Authors: Gerontologist Eilon Caspi; Counselor at Law Suzanne Scheller, Scheller Legal Solutions; Public Health Nurse Nancy Haugen; Kristine Sundberg and Jean Peters, Elder Voice Family Advocates
Nearly two-thirds of COVID-19 deaths in Minnesota (3,660 of 5,724 as of January 11, 2021) are of long-term care residents, which is one of the highest rates in the nation.
As the year 2020 drew to a close, Congress considered but ended up not including immunity to long-term-care (LTC) homes from civil liability in its COVID-19 relief bill. While federal immunity did not pass this time, it could be introduced again in the future. In addition, in at least half of the states, LTC homes are shielded to varying degrees from civil liability for COVID-19 claims. As Minnesotans are waiting to see whether the state will grant legal immunity to LTC homes, in effect, extensive COVID-19 liability shields are already in place. This fact, which does not receive adequate attention in the media, is addressed in this blog post.
The cumulative effect of these 25 factors accounts for such broad legal immunity:
- The Minnesota Department of Health (MDH) conducted limited standard inspections and complaint investigations during the majority of the past nine months (for long periods, only infection control surveys and most egregious mistreatment allegations investigations were conducted). Critical evidence was therefore not collected and documented; evidence that could have been used in legal lawsuits against LTC homes has likely been lost forever.
- The Office of Ombudsman for Long-Term Care (OOLTC) of Minnesota did not conduct on-site visits in LTC homes during the majority of the past 9 months; limiting its ability to fulfill its essential duties under the Older Americans Act (such as conducting investigations, collecting evidence related to mistreatment, and referring mistreatment cases to MDH with permission from residents).
- Family members were banned from visiting loved ones during the majority of the past 9 months. These bans limited their ability to know what was happening to their relatives such as whether neglect of healthcare occurred and placed them at risk of harm. Unable to visit, families were limited in their ability to collect evidence of mistreatment.
- Inadequate communications with family members. Banned from visiting, many families did not receive adequate and timely updates from LTC homes regarding the condition of their loved ones. In some LTC homes, families’ calls to nurses about loved ones’ conditions and unmet needs were left unanswered, sometimes for days, sometimes never being returned because of time constraints during COVID-19 or lack of important information reported by staff to Registered Nurses (RN).
- Limited family’s ability to communicate with loved ones using video-based devices. While some providers enabled such communications, others did not adequately facilitate them. This, in turn, limited families’ ability to see their loved ones and become aware of their condition in general and in a timely manner (including identifying and documenting neglect of healthcare and other mistreatments). In addition, many residents in advanced stages of dementia do not have the cognitive ability to use video communication devices with their families.
- Vulnerable and frail residents (many in advanced stages of dementia) were confined to their bedrooms for months (without family visits). The imbalance of power, which existed between staff and physically and cognitively disabled residents prior to COVID-19, exacerbated during the pandemic and perpetrators’ opportunities to mistreatresidents behind closed doors increased.
- While use of personal protective equipment(PPE) is critical at all times, its use also contributed to a situation in which residents’ ability to identify the identity of care staff was often limited (i.e., wearing a face mask, gloves, and gowns limits residents’ ability to know who is caring for them and who may have neglected or abused them). Many residents are visually and/or hearing impaired, which makes their ability to identify the identity of staff wearing PPE more difficult.
- Staffing levels. Low and dangerous staffing levels were found in numerous studies in a large portion of nursing homes prior to COVID-19 (Harrington and colleagues, 2016). Several studies have shown a strong relationship between the number of nursing home staff and quality of care outcomes (Harrington and colleagues, 2020). Due to the pandemic, staffing levels have worsened in many LTC homes, which made it more difficult for nurses to adequately assess, document, and monitor changes in residents’ condition and implement changes in care plans. The low staffing levels also limited the ability of nursing staff to detect, document, and report on neglectful care and other forms of mistreatment; evidence critical in MDH and law enforcement’s investigations and lawsuits. Furthermore, CMS waived nursing homes’ requirement to submit staffing data (through its Payroll-Based Journal System), which eliminated evidence necessary to demonstrate the role of dangerous staffing levels in neglect and preventable COVID-19 deaths.
- The ability of family members to install cameras (hidden or in plain sight) in their loved ones’ apartments was limited due to a new state legislation that is excessively restrictive and the prolonged ban on family visits. Video footage from these cameras represented undeniable evidence in countless MDH and law enforcement’s mistreatment investigations prior to COVID-19.
10. A series of waivers were granted by CMS to nursing homes during COVID-19 period. Examples include waivers in the areas of time requirements for: completion of baseline and comprehensive care plans (only for residents transferred for COVID-19 reasons), provision of clinical records to residents requesting them (potentially contributing to delays in access to nursing documentation), and completion and submission of the Minimum Data Set 3.0 (a large clinical dataset used for care planning across numerous care-related issues) to CMS; all limiting and/or delaying the ability to establish evidence necessary to bring lawsuits against care providers.
11. Police presence in LTC homes was likely reduced during COVID-19 period in general and due to exceptionally diminished trust in law enforcement this year after the murder of George Floyd in Minneapolis on May 25. Such reduced involvement probably limited the scope and quality of mistreatment investigations conducted by law enforcement.
12. The Medical Examiner Office (MEO) investigated only a tiny fraction of suspicious, unusual, and sudden deaths of elders in LTC homes prior to COVID-19 (autopsies are rarely conducted on the bodies of residents). The MEO has been overwhelmed with COVID-19 and other death investigations during the pandemic. The large workload likely contributed to decreased ability to conduct on-site death investigations such as those alleged to occur due to neglect of healthcare.
13. Death certificates. These legal documents have been commonly filled out in inaccurate (e.g. wrong cause of death) and incomplete (e.g. omitting key facts or actual causes of death) ways in LTC homes for decades. With the increased fear of liability during COVID-19, problems – such as those related to filling out the cause of death portion in death certificates– have worsened. “Natural” causes of death (such as pneumonia and heart disease) were likely noted on death certificates in a significant number of negligent infection control and prevention practices as well as deadly neglect during COVID-19 period. When physicians classify that the death was due to a natural cause, Medical Examiners and Coroners rarely investigate the case.
14. Elder Death Review Teams. These teams may examine deaths known or suspected to be related to elder abuse for the purpose of determining whether law enforcement investigation and prosecution of alleged perpetrators is appropriate and supporting these efforts. Despite hundreds of serious bodily injuries and death due to substantiated neglect in nursing homes and assisted living residences in Minnesota in the years prior to COVID-19, Elder Death Review Teams do not exist in the state. In addition, the first Elder Abuse Forensic Center was established in 2003 in Orange County, California. The interdisciplinary team conducts case reviews and evidentiary investigations, tape victim interviews, among other roles. The team works to better identify elder abuse and determine more efficient ways to prosecute abuse cases. While these teams have been replicated in other states, they do not exist in Minnesota, which limits opportunities for professional investigations and prosecutions of elder mistreatment in LTC homes.
15. Emergency Medical Services (EMS). Prior to COVID-19, EMS personnel were frequently called to LTC homes to transport injured residents to the hospital. It was not uncommon for these first responders to detect suspicious injuries and report them to the authorities. During large portions of the pandemic, many EMS teams were overwhelmed with an unprecedented volume of emergency calls and transfers. Being overworked, a portion of mistreatment-related injuries were likely missed during these transfers, never reported to the authorities.
16. Funeral directors have been overwhelmed during the pandemic. Prior to COVID-19, funeral directors were sometimes the first agency to detect suspicious physical injuries on the bodies of LTC residents and report them to MDH and/or law enforcement. Struggling to fulfill their duties during the pandemic, funeral directors may have missed such physical evidence in a significant number of cases.
17. The ability of overwhelmed hospital care professionals to screen, detect, document, and report evidence of mistreatment of LTC residents brought to E.R. or admitted likely decreased during the pandemic. Such evidence was often key in MDH’s mistreatment investigations and lawsuits prior to COVID-19.
18. Backlog of complaints. For several months during the pandemic, MDH had a substantial number of open investigations (“backlog”) of mistreatment complaints. The backlog has recently been largely eliminated in a short period of time without any public transparency into the process; leaving serious questions unanswered regarding whether such elimination was conducted in an adequate way. With many allegations of mistreatment closed, access to critical evidence may have been lost.
19. Delays in MDH’s investigations of mistreatment allegations. Some MDH investigations of allegations of serious and deadly neglect during COVID-19 period were not completed for seven months. Such delays often limit state investigators’ ability to collect evidence necessary to substantiate mistreatment allegations; evidence that could also be used in lawsuits.
20. Underreporting of mistreatment. A report of the Office of Inspector General (2019) found that during pre-COVID-19 period, a large number of incidents of potential abuse and neglect of nursing home residents was not reported to state survey agencies despite federal requirements.
21. Fear of retaliation. With families banned from visiting for months during COVID-19 lockdowns, the problem of residents’ fear of retaliation, may have increased. Many frail residents were afraid to complain about mistreatment when their family was not there to support them, gather evidence, advocate for them, and protect them. Left unexpressed, mistreatment such as neglect of healthcare may remain unknown.
22. Wrongful, involuntary, and risky evictions. The Office of Ombudsman for Long-Term Care of Minnesota reported recently that eviction complaints made to the agency grew nearly 30% compared to the same period during 2019. A portion of wrongful evictions may have gone uncontested (such as due to families’ lack of access to information about the residents’ medical condition during lockdown). The situation exacerbated due to CMS’s waiver to nursing homes related to notice of transfer/discharge that was allowed to be provided “as soon as practicable” instead of before the transfer/discharge. In some situations, wrongful evictions to inappropriate and unsafe settings (such as those that were not well documented) may have increased discharged residents’ exposure to COVID-19.
23. Left in the dark. Throughout the pandemic, MDH did not make basic but critical information about COVID-19 publicly available (e.g., COVID-19 cases and deaths at the LTC home level). This problem represents a major barrier for families’ ability to access reliable, complete, and timely information about the scope and severity of COVID-19 outbreaks at the care home. Without such information, families’ ability to become aware of and document serious health risks and neglect remains limited. Their ability to intervene (advocate for their loved ones’ safety or remove them from the care home – when appropriate, practical, and safe – to protect their health) has been compromised. The lack of access to such information limited families’ ability to file lawsuits and seek justice for their loved ones.
24. Difficulty in bringing legal claims including that if a resident dies of causes unrelated to an injury due to negligence, the claim essentially goes away under Minnesota Law. There is little to no incentive for providers to resolve claims prior to the death of the resident. In addition, general damages like pain and suffering are not available under MN law, limiting the potential damages.
25. Pre-Dispute Arbitration Agreements may limit potential recovery for even the most egregious harms when the LTC home includes such arbitration agreements in admissions paperwork, resulting in the resident foregoing their legal right to a jury trial and requiring arbitration for claims.
