Can legal action be taken for COVID-19 reporting in Maine nursing homes?

About 1.3 million Americans live in nursing homes, according to the Centers for Disease Control and Prevention (CDC), and more than half are over the age of 75. There are 6,849 beds available in Medicare and/or Medicaid-certified nursing facilities in Maine where this vulnerable population resides.

Inform resident’s representative.

As part of the Residential Rights under the Federal Nursing Home Reform Act (NHRA) of 1987 – a resident of a long-term skilled facility must have a representative notified when:

a resident is involved in an accident and sustains injury,
a resident’s physical, mental, or psychosocial status changes,
a resident has a life threatening condition,
a resident has medical complications,
resident’s treatment must change significantly,
the facility wants to transfer or discharge resident from present home.

Just last week the Centers for Medicare and Medicaid ordered reporting of cases for tracking and data purposes, but representatives should have been notified at the outset of COVID-19-related sickness under the residential rights of the Nursing Home Reform Act of 1987, especially as relates to changes listed for reasonable notification to families and representatives.

Standard of Care Regulations.

If a nursing home accepts Medicare, the nursing home must follow Federal Regulations which set forth the standard of care. One of these regulations is 42 CFR sec. 483.25 (h) which provides the facility ensure a resident’s environment remains as free of hazards as possible and adequate supervision is provided, along with a provision of providing adequate medical treatment inline with the current medical standard of care. When sub-standard care results in harm to a resident, possible legal action may be taken against a nursing home and/or the treating medical professional. Nursing home abuse claims include acts of negligence that cause, or exacerbate existing health conditions or place residents in danger and deviations from NHRA could place a resident at risk and may be considered acts of unintentional negligence.

Proving Liability.

Circumstances surrounding a negative event in a resident’s care are not always clear to someone who was not directly involved. A legal professional who specializes in nursing home laws may be able to assist in piecing information together to determine legal action. The COVID-19 pandemic has put healthcare workers in situations where legal action may be initiated, but states may become involved regarding immunity since dangers of COVID-19 were not immediately foreseeable.

Wrongful death.

If a person died of COVID-19 complications at a residential care facility because they were not isolated from sick individuals once staff was aware of the dangers, a degree of responsibility may fall onto the facility. Wrongful death legal actions address the death of a person resulting from an injury inflicted by the negligence or wrongful act of another. An experienced attorney can help navigate the way the laws will be interpreted for families suffering the loss of a loved one due to COVID-19 treatment and reporting in Maine nursing homes.

Sources.

Nursing Home Reform Act (NHRA) of 1987