In April 2020, Governor Brian Kemp issued an Executive Order protecting nursing homes and nursing home staff from claims of negligence during the Covid-19 state of emergency. What does this mean Covid-19 and Georgia nursing home liability?
What were the infection control protocols for nursing homes before and after Covid-19? In this week’s episode, we unpack the right of those who have been injured or killed in Georgia nursing homes during the pandemic.
Hello out there. Welcome back to the podcast. My name is Rob. I’m going to be your host for this particular episode. A lot of important, topical, relevant information in this episode. We’re going to be talking about the laws surrounding infection control in nursing homes both before and after the COVID-19 outbreak as well as recent changes in Georgia law with regard to Covid-19 and Georgia nursing home liability. So a lot of really interesting things coming up.
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Anyway, onto the actual substance of this episode – so the main thing that we want to get to right out of the gate is who or what entities, what agencies regulate nursing homes in the state of Georgia – what set of regulations, what set of laws govern how a nursing home must operate, because there are some – there are a bunch.
So the answer essentially is two-fold. There are a series, a litany of federal regulations, of federal laws that were passed in the previous 40 years starting in 1987, the Nursing Home Reform Act. So that legislation and then the amendments that are there too have worked to create the guidelines by which nursing homes must operate, and that deals with everything from how you train a nurse aide with what a therapeutic diet means with the ratio of staff to residents. So these guidelines, the federal guidelines, come within the gambit or are enforced at the federal level, these federal laws that are the guidelines for most every way in which a nursing home can be run, are enforced at the federal level by the Centers for Medicare and Medicaid Services, which itself is a part of the Department of Health and Human Services. That’s the federal level. So you have this grandiose scheme of laws, of regulatory laws governing nursing homes in the state of Georgia that are enforced by the Centers for Medicare and Medicaid Services.
Then you have a whole host of other regulations and laws governing nursing homes in the state of Georgia and the state entity that is in charge of regulating nursing homes in Georgia is the Department of Community Health. And the reason why I’m even starting at that point at such a broad level is to say that there were infection control laws and there were agencies designed and put in place to enforce those laws as they relate to infection control, as they relate to respiratory illnesses and viruses just like COVID-19. So this isn’t like we’re in some new territory with how we oversee nursing homes and how we regulate nursing homes with the prevention of infectious diseases. We’re not new territory. We already federal, many federal and many state laws and agencies designed to enforce those laws about infection control. But what are they? What were and what continue to be the infection control laws governing nursing homes?
Let’s start at that federal level. Let’s start with those federal guidelines. And you’ll find these in the Code of Federal Regulations – it’s 4 – it’s off the top of my head, this is how much I have to read this stuff, but it’s at 42-CFR-483 et. al. for all the lawyers out there listening. I’m actually not even sure how many lawyers listen to this show. I feel like a lot of our audience is people who have loved ones in nursing homes and the rest if probably ombudsmen I think from my anecdotal, unscientific research. But for the lawyers out there that are interested in that, that’s where you’ll find these.
So with regard to infection control, it has its own basically sub-chapter, sub-paragraph section in the Code of Federal Regulations, so the guidelines, the rules are as follows. Number one is every nursing home has a duty to regularly observe for and surveil the signs of communicable diseases and infections before they can spread. And so for example, that means training staff on what the symptoms of the flu look like versus Ebola and things like that, so that way you have a functioning, qualified staff to identify diseases and illnesses early on and have a policy and procedure in place, meaning these are the rules you have to follow in terms of if you do see a symptom, this is what you’re supposed to do. So the federal rules require regular observation in some sort of capacity.
The second rule that’s required, the second obligation in the federal rules is a system of reporting. So facilities should have a standard method of when and to whom possible instances of communicable diseases and infections should be reported. So for example, if a nurse aide or an independent contractor of a nursing home sees the signs of COVID-19 or any other type of illness, what’s the chain of command that should follow? Do they do an incident report? Do they type something in the chart and then does the RN on duty, the charge nurse do something? And then so on and so forth. The nursing should have some type of system, some policy and procedure in place for reporting that, especially in the time of COVID-19, but again, these were regulations before we had a pandemic.
Quarantine plan – that’s another obligation set forth in the federal rules. Now the isolation plans that are required by nursing homes are going to depend on the type of infectious agent or organism involved, and isolation may be anything from moving an infected resident to another room, to quarantining an individual in some other portion of the facility. So there needs to be some type of quarantine game plan under the current manifestation of the federal rules.
And then the next obligation, of course, having some type of hand hygiene protocol. This is nursing school 101, elementary school 101. I remember teaching my nieces and nephews this when they were 4 years old. But every nursing home is required to have some type of policy and procedure in place of when a staff member is supposed to wash their hands. When is it appropriate and when is a staff member supposed to wash their hands? Is it before they touch a resident? After they touch a resident? Is it when they’re handling soiled linens or clothing? These types of things, you don’t leave it up to the subjective whims of a staff memhttps://www.schenksmith.com/podcast/preventing-uti-georgia-nursing-homes-ep87ber. You want to have rules and regulations in place at that nursing home about when you’re supposed to wash your hands, keep clean, when you’re supposed to use hand sanitizer. So hand hygiene is very important and it’s required under the federal regulations.
