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NYSBA Task Force on Nursing Home COVID-19 Deaths

In the United States, COVID-19 has infected over 6 million people and caused almost 190,000 deaths and the totals are rising. A large percentage of the confirmed infections are related to nursing homes, as 41% of all infections are linked to nursing homes. Additionally, COVID-19 related deaths at nursing homes account for 8% of all COVID-19 deaths in the country.[1] In New York State alone, more than 6,600 of the estimated 32,499 COVID-19 deaths have occurred in nursing homes, by far the most of any state. Because of the disproportionate amount of nursing homes deaths, The New York State Bar Association (NYSBA) has launched a task force to investigate.

According to NYSBA’s website, the task force’s primary mission “is to systematically review the statutory and regulatory framework under which nursing homes and long-term care providers operate in New York State. The Task Force shall examine the effects of the COVID-19 crisis on institutional and community-based providers, the individuals they serve, and their families. The Task Force will make recommendations for change including to applicable statutes, policies, and regulations where needed.”[2]

A significant amount of NYSBA’s review will focus on current laws and regulations to determine if significant changes need to be made. Proactivity is the strategy here, with the caveat of a possible second wave of the virus occurring later this year or early 2021. The creation of the task force comes amid reports that the U.S. Justice Department is seeking data from the states about directives that may have resulted in the deaths of elderly nursing home residents, including those in New York. The analysis of this data could lead to substantial new federal legislation.

Much of the controversy in New York State regarding the strategy to curtail COVID-19 has centered on the decisions made by Governor Andrew Cuomo, primarily his March 25th directive[3] that required nursing homes to accept residents back from hospitals for readmission even if they tested positive for COVID-19. Many groups, including lawmakers and the families of nursing home residents, have asserted that this directive accelerated the spread of the virus. However, a recent New York State Department of Health report found the primary cause of the virus’s spread was from staff working at the homes and bringing the virus into facilities. A significant portion of that contact occurred at a time when the spread of coronavirus in New York was unknown.

Whether or not the task force will specifically evaluate and comment on the decisions that Governor Cuomo made related to COVID-19 and nursing homes remains to be seen. Ultimately, the task force will arrange meetings with health care providers, advocacy groups and others to seek out recommendations for the April 2021 NYSBA House of Delegates meeting, where its findings will be reported.

As the pandemic continues, it is reasonably expected that other states will create similar groups to investigate how its local and state government’s statutes, policies, and regulations have addressed the issues related to COVID-19. Regardless of whether this occurs or not, leadership groups must be flexible and open to working with other groups to find the most effective strategy to curtail the spread of COVID-19.

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This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2020 Law Offices of Pullano & Farrow PLLC

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