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

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.

Already, CDC research shows that from the total number of COVID-19 related  fatalities, 80 percent were among adults 65 years and older. The grievous consequences of this directive will result in more deaths and higher infection rates not only among residents but also the untrained, unprepared staff and their loved ones.

Moreover, it follows that if the admission of COVID-19 patients into skilled nursing facilities cannot be denied, that these facilities should be made to develop and implement a more stringent standard of regulations in order to prevent further infection. Instead, the AFL again does the opposite by temporarily suspending some regulations, including the staffing requirement. The order lowered the required minimum staffing of direct care services hours of 3.5 per patient day to 2.4 hours per patient. Already nursing facilities are understaffed, resulting in neglect and elder abuse; instead of lowering the staffing hours required, staffing hour and the number of staff should have been increased. In addition, with stricter visitation regulations, ombudsmen and inspectors, are severely limited in keeping nursing homes accountable to safety regulations and adequate standards of care. This will inevitably result in further violations of residents’ rights and possibly allow the gross mishandling of infection control to be swept under the rug.

Instead of looking for alternative locations such as stadiums, hotels, or convention centers for COVID-19 positive patients, the CDPH and governor knowingly chose skilled nursing facilities, risking the lives of the most vulnerable populations. We at the Law Offices of Ben Yeroushalmi vehemently oppose this inhumane move. We believe the elderly and the vulnerable deserve real protection, not hollow words claiming protection. We want to fight for you and your loved ones.

If you believe you or a loved one is a victim of elder abuse, please do not hesitate to call us at: (310)623-1926 or (888)606-3453.