Nursing Homes Face Fines, Lawsuits Unless They Test for COVID-19 — But Access Often Out of Their Hands

Maggie Flynn

As increasing numbers of states recommend so-called “universal testing” for nursing homes and long-term care facilities in the wake of the impact of COVID-19, skilled nursing facilities need to ensure they follow the applicable guidelines — a significant challenge given how varied that guidance could be.

And depending where a SNF is located, testing capacity could be the difference between being in compliance with local laws or facing significant fines or lawsuits.

In the state of New York, Gov. Andrew Cuomo mandated in May that nursing homes test all staffers for COVID-19 twice a week; SNFs in the Empire State could face significant fines and even loss of their licenses if they don’t comply.

Farther west in Illinois, Gov. J.B. Pritzker modified an executive order granting health care providers liability from lawsuits by noting that nursing homes are protected only from civil liability lawsuits, Capitol Fax reported in mid-May. The protections in Illinois now only apply to cases involving the diagnosis, treatment, and transmission of COVID-19 – and are only available to nursing homes that “provide widespread testing” to staff and residents, according to the blog.

But a SNF operator might not have the ability to conduct COVID-19 tests, even if it wants to make testing a priority. And as regulators and lawyers turn their focus toward how nursing homes have handled the crisis, they will be looking at it with the benefit of hindsight.

“Testing capability is riddled with a number of factors that often are out of the hands of the nursing facility,” Constance Endelicato, a partner at the law firm Wood, Smith Henning & Berman who represents health care providers that include SNFs, wrote to Skilled Nursing News in an e-mail on June 3. “The facilities face the daunting task of attempting to abide by the governing recommendations, keeping in mind that with the exception of New York, recommendations will not necessarily define the standard of care under the pandemic crisis. We need to remember that the entire medical community was not prepared for this unknown and eerily unpredictable virus.”

One of the greatest challenges is for SNFs is the lack of a uniform strategy for COVID-19 testing, and the lack of a support system to implement tests, she said. Some of the factors involved include the availability of test kits, the cost and manpower, and the ability of laboratories to process the test kits, Endelicato said.

“Compliance with various recommendations may simply not be possible due to lack of testing, manpower to perform the testing, and specific laboratory processing capabilities,” she said in the email.

The meaning of “universal testing”

West Virginia and Maryland were some of the earliest states to make calls for expanding COVID-19 testing in the nursing home setting, but several others have followed with some kind of call or initiative to mandate more widespread testing in the SNF setting, as NPR reported on May 15.

The mandates and methods, however, vary from state to state, NPR noted. In fact, in May, when the Centers for Medicare & Medicaid Services (CMS) announced federal guidance on how nursing homes might be able to eventually reopen to visitors, the agency recommended COVID-19 testing for all residents and staff before advancing through the three planned phases of reopening, or relaxing any restrictions.

But Christopher Laxton, the executive director of AMDA — The Society for Post-Acute and Long-Term Care Medicine, told SNN on May 20 that the idea of “universal testing” is not as clear-cut as it might sound. The definition could range from testing all residents and staff regardless of symptoms to doing facility-wide testing when a COVID-19 outbreak occurs.

Christy Tosh Crider, the chair of health care litigation at the firm Baker, Donelson, Bearman, Caldwell & Berkowitz, defined universal testing in this way in a June 6 e-mail to SNN: the decision to test every resident and staff person in the facility regardless of circumstances.

Even with that expansive definition, “[u]niversal testing is like fighting a giant with a sling shot and a stone,” she told SNN. The problem is that even with testing, the tools for mitigating outbreaks are limited; testing can help reduce the scope of the outbreak, but it cannot prevent COVID-19 from getting inside a SNF.

“The [facilities are] just a microcosm of their larger communities,” Crider wrote. “The caregivers must get groceries and take care of their children and if COVID-19 hits the community, it will eventually find its way into the nursing home. Testing is not going to change that.”

Researchers from multiple academic institutions have come to the same conclusion, pointing out that racial demographics, location, and facility size all have strong correlations to the likelihood of a COVID-19 outbreak in a nursing home.

Document, document, document

That means operators have to follow all the government mandates for testing, Crider said. Governments are mandating testing because of how few interventions are available — and on top of that, providers need to follow the orders of physicians. SNF providers must promptly inform physicians of changes in condition, and documenting those changes and following physician orders for isolation.

“Once a test is ordered, the documentation on the chain that follows must not be broken: obtaining the physician’s order to test, entering it in the chart, obtaining the swab, getting the result to the lab, following up with labs who are not providing timely results, obtaining the results, getting those reported to the doctor, and following the doctor’s orders in response to the lab results, which when positive will be isolation or hospital transfer,” Crider told SNN. “If that sounds complicated and fraught with the opportunity for a misstep, it’s because it is.”

Endelicato agreed, emphasizing the necessity of documentation of every effort to secure testing. That includes noting any obstacles that impede the ability of SNF operators to comply with any testing recommendations and reporting to the appropriate government agency to both notify them and request assistance, she told SNN.

Endelicato also pointed out that most cases of COVID-19 — and the deaths from the illness — reflect how vulnerable SNF residents are, given their age, the frequency with which they have co-morbidities, and the fact that they live in a congregate setting.

That makes the need for organized support, in the form of tests and personal protective equipment (PPE), all the more urgent.

“The skilled nursing and long-term care industry is in desperate need of state and federal assistance to assist its infrastructure to support the amount of test kits, personnel, and PPE needed to meet the recommendations and properly care for the residents during this tragic pandemic,” Endelicato wrote.

Maggie Flynn

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