualify for Medicaid.”

Probate courts are dealing with a backlog as operation resumes, and day-to-day legal activities have also been affected by the pandemic. “You can’t execute a will without two witnesses,” St. Onge said. “It has to be a face-to-face activity. Trying to figure out how to do that and keep everybody safe, especially because we’re working with vulnerable adults who are most susceptible to COVID, has been a challenge.”

One of the lasting lessons from the pandemic, Sullivan said, is the importance of keeping lines of communication open.

“When people can’t see their loved ones, they’re going to imagine the worst-case scenario,” she said. “Of course they are. That’s just human nature. So communicate. Some facilities did a really good job of getting iPads so their residents could FaceTime with their loved ones, or a lot of them did daily or every-other-day email blasts to the families: ‘This is what we’re doing, this is what’s going on.’ It gives a lot of comfort to the families, and down the road, it makes it a whole lot less likely that the families are going to sue. If they feel like the facility was doing everything they could and communicating and giving them updates and allowing them as much access to Grandma as possible, then they’re going to be much less likely to be angry if something bad happens.”

This article first appeared in the April 26 print edition of the Columbia Regional Business Report. 

Reach Melinda Waldrop at 803-726-7542.

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