And that’s going to be the same thing with regard to personal protective equipment. So the nursing home must have a policy and procedure of when gloves are to worn, when masks are to be used, so you don’t leave it to the whim of the staff member of when they will or will not use gloves or masks. And it must be followed and of course, that goes without saying that the nursing home, under these federal regulations, must have enough PPE on hand to take care of sick patients or sick residents and protect the staff.
So this was the existing obligations that nursing homes have with regard to infection control. This isn’t something new. This is not something that has crept up on them and no one could have seen. Infections happen all the time in nursing homes, infections from pneumonia, from UTIs resulting in sepsis. These types of things are not new to nursing homes. That’s why these federal regulations are there and that’s why they’re so thought out and so explicit, that these are things that are going to happen in a nursing home, and so you need to do what you can to prevent them.
So the question now is, okay, that’s fantastic – what’s different now with regard to COVID-19? What are the COVID-19 laws with regard to not just infections, which we’ve been talking about, but COVID-19 itself? Well in order to protect residents, the Centers for Medicare and Medicaid Services issued starting in I believe the second week of March, I think March 13 might have been one of the first memos issued by the CMS was on March 13 or 14 – I can’t remember as I it here right now. But they issued basically new regulations or new parameters surrounding their enforcement of the regulations, but the major issues, the major new changes to the law, at least temporary-wise, are the fact that no one is being permitted into nursing homes other than essential healthcare workers. So CMS has basically said unless you work there, unless you are somebody that is providing some type of end of life care, so either a bereavement specialist or I believe clergy in my anecdotal experience are being let in, and to a much lesser degree state surveyors. And even then, the state surveyors are being let in only if it’s some type of immediate jeopardy.
So essentially the first law that has changed is no one is going into these places – no family members, no ombudsmen, in many cases no ombudsmen, like no deliveries. If you’re delivering food or PPE to these places, you’re not going inside. You’re being met outside by healthcare workers. And obviously the reason this is so is because you want to limit the amount of people entering this place and potentially getting residents infected. But that’s the first major change in infection control laws and again, that’s not going to be something that’s permanent. It’s a temporary change due to COVID-19.
The second thing that has changed regulation-wise is that nursing homes are no longer allowed to have any type of group activities, so no communal dining, no bingo nights, no group recreation, no we’re going to go out into the quad, wheel everybody out and have story time, nothing like that. It’s essentially residents are being isolated within their own rooms essentially. That’s the next thing – you’re not allowed as a nursing home to have residents grouped together to the greatest extent possible.
The other major thing that has changed now is, like I said before, previously, the nursing home had a duty to look out for signs of infection. Now the law has changed such that there is essentially an affirmative duty to screen every resident every shift for signs and symptoms of respiratory distress and fever, essentially some of the signs of COVID-19. So every shift, the nursing home staff has to go and do the rounds of everybody. And essentially if someone is showing positive signs, they’re testing, then the Department of Community Health is notified.
The next thing is also active screening of staff. So the staff themselves, every shift, have to take their own temperature, how to monitor themselves for signs and symptoms of COVID-19. And of course, if they show positive signs, they got to go. Unfortunately, we’re getting calls every day where X employees are saying they were forced to go in even though they had fevers and at that time were not tested but were showing the signs, but the nursing home was saying. “I don’t care. Come in,” which is not good, obviously against the regulations here. And again, the regulations require the nursing homes to place prominently infection control and infection warnings all across the site, signs like, “Wash your hands,” “Use hand sanitizer,” that type of thing.
And then finally, CMS is requiring everybody, all nursing homes, you have to remain informed. You have to keep up to date because the regulations can change just like that. So it’s important to keep abreast of the newest CMS, CDC guidelines.
So those are the infection control laws as we have them during the pandemic. The issue now is, well, first of all, how do we know? Are nursing homes being inspected? As I mentioned, state surveyors are only being admitted into these facilities if there has been some type of complaint that is of immediate jeopardy. So immediate jeopardy can mean anything from sexual abuse, rape, physical assault, catastrophic, systematic failures like if an air conditioner goes out, it’s 100 degrees – these are immediate jeopardy situations in which a surveyor can during the COVID-19 pandemic go in and conduct a survey, conduct an investigation. Anything less than that and the surveyors are not being permitted into the nursing homes. So I guess it’s yes and no. Are nursing homes being inspected right now? In terms of typical inspections like annual inspections or complaint inspections for anything below immediate jeopardy? No, nursing homes are not being inspected.
In fact, CMS even has made it a non-citable offense, a non-violation of the law if nursing homes, for reasons beyond their control, don’t have enough PPE. So not only are nursing homes not being inspected at the level that they would normally be inspected but they’re not liable in terms of citations for things that they would have been before. So it’s creating, as you can imagine, a very hairy situation, a very scary and strange situation when there are no visitors, there’s no oversight in terms of family member oversight and there’s no oversight with regard to surveyors and ombudsmen. So definitely a scary situation.
Now the $64,000 question – if my loved one is hurt in some way, not just COVID-19, but if my loved one is a nursing home resident in Georgia and they’re hurt in some way, whether it’s a pressure ulcer, a fall, asphyxiation from a bedrail, COVID-19, the flu, UTI, whatever the case may be, I wasn’t able to get in there to see them, but it happened, they’ve been injured, I’ve been notified that my loved one has been injured in this nursing home during the pandemic, is the nursing home liable? Can I sue the nursing home? Covid-19 and Georgia nursing home liability, how is it possible to hold a facility accountable now?
The answer to that question is it’s going to depend. The reason why it’s going to depend and the reason why the answer to that question is more difficult than it was even a month ago, eight weeks ago, is because of a proclamation, an executive order, by Governor Kemp, our governor of Georgia. And let me explain that. So on March 14, Governor Kemp in the state of Georgia issued an executive order basically saying that we as Georgians are in a state of emergency. Fine. Fair enough. On April 8, he renewed the state of emergency through May 13. Fine. One April 30, he again renewed the state of emergency through June 12. On April 14 of 2020, Governor Kemp issued another executive order, not just talking about the state of emergency, but with this particular executive order, he basically proclaimed that all nursing home staff, anybody providing healthcare in a nursing home would be considered conducting emergency healthcare like it was a natural disaster. The actual executive order says that employees, staff and contractors of healthcare institutions and medical facilities shall be considered auxiliary emergency management workers pursuant to OCGA 38-3-35. This provision shall apply only to employees, staff and contractors of healthcare institutions, blah, blah, blah, yada, yada, yada.
What is the implication of saying that nursing home staff and the nurses, the CNAs, the LPNs in nursing homes, are auxiliary emergency workers? Well what that means is that for the entire duration that they are considered auxiliary emergency workers, for the entire time of this pandemic until the state of emergency is over, for a healthcare worker, for a nursing home worker, for a CNA, an LPN, a nurse at a nursing home, to be liable for any claim of professional malpractice, that is any injury resulting from their conduct, the standard is gross negligence or higher.
Now what does that mean? I’m not trying to lawyer-talk over here, but ordinarily, if someone like a nurse or a CNA or an LPN injures your loved on in a nursing home, the typical standard in that case, whether or not there’s a claim, will be whether or not they acted with reasonable care from an objective standpoint. Would a reasonable nurse, a reasonable CNA, a reasonable LPN do the things that these particular workers did in injuring your loved one? Were they acting reasonably? Would another nurse in another community have done the same thing? That’s the standard of care. That’s the issue, okay?
That is no longer the case during this state of emergency, during this pandemic. For a nursing home worker, now considered an emergency auxiliary worker, for a nursing home staff member that has injured somebody to be liable for that injury during a state of emergency, they must have exceeded gross negligence as the standard of care. In short, Covid-19 and Georgia nursing home liability just got more complicated.
So what is gross negligence? If negligence is just what would a reasonable person do, what is gross negligence? Well gross negligence under Georgia law has been talked about in several cases. I’m going to read you one. This is Johnson v. Omondi and this is a case from 2013 from the Georgia appellate court. Gross negligence – and you think about this, this is what Governor Kemp has decided in his ultimate wisdom to do is to make gross negligence the standard, and here’s the standard – I’m going to read it to you. I said I would read it to you a second ago but I just wanted to emphasize while we’re reading this, Governor Kemp did this. Again, covid-19 and Georgia nursing home liability will revolve around gross negligence.
Gross negligence is the absence of even slight diligence and slight diligence is designed as that degree of care which every man of common sense, however inattentive he may be, exercises out of the same or similar circumstances. In other words, gross negligence has been defined as the equivalent to the failure to exercise even a slight degree of care, lack of a diligence that even careless men are accustomed to exercise. Again, gross negligence is the equivalent to the failure to exercise even a slight degree of care.
Gross negligence is almost – it’s essentially slightly less than intentional conduct, meaning they meant to hurt somebody. So the effect this is going to have is going to mean that a standard case in which somebody injured could be compensated for that injury because of the negligence of somebody, that is no longer good enough. The conduct must have been grossly negligent conduct, and that bar is going to be very high for a lot of people, and that’s unfortunate because, again, there is no longer during the state of emergency oversight, proper oversight from a government perspective. There’s no oversight from a family perspective to keep an eye and an ear out for these loved ones. But now there is essentially almost no liability. That’s a dangerous recipe that we have in our state right now.
So gross negligence is now the standard. Now I’m not going to sit here and tell you that it’s impossible to sue somebody if your loved one was hurt during the state of emergency. It’s not. It’s still possible. It’s still possible because even though the standard is so much higher, there could be systematic failures, and evidence of systematic failures could be gross negligence. Evidence of extremely egregious conduct can be gross negligence. So I’m not saying that it’s impossible. I’m just saying that I think this was the wrong move. I think that I’m hoping that the legislature, Georgia Assembly, when it meets again, does something to reverse this somehow. I’m not even sure how. Or maybe Governor Kