COVID-19

Say No to Blanket Immunity

May 14, 2020 | by Law Offices of Ben Yeroushalmi

As Governor Gavin Newsom announced on May 4, 2020, California began to ease some of the restrictions in place starting Friday, May 8, 2020, introducing the state to the beginning of Phase 2 of California’s four-stage reopening plan. Reopening without the proper protective bulwarks can have dire ramifications. One crucial pillar of protection is the ability to file a law suit against industries who acted irresponsibly during the pandemic. Unfortunately, healthcare and insurance parties are lobbying against this, asking the Governor for blanket civil and criminal immunity for all healthcare providers, including nursing homes. On April 9, 2020, these groups asked to be pardoned from civil or even criminal liability for “any injury, death, or loss alleged to have resulted from any act, omission, or decision made related to providing or arranging services, including but not limited to acts, omission, or decisions undertaken because of lack of resources, absent proof by no less than clear and convincing evidence of willful misconduct as measured by a standard of care that incorporates all of the circumstances of the emergency.”

The Law Offices of Ben Yeroushalmi vehemently oppose this proposed executive order. Nursing homes with existing histories of understaffing and substandard care may use the pandemic and the blanket immunity as a free pass to continue operating under unsafe conditions, risking both their staff and elderly residents. We acknowledge and extend our gratitude to our frontline workers, doctors, nurses, nursing assistants, and those working behind the scenes to fight the spread of the coronavirus. And we stress that this is directed to the for-profit organizations, corporations, and the leaders who run these large chain businesses.

Blanket immunity creates leeway for large nursing home chains to get away with neglect and abuse toward their residents, elders who are often completely dependent on the their care, in a time when they are the most vulnerable. Nursing homes have been hard hit by the virus. Those which were already understaffed, undertrained, and unprepared for infections, face the exacerbated effects of the virus, as low-paid and undertrained staff struggle to control the outbreaks. Yet it is not to the fault of these rank-and-file workers these facilities are not adequately staffed or prepared for COVID-19. Those who made the decisions to understaff their facilities unfortunately often did so before the pandemic, making them chillingly unprepared during the pandemic. At this time, these chains must equip their facilities with more staff and infection control training. Our elderly should still be cared for humanely, and the employees should be allowed to work in safe conditions. Removing the option of litigation means removing the consequential incentive to be held accountable for neglect and abuse that happens during the pandemic. It means depriving victims their civil right to have a judge and a jury of peers hear their case, to regain a degree of redress.

The Importance of Infection Control During the COVID-19 Pandemic

April 14, 2020 | by Law Offices of Ben Yeroushalmi

Life Care Center of Kirkland in Washington, the first long-term care facility in the United States with a wide-scale coronavirus outbreak, was recently charged with a $600,000 fine for deficiencies that enabled the virus’ spread. Additionally, due to the slew of deficiencies, they are at risk of losing their Medicare and Medicaid funding. Life Care Center—and its lack of infection control—is not the only facility of its kind. Facilities across the United States are at high risk of exposing one of the most vulnerable populations, the elderly and those who need 24/7 medical attention, to an onslaught of infections from COVID-19. At this critical juncture, where the actions of staff and infection procedures mean life or death for many, facilities and staff must respond swiftly with a stringent infection control plan.

Even with the best efforts in place, most long term care facilities are ill-prepared to admit and care for COVID-19 positive patients. Because nursing home and assisted living facility residents, due to their age, compromised immune systems and underlying health conditions, are already at risk of respiratory diseases such as influenza and pneumonia, they are particularly at risk of COVID-19 infection and possible death. Since facilities should already have infection prevention plans and strategies in place for existing infectious diseases, and because these strategies overlap with those recommended for COVID-19, these facilities should theoretically have been prepared to respond accordingly.

In addition to existing infection control plans, the CDC provided guidelines to draft and implement a COVID-19 Preparedness Checklist for skilled nursing homes and other long-term care facilities. Some recommended strategies are to monitor and restrict visitors, test and identify active cases, isolate any active cases, and handle, store, process, and treat all patients and their belongings with the appropriate protective gear. Yet, regardless of existing plans, if not properly implemented, the likelihood of community spread of the virus remains too high to risk. Existing understaffing combined with the lack of preparation means staff, who are already spread thin, lack the time and resources for proper infection control, often leading to dire consequences. In fact, of the 320 fatalities in Los Angeles, 29% of them were found to be residents of nursing homes. And according to the LA Times, 89% of the long-term facilities with COVID—19 had already been cited for infection control violations in the past.

The CDPH Mandate Requiring Admission of COVID-19 Positive Patients into Nursing Homes

April 3, 2020 | by Law Offices of Ben Yeroushalmi

The novel coronavirus, COVID-19, has left unprecedented marks on society, triggering stay-at-home orders, shelter-in-place orders, ceasing all in-office activities for non-essential businesses, implementing social distancing measures, to mention a few. The airborne respiratory disease is highly contagious and unfortunately, fatal to a percentage of its victims. And as novel as it is, from the limited research we have thus far, one thing is clear: The most vulnerable, with the highest risk of fatalities, are those 65 years and older, those with underlying health conditions, and those residing in long term care facilities. The unfortunate truth for those who live in skilled nursing facilities is that often times, they check off on all of these traits. Skilled nursing facilities are for seniors or dependent adults who have more complex medical conditions and need all-around, 24/7 skilled nursing care.

Despite clear knowledge that the elderly, residents in skilled nursing facilities, those with compromised immune systems and underlying medical conditions are disproportionately endangered by COVID-19, on March 30, 2020, the California Department of Public Health (CDPH) released an absurd All Facilities Letter (AFL) mandating the admission of COVID-19 positive patients into skilled nursing facilities.

This AFL follows a series of AFLs warning facilities of what is to come, of the potential of an influx of COVID-19 cases, and of the necessary procedures and precautions facilities should implement to protect its residents. One of these AFLs, dated March 20, 2020 states all skilled nursing facilities in California must take precautionary measures to protect their elderly residents from COVID-19 by preventing the initial introduction of the virus in their facility. What is counterintuitive, contradictory, and outrageous of the mandated admission of confirmed COVID-19 patients, then, is this: they claim to want to protect those most at risk of COVID-19 then proceed by implementing the opposite. This CDPH directive directly and carelessly puts the most vulnerable populations in the frontlines of infection and potential death. The existing examples of nursing home COVID-19 outbreaks demonstrate the grim truth: most nursing homes are egregiously unprepared for infection control, let alone readily equipped to handle a wave of COVID-19 positive admissions.