ANALYSIS

Senior Care in the Time of COVID-19

COVID-19’s impact on senior living companies and facilities cannot be overstated. The virus’s propensity for community transmission was not fully appreciated when many senior care facilities started experiencing their first cases of COVID-19. With this new medical challenge comes new litigation challenges most senior living facilities may not have seen before, driven by formal or informal investigations. It will be critical for companies to seek appropriate counsel at the outset as investigations are undertaken.

It’s no surprise COVID-19 is putting an increased litigation spotlight on patient care. But unlike individual resident cases, the new wave of litigation in the time of COVID-19 likely will be more complex and multifaceted, consisting of attorney general and other government actions and mass filings by multiple residents against one or more related facilities. In addition, infected and uninfected residents may pursue class actions related to their care during the pandemic.

Given the outsized impact COVID-19 can have on senior care facilities and their employees, early risk assessment is key. In addition to preparation for probable litigation, working closely with counsel can help facilities keep abreast of legal developments, coordinate internal and external responses to COVID-19 challenges, and cultivate the “real-time” company story as it—and the science—develop.

Traditional class actions against senior living facilities often allege failures to satisfy applicable state and federal regulatory requirements, breach of contract, and violation of residents’ rights and state consumer fraud statutes. For example, claimants allege that when the hours reported for nurses and CNAs are compared to the hours required to sufficiently address the needs of a facility’s residents, it is mathematically impossible to meet those needs. The residents allege they, as a group, were not timely or properly toileted, bathed, dressed, fed, repositioned or exercised, thereby depriving them of their dignity and the care paid for and promised.

Actions by state attorneys general claiming Medicare/Medicaid fraud and consumer fraud also threaten senior living facilities. Like class actions, these claims may include failure to provide adequate staffing to meet residents’ needs and deceptive trade practices. Defending matters brought by attorneys general—who have expansive powers and formidable financial wherewithal—or involving company whistleblowers requires a specialized set of skills and approaches.

The language of the Resident Agreements often plays into the defense of proposed class actions and individual cases, including seeking the enforcement of provisions requiring individual arbitrations instead of class proceedings.

How have things changed with COVID-19?

Similar actions premised on quality of care are being filed in the midst of the COVID-19 pandemic, but these actions are being expanded to include:

• Failure to plan and train adequately for infectious disease epidemics;
• Failure to control the spread of infection/disease;
• Failure to provide enough and appropriate personal protective equipment;
• Failure to adequately test for COVID-19; and
• Failure to monitor staff, new admissions and visitors for signs of disease.

Even facilities that have not faced outbreaks or deaths may face potential challenges, including questions such as:

• Were policies and procedures in place to address the spread of disease in the facility?
• If such policies were in place, was staff adequately trained and did they execute as trained?
• Were residents timely tested for COVID-19 once testing became available?
• Were facilities providing for the emotional well-being of their residents during isolation?
• Were facilities using sufficient staffing to provide residents needed and promised care?

Both sick and healthy patients alike may allege they fear for their own well-being as other residents fall ill and perish. Now that testing is more readily available in many states, healthy residents may also allege that the facilities failed to test patients quickly enough to prevent an outbreak of COVID-19.

The cases filed to date have been brought on behalf of individual residents, but some plaintiffs’ lawyers may soon shift from bringing individual cases to bringing class actions to increase liability exposure and exert pressure to settle aggregated claims.

What can be done to reduce risk?

These uncertain times call for a more calculated and careful approach to mitigate the risk of litigation. Measures such as those listed below are likely already in place, but additional approaches may be needed in light of the heightened focus on senior living facilities in this pandemic.

• Focus on infection control and documentation of your efforts, including provision of necessary supplies and protective gear to residents and employees. Follow CDC and CMS guidelines.
• Implement appropriate guidelines for social distancing while striving to allow appropriate social interaction to decrease feelings of isolation (e.g., get creative and find ways for residents to connect with family via technology).
• Work together as a team to appropriately balance significant resident safety considerations with the least restrictive means of providing that safety.
• Monitor the health—physical and mental—of employees as well as residents.
• Develop plans for return-to-work scenarios for employees who experience symptoms consistent with COVID-19 or who test positive for COVID-19.
• As difficult as it is, plan for staffing shortages. With stay-at-home orders, sick employees, fear and family issues requiring employees’ attention, more resources may be needed to meet the needs of residents. Have a back-up plan—if not two or three!
• As testing becomes available, consider how to implement testing in the facility, including testing within the existing community and for new employees and residents who join the communities.
• Maintain required documentation of care. This includes listening, responding to and documenting responses to resident and employee complaints. Even with increasing demands, it will be critical to substantiate the care provided in the event of litigation or an investigation.
• Stay informed of any changing local, state and federal regulations that implicate duty of care or alter documentation requirements. As the focus on senior care increases, there likely will be additional requirements for these communities that may vary across states.
• For new admissions using arbitration agreements, confirm they are signed by persons with authority (i.e., the new resident, the guardian or someone with power of attorney).
• If a facility has had a confirmed case of the virus, with or without a death, litigation is likely. Facilities without a COVID-19 diagnosis should not assume they will never have one. Documenting the steps a company took to keep residents safe and healthy will only become more difficult with the passage of time—do not wait until a lawsuit is filed to develop and embrace the facility’s position.
• If faced with litigation, make sure facilities coordinate with in-house counsel or outside counsel before responding to media requests.