Universal Testing in Nursing Homes during the Covid -19 Pandemic

Universal Testing in Nursing Homes during the Covid -19 Pandemic

The COVID-19 pandemic has been devastating to nursing home residents across the country.  New Jersey and Pennsylvania are amongst the states hardest hit with an estimated 2,600 thousand lives lost in Pennsylvania nursing homes.  New Jersey’s numbers are even worse.  Estimates indicate that nearly 53% of the death toll in New Jersey is made up of long-term care patients or staff members. In response to these staggering numbers, the Attorneys General of both New Jersey and Pennsylvania have announced that they are investigating whether these nursing home deaths are due to criminal negligence.  At the same time, both states have announced plans to ramp up testing, with a goal of testing all residents in long-term healthcare facilities for the disease.

The Criminal Investigations

Determination of criminal neglect of a care-dependent person is a serious matter.  It requires assessing when and under what circumstances caretakers may have failed to properly provide for residents’ health, safety, and welfare.  Josh Shapiro, the PA Attorney General, has indicated that his office’s “General’s Neglect Team reviews allegations regarding specific instances of mistreatment of care-dependent adults who are endangered or suffer an injury resulting from caretaker neglect to determine whether criminal charges are appropriate and if so, prosecute such cases.”

In New Jersey, Attorney General Gurbir Grewal has also opened investigations into these facilities, after police found 17 bodies piled in the corner of the morgue at the Andover Subacute and Rehabilitation Center.  “It was also the reporting that we were seeing and hearing about how bodies were being handled, about the lack of communication and transparency with families,” said Attorney General Grewal. “Because of all of those reasons, we felt an obligation to look for answers and to figure out if something went wrong, what happened, and if there are people to be held accountable, who those people are.”

To assist with their investigations, AG Grewal’s’ team has created a web portal for family members, staffers and others involved in the long-term care community to report first-hand accounts or other evidence of misconduct at a facility during the pandemic or before.  The portal will allow for the reporting of information, documents, and photographs while keeping the users anonymous. This will allow patients and their loved ones to report possible infractions at their facility without the fear of repercussion.

Universal Testing

On Tuesday, May 12, 2020, health officials in Pennsylvania released new guidance to nursing homes, suggesting those facilities which have residents or staff confirmed positive with Covid-19 should test all of their other residents and staff.  They further advised that should a facility not have the capacity to do so, they should continue to test patients displaying symptoms.  Finally, even if a facility does not have a confirmed case, they should consistently be testing at least 20% of residents and staff.

On the same day, New Jersey introduced a four-phase plan to expand universal testing throughout the state’s long-term care system. Judith Persichilli, the Acting Commissioner of public health in NJ,  advised the first phase of the plan has already begun in 16 facilities in South Jersey.  These facilities were chosen as they initially appeared to have a low number of confirmed Covid-19 cases.  However, when all 4,000 staffers and residents were tested, the infection rate was found to be much higher than previously suspected.  In fact, 9.75% of staffers, and an alarming 24.4% of residents, were infected, despite the fact that most were not actively symptomatic.

The next phase will reportedly start this week, with facilities that have fewer than five cases undergoing universal testing.  The third phase will institute universal testing at nursing homes and other long-term care facilities reporting between six and 25 cases.  The final phase of the plan will expand universal testing to all long-term care facilities. As to why testing will be performed in this manner, Persichilli said “We’re prioritizing facilities with fewer cases so immediate action can be taken to increase infection control protocols to further prevent spread and ultimately save lives,”  But what does universal testing accomplish if there is yet to be a vaccine for Covid-19?

It stands to reason that in order to curtail the outbreak, we must know who is infected.  Only in that way can we hope to contain the spread and protect those not yet infected.  Without testing, asymptomatic patients and staffers will continue to spread the virus throughout the facility.  This, in turn, puts more lives at risk and reduces the number of staff who are able to assist other patients.  And lack of staff may prove to be every bit as dangerous to residents as the Covid-19 virus itself.  As noted by Geriatric expert Dr. David Barile, many of the patients in a nursing home cannot perform even the most rudimentary daily functions necessary to survive without the assistance of a health care professional.  “You can’t just plop the tray in front of the frail elderly patients and come back an hour later and expect it to be eaten,” he said. “You need to take time and carefully feed that person. We have less aides, now. The nurses are out sick. The aides are out sick. And people simply aren’t getting fed.”

Given this, universal testing presents a critical safety threshold.  Once it is in place, the state and its various long-term care facilities will be better able to identify and segregate those infected with the virus, and slow or stop the flood of infection, which should in turn free up staff to deliver care to patients.  This belief is echoed almost verbatim by Ms. Persichilli, who recently said:  “We recognized that increased testing in these facilities, especially those that have yet to experience large outbreaks, is critical to stopping the spread.”

Why You Should Care

Even during a national health crisis, nursing homes owe a legal and ethical duty to protect and deliver necessary care to their patients.  As nursing home residents often have weak immune systems, these facilities should have robust infection control systems and protocols in place to keep their residents safe.  The virulence of Covid-19 does not provide an excuse for facilities which negligently created an environment which had a heightened level of risk due to poor infection control processes.  Similarly, negligent facilities which had been rolling the dice by keeping only shoe-string staffing levels should not be permitted to skirt liability when Covid-19 further depleted their already deficient staffing levels.  Front-line medical workers may well deserve added protections afforded by the various immunity bills which states like New Jersey have passed, but those immunities should not permit negligent nursing homes to escape liability for their reckless disregard for patient safety.  These facilities must still be required to act in accordance with the law and take all available actions to ensure their patients are provided with the highest possible level of care.

This sentiment was echoed in recent statements by New Jersey Attorney General Grewal,  who said: “I certainly understand that for many of these facilities this was the equivalent of a 500-year flood,”. “But that doesn’t mean that we shouldn’t examine how folks responded when those floodwaters started rising. And it also doesn’t mean that we shouldn’t examine how they operated before that flood, if they cut corners, if they … ignored red flags or other warnings, if they lied to regulators or others, if they put profits over patients.”

Governor Murphy endorsed this view on Tuesday, stating “And just as tragically, we have seen some in the industry be slow to respond and adapt to the emergent threat of COVID-19.”  This includes universal testing where possible and reporting all findings of infection and death to the State.  Increased universal testing will allow for patients and their family members to make informed decisions regarding the patient’s level of care.  A patient has a right to be involved with their healthcare decisions, and without being advised of the proper information, they cannot make an informed decision.  When the patient cannot make these decisions for themselves, which is sadly often the case in long-term care facilities, the onus falls upon their loved ones and this is where the universal testing data is crucially important.

The Nursing Home Abuse and Neglect lawyers at Davis & Brusca, LLC take the legal rights of nursing home residents seriously.  We strongly agree with Gov. Murphy, who recently said: “we intend to hold folks accountable, as we should and as you would want us to.”

Should you feel that your or your loved one’s resident rights are being infringed upon by a facility, either by not allowing for communication with the outside world or not providing updated data on the safety of the facility, we urge you to take action.  Contact an experienced Nursing Home Negligence Lawyer, like Davis & Brusca, LLC, today.


The following articles were referenced in this blog: