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Archive for the ‘Medical & Health Care’ Category

Potential New Reporting Requirements for Long-Term Care Facilities in the Commonwealth in Response to COVID-19

Posted on: May 14th, 2020

By: Janet Barringer, William Gildea and Kevin Kenneally

In the wake of alarming reports from other states that nursing homes were forced to accept known COVID-19 positive residents, a policy which may have caused the spike in healthy nursing home residents becoming infected, Massachusetts has proposed sweeping legislation to protect senior citizens and to require daily reporting from Long-Term Care residences to ensure patient and resident safety. The Commonwealth of Massachusetts State Legislature has proposed legislation that will impact reporting requirements for long-term care facilities, including assisted-living facilities and state correctional facilities in response to the COVID-19 pandemic.

If enacted, Massachusetts Senate Bill S.2695 would significantly impact day-to-day operations at long-term care facilities.  Facilities will have to consider how to change their respective operations to meet reporting requirements.  

The proposed legislation will demand close monitoring of COVID-19 cases of residents and employees in Long-Term care facilities and increase reporting requirements.  Massachusetts Senate Bill S.2695 proposes the Department of Public Health collect daily data sets from local Boards of Health, including but not limited to:

  • the total number of people tested for COVID-19 within the previous 24 hours;
  • the total number of people who have tested positive for COVID-19 within the previous 24 hours;
  • the total number of people who have died due to a probable or confirmed case of COVID-19 or from complications related to COVID-19, as reported in the previous 24 hours through the department’s receipt of vital records;
  • the aggregate number of people who have died due to a probable or confirmed case of COVID-19 or from complications related to COVID-19 since the governor’s March 10, 2020 declaration of a case of COVID-19, including, but not limited to:
    • gender;
    • race;
    • ethnicity;
    • primary city or town of residence;
    • age;
    • disability.

The proposed legislation calls for the Department of Public Health to publish daily reports of the data collected.  The daily reports would be compiled by geographic location, including by county and municipality, and assisted living residences licensed by the executive office of elder affairs and long-term care facilities licensed by the department of public health, including the number of COVID-19 positive cases andmortalities among residents, as well as the aggregate number of COVID-19 positive cases and mortalities among staff at each residence or facility. 

Assisted-living facilities licensed by the Executive Office of Elder Affairs and long-term care facilities licensed by the Department of Public Health will be required to notify residents and their representatives within twelve (12) hours if there is a confirmed case of or death due to COVID-19 in a resident or staff member and/or if three (3) or more residents/staff have a new onset of respiratory symptoms within the previous seventy-two (72) hours.  The proposed legislation also calls for a task force to study and make policy recommendations that address health disparities for underserved or underrepresented populations during the COVID-19 pandemic.  The proposed legislation would no longer be in effect after the governor certifies there has been no positive COVID-19 test in the Commonwealth.

If you have any questions or would like more information, please contact Kevin Kenneally at [email protected], Janet Barringer at [email protected] or William Gildea at [email protected].

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include tort claims in a post COVID-19 world, real estate issues amid the pandemic and more. Click here to view upcoming webinars.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Massachusetts: Relief Funds For Nursing Home & Other Long-term Care Facilities Fighting COVID-19

Posted on: April 27th, 2020

By: Janet Barringer and William Gildea

Massachusetts Governor Charlie Baker announced on April 27, 2020 the Commonwealth will allocate $130 Million to nursing homes and other long-term care facilities in Massachusetts to assist in the ongoing battle against COVID-19. The COVID-19 Nursing Facility and Accountability Support document states “[n]ursing facilities account for more than half of COVID-19 related deaths in the state.” The rapid rate of infection and mortality is driven by the “health status of residents, lack of infection control sophistication and for crisis management, substantial staffing issues (up to 20-40% of call out rates), and difficulty cohorting residents to decrease transmission.”

Nursing homes and other long-term care facilities should take note of this new assistance offered by the Commonwealth to help the battle against COVID-19. The Press Release provides the following:

  • Funding will support staffing costs, infection control and personal protective equipment (PPE);
  • Funding is dependent on required COVID-19 testing of all staff and residents, regular infection control audits, appropriate allocation of funding and the public release of facility performance and funding use;
    • Facilities must test all staff and residents, and report results to the Commonwealth. Facilities are also encouraged to identify and pursue testing avenues with area hospitals, EMS or other providers. The state’s mobile testing program is available for those facilities unable to set up testing.
    • All nursing facilities will be regularly audited in-person for infection control and accountability, and each will receive a baseline audit during the first two weeks of May. These clinical audits will be conducted using a 28-point Infection Control Checklist, based on DPH, CDC and industry guidance. This checklist includes infection control, PPE supply and usage, staffing, clinical care, and communication requirements.
    • Frequency of audits is dependent upon a variety of factors including: Audit Rating, historically documented infection control issues, staffing levels based on industry standard hours per patient day of care and call-out rates, level of COVID-19 infection, and quality rating by the Nursing Facility Taskforce.
  • Facilities will be scored into three ratings: in adherence (green), in adherence but warrants inspection (yellow) and not in adherence (red).
  • The Commonwealth will offer support for temporary staffing assistance for all nursing homes in need, including clinical response teams of 120 nurses and Certified Nursing Assistants deployed in teams of 10 during emergency situations, crisis management support and deployment of the Massachusetts National Guard;
  • All performance measures and funding use will be publicly reported using a mandatory reporting template, and the Commonwealth will provide consolidated information in the testing completion status by facility, COVID-19 case counts and mortality of staff and residents, and audit results. These reports will be due shortly after June 30th, and the Commonwealth will then compile and deliver a public report.
  • Funding is directly linked to an audit rating over time and, if qualified, will be dispersed biweekly over four “pay periods.”

Governor Baker promised to be “aggressive” in assisting long term care facilities impacted by COVID 19. The $130 Million in relief funds and associated steps for protection are examples of the care extended by Massachusetts to those who live and work in nursing homes and other long-term care facilities.

If you have any questions or would like more information, please contact Janet Barringer at [email protected] and William Gildea at [email protected].

State Governments Extend Limited Immunity to Healthcare Providers Engaged in Treatment of Coronavirus

Posted on: April 17th, 2020

By: Shaun Daugherty, Erin Lamb and Andy Treese

As doctors, nurses, respiratory therapists, and other healthcare providers have thrown themselves wholly into the challenge of fighting the coronavirus, some have asked whether they are exposed to new or additional exposure for medical negligence.  Governors and state legislators across the country are working to curtail such exposure by extending limited immunity to healthcare workers responding to coronavirus. 

In Georgia, Governor Kemp has issued an executive order designating employees, contractors and staff of hospitals and other healthcare facilities as “auxiliary emergency management workers” within the meaning of the Georgia Emergency Management Act.  The designation brings the workers under the ambit of O.C.G.A. § 38-3-35, which affords immunity to auxiliary emergency management workers engaged in emergency management activities, when they are complying or reasonably attempting to comply with the state’s emergency management code, regulations or emergency orders issued by state under the authority code, or with locally issued ordinances or emergency orders.  The immunity, although powerful, does not apply where a provider acts with “willful misconduct, gross negligence, or bad faith” and is therefore unlikely to complete preclude litigation.  Previously state courts have expressed a willingness to permit discovery to determine whether an individual has acted in bad faith, while other courts are reluctant to grant summary judgment even where the standard is gross negligence.

In New Jersey, where Covid-19 prompted the state Department of Public Health to issue “last resort guidance” to hospitals to address bioethical questions about rationing ventilators, Governor Phil Murphy has signed Senate Bill 2333, granting civil and criminal immunity to not only health care professionals treating Covid-19 patients, but also extending that immunity to health care facilities and health care systems, retroactive to March 9, 2020.  The Bill grants immunity to any act or omission taken in good faith by any of those people or entities, including but not limited to those engaging in telemedicine or telehealth, and in diagnosing or treating patients outside the normal scope of the professional or facility’s licensing, so long as such efforts are in support of “the State’s efforts in fighting the Covid-19 pandemic.” The bill further extends immunity to damages for injury or death “in connection with the allocation of mechanical ventilators or other scarce medical resources,” so long as the facility or system adopts and adheres to a “scarce critical resource allocation policy that at a minimum incorporates the core principles identified by the Commission of Health…”  The state senate was unable to hold hearings on the bill, but attached a statement that its intent was to grant immunity to all medical personnel supporting “the Covid-19 response.” The statement specifically notes, however, that the Bill does not grant immunity to medical care rendered in the ordinary course of medical practice, including orthopedic procedures, OB/Gyn services, and necessary cardiological procedures. The New Jersey immunity does not apply to acts constituting crimes, actual fraud, actual malice, gross negligence, recklessness, or willful misconduct.

As of this writing, Alabama, Arkansas, Arizona, Connecticut, Kentucky, Illinois, New Hampshire, Vermont and Michigan have taken similar measures, whether by legislative act or executive orders.  In New York, Governor Cuomo has extended limited immunity to healthcare providers by executive order, and legislative measures are pending.  No legislative action has been taken in Pennsylvania, though media reports indicate that advocacy groups are asking Governor Wolf for an executive order.

Please contact Shaun Daugherty at [email protected], Erin Lamb at[email protected] or Andy Treese at [email protected] if you have specific questions about the immunities afforded to healthcare workers engaged in coronavirus response.  The healthcare team at Freeman Mathis & Gary will continue to monitor the status of state and local responses to the coronavirus pandemic. 

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Nursing Homes at Highest Risk, States Respond

Posted on: April 1st, 2020

By: Shaun M. Daugherty

States across the country are taking every measure possible to fight the spreading deadly COVID-19.  One of the most at-risk groups are the elderly, especially those with lengthy lists of other health problems.  In those instances where people reside in close quarters with attendants and staff constantly moving between rooms, it can be a disaster for the residents if the virus breaches its defenses.  The reports on March 30, an eon ago in this pandemic, were that over 400 nursing facilities across the United States have countless confirmed infected residents and/or staff.  The news confirms daily that states are being hit hard with reports of high levels of outbreak in their long-term care facilities. 

The CDC issued its checklist for long-term care facilities that recommend the restriction of all visitation except in those end of life situations; restriction of all non-essential personnel; cancel all group activities and communal dining, and implement active screening of resident that show any symptoms of the disease.  Centers for Medicare & Medicaid Services (CMS) has also issued guidance for nursing homes mirroring the CDC’s recommendations. 

Some nursing homes have temporarily been converted to COVID-19 only recovery centers.  Massachusetts has 12 such facilities currently.  In New York, the mandate is that nursing facilities are ordered to accept hospital discharges, even those that have tested positive for COVID-19.  These measures are providing the desperately needed bed space in the overburdened hospital systems.     

In Georgia, Governor Brain Kemp has issued an order to have the National Guard deployed to the state’s nursing homes to provide much-needed assistance in the attempts to stop the deadly spread of this disease in its elderly population.  The main role of the National Guard at these facilities will be for education and implementation of better sanitation methods and to train the staff on more aggressive infectious disease control measures.  They will also assist in deep cleaning the facilities where necessary. 

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include the CARES Act, education claims, law enforcement, the real-world impact of business restrictions, and the viruses’ impact on the construction industry. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.** 

Federal Government Issues New CMS Guidance To Protect Nursing Home Residents From COVID-19

Posted on: March 30th, 2020

By: Kevin G. Kenneally, Michael P. Giunta and William E. Gildea

Nursing home and skilled nursing facilities have been particularly hard hit by the COVID-19 virus.  The resident populations are uniquely vulnerable and outbreaks in facilities nationwide have sparked actions to protect elderly and disabled residents.

The Centers for Medicare & Medicaid Services (“CMS”) provided new guidelines in a memorandum detailing protections for nursing home residents from COVID-19.  CMS recommends that all facilities restrict visitation of all visitors and non-essential health care personnel, absent certain compassionate care situations.  This follows on the heels of the preliminary results of the inspection of the Kirkland, Washington nursing home, which was the epicenter of the COVID-19 outbreak.  In addition to a focused inspection process provided to all facilities and inspectors, which is designed to ensure each facility is prepared to prevent the spread of the virus, the memorandum addresses additional guidance. If an individual enters a facility for a compassionate care situation, facilities should require visitors to perform hand hygiene and use Personal Protective Equipment like facemasks.  Decisions about visitation during these situations should be made on a case by case basis after careful screening of the potential visitor.  Facilities are expected to notify potential visitors to defer visitation until further notice. 

The memorandum lists specific guidelines that facilities should adhere to, including but not limited to: (1) cancelling communal dining and all group activities; (2) performing active screening of residents and staff for fever and respiratory symptoms; (3) reminding residents to practice social distancing and perform frequent hand hygiene; (4) screening all staff at the beginning of their shift for fever and respiratory symptoms; and (5) identify staff that work at multiple facilities and actively screen and restrict them appropriately.  The memorandum further discusses how facilities should consider hygiene and monitoring symptoms for persons entering/exiting facilities.  Facilities are encouraged to review and revise how their vendors deliver supplies, such as implementing dedicated drop-off locations for supplies at facilities.  If a nursing home has a resident suspected of having COVID-19, it should contact their local health department immediately. 

Instead of visits, facilities should consider offering alternative means of communications and assigning staff as primary sources of contact for residents.  If an individual enters a facility for a compassionate care situation, facilities should require visitors to perform hand hygiene and use Personal Protective Equipment like facemasks.  Decisions about visitation during these situations should be made on a case by case basis after careful screening of the potential visitor.  Facilities are expected to notify potential visitors to defer visitation until further notice.

The March 13, 2020 memorandum, in part, calls for facility staff to regularly monitor the Centers for Disease Control’s (“CDC”) website for additional information and resources. CMS recommends that facilities perform frequent monitoring for potential symptoms of respiratory infection.  The facilities should further maintain a “person-centered approach to care,” which includes communicating effectively with residents, resident representatives and/or family and further understanding the individual needs and goals of care for residents.  If a facility experiences an increased number of respiratory illnesses (regardless of suspected etiology), it should immediately contact their local or state health department for further guidance.

State governments closely regulate nursing homes, and many are issuing state specific guidance.  If a state government implements actions that exceed CMS requirements through an executive order, the facility will not be out of compliance with CMS’ requirements.  The memorandum further states that “State and Federal surveyors should not cite facilities for not having certain supplies (e.g., PPE such as gowns, N95 respirators, surgical masks and ABHR) if they are having difficulty obtaining supplies for reasons outside of their control.”  However, CMS still expects “facilities to take actions to mitigate any shortages and show they are taking all appropriate steps to obtain the necessary supply as soon as possible.”

The memorandum provides the following email address for a point of contact: [email protected].

Additional Information:

The FMG Coronavirus Task Team will be conducting a series of webinars on Coronavirus issues on a regular basis. Topics include the CCPA, the CARES Act, Law Enforcement and the viruses’ impact on the Construction Industry. Click here to register.

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients. Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the Coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments. For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER: The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19. The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement. We can only give legal advice to clients. Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG. An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest. As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such. We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**