No area of the United States, or perhaps even in the world, has been hit as hard as New York was by the coronavirus crisis. New York City was hit far harder than even Wuhan, China, where the pandemic originated. New York’s nursing homes, unfortunately, were the hardest hit of all.
If the allegations leveled by critics are true, Álbany’s response to this crisis was abysmal. Even if the allegations are not true, their response was at best uninformed and ineffective. New York´s new nursing home legislation represents an attempt to apply some of the lessons learned during the COVID-19 debacle, so the same thing will never happen again.
March 2020 was the month that the coronavirus panic finally hit, in the United States as well as most of the rest of the world. On March 25, in response to fears that hospitals would be overwhelmed by COVID-19 patients, New York directed nursing homes to take thousands of coronavirus patients, then housed in hospitals, into their long-term care facilities scattered throughout the state.
Critics assert that this policy only accelerated outbreaks by spreading them through crowded nursing homes, where staff was less qualified to deal with the outbreak than those in hospitals. On May 10, Governor Cuomo reversed the directive by barring nursing homes from accepting COVID-19 patients without a negative COVID-19 test.
Fudging the Numbers
Only in 2021 was the true number of nursing home transfers released. It turns out that initial reports underestimated the number of transferees, actually 9,056, by about 30%. Unsurprisingly, it has also come out that the state government also underreported nursing home COVID-19 deaths by about 50%—12,743 vs. initial reports of 8,505.
The discrepancy in the reporting of deaths occurred because in April 2020, New York revised the way it counted nursing home deaths. If, for example a nursing home resident became ill at the nursing home but was transferred to a hospital before the date of death, the death was counted as a “hospital death” rather than a “nursing home death.”
Whispers of a Coverup, Threats of Retribution
Critics allege that the true purpose of the reclassification of COVID-19 deaths was to conceal the real number of COVID-19 deaths in New York. In any case, this state of affairs is bound to trigger allegations of a coverup in the context of the horrific death toll exacted by the COVID-19 pandemic in New York nursing homes—especially when it is being peddled by those who would otherwise be held responsible for any excess deaths.
Observers, especially among private advocacy groups, were stunned by the state’s lack of transparency—and by its arrogance. Democratic Assemblyman Ron Kim, a vocal critic of Cuomo’s handling of this issue, said that Cuomo called him at home and threatened to “destroy” him politically for his criticism of the state’s handling of the matter.
New York’s Immunity Legislation
The scandal gets even uglier. When New York insisted on the transfer of thousands of hospital patients to nursing homes, it offered nursing homes something in return. Buried deep within New York´s massive 2020 budget document was obscure legal language that gave nursing home executives, trustees, and board members blanket immunity from liability for their treatment of COVID-19 patients.
The legislation does not bar all lawsuits arising out of COVID-19 related deaths in New York nursing homes. It does, however, grant both civil and criminal immunity to healthcare facilities and healthcare professionals for any damages arising from misconduct that occurs during arranging for or providing health care services, if all of the following are true:
- The provision of such healthcare services complied with the law or with a COVID-19 emergency order;
- The “act or omission” (read: misconduct) was related to the provision of health care services;
- The patient’s treatment was affected by the COVID-19 pandemic; and
- The healthcare providers were acting in good faith.
The law does not prevent medical malpractice lawsuits based on gross negligence, recklessness, or criminal misconduct.
A Summary of the Complaints That New York’s New Nursing Home Legislation Purports to Remedy
In addition to the foregoing “nursingate” scandal, critics have long alleged the existence of the following industry-wide shortcomings in New York´s nursing homes:
- Some nursing homes have been skimping on patient care and staff expenditures to reap windfall profits at the expense of patient health and quality of life;
- Some nursing homes have been disguising profits by engaging in “sweetheart deals” with related parties, selling goods and services at rates far above fair market value to “launder” windfall profits as legitimate expenses; and
- Managers and executives were grossly overpaid at patient expense, including people who were not even directly involved in patient care.
Critics have expressed concern regarding the difficulty of holding nursing homes accountable for this type of conduct.
The New Legislation
On February 19, 2021, Governor Cuomo announced comprehensive new nursing home legislation designed to increase the transparency of nursing home operations, hold nursing home operators liable for their misconduct, and ensure that the principle of “people over profits” is respected.
The new legislation seeks to increase the transparency of nursing home operations by requiring nursing homes to publish the following information on a public website:
- Rates (from all payers), which must be updated every year;
- The identities of all owners; and
- A list of all contracts for the provision of goods or services that use any Medicaid or Medicare funds within 30 days of the date of the contract.
Additionally, an application to establish a new nursing home must include certain information about the staff members.
The new legislation seeks to hold nursing home operators accountable for misconduct by:
- Increasing civil penalties to $25,000 for violations of the Public Health Law:
- Allowing the immediate imposition of penalties against nursing homes and other adult care facilities by removing the 30-day grace period: and
- Expanding existing requirements for nursing homes with repeat infection problems to work with a quality improvement organization or quality monitor, at the nursing home’s own expense, to resolve any deficiencies.
The legislation also streamlines the process of appointing a receiver when necessary.
“People Over Profits”
The new legislation encourages nursing homes to prioritize patient care over windfall profits by:
- Requiring nursing homes to spend at least 70% of their revenue on direct patient care;
- Requiring nursing homes to spend at least 40% of their revenue on resident staffing;
- Capping the maximum profits of nursing homes;
- Banning certain types of transactions designed to disguise windfall profits, such as “sweetheart deals” between related parties and the payment of “compensation” to “employees” who are not actually providing meaningful services to the nursing home; and
- Setting a salary cap for nursing home managers and executives.
It is hoped that this new legislation will be an important step toward nursing home reform.
Wrongful Death in New York State
If you suspect that your loved one died as a result of misconduct by a New York nursing home, the first step will be to find out whether your complaint is covered by New York’s immunity legislation. If not, we will need to conduct an investigation to determine whether it is likely that your suspicions are accurate and can be proven with admissible evidence. If so, it will be time to assert a wrongful death claim against the defendant (probably the nursing home itself).
When someone is injured through the misconduct of another, the victim may file a personal injury claim against the defendant. A victim who dies, however, can neither file nor maintain a personal injury claim. Instead, New York wrongful death law allows the personal representative of the victim’s probate estate to file a wrongful death lawsuit on behalf of the beneficiaries of the victim’s probate estate.
The personal representative is appointed by the New York Surrogate’s Court in the deceased victim’s county of residence. The personal representative is usually the victim’s close relative (typically the spouse). Any damages will be given to the personal representative in trust to distribute to estate beneficiaries.
Damages for wrongful death can include compensation for losses such as:
- Funeral and burial expenses (typically recovered directly by the estate itself rather than beneficiaries, since the estate normally pays these expenses in the first place);
- Medical expenses for the victim;
- The amount of any lost inheritance suffered by surviving children;
- Compensation for any pain and suffering endured by the victim prior to death (if it is related to the condition that caused the death);
- Any earnings lost by the victim, the value of any support and services provided by the victim, and the value of any parenting services provided by the victim, all of which are usually irrelevant with respect to a retired nursing home resident; and
- Nine percent interest from the date of death.
Surviving family members cannot recover for their own damages (grief, etc.). Keep in mind that a New York wrongful death claim must normally be filed within two years of the date of the victim’s death.
The Clock is Ticking—Take Action Immediately
If your loved one died in a New York nursing home, their death may have been unnecessary, and the estate’s personal representative could be in a position to file a wrongful death lawsuit. Likewise, if your loved one suffered abuse or neglect that did not result in death, someone can be appointed to file a nursing home negligence and abuse claim on behalf of your loved one (even if your loved one is mentally incompetent).
Don’t wait until your suspicions become certainty, because the statute of limitations deadline might have already passed by that time. Give our experienced lawyers at E. Stewert Jones Hacker Murphy a call now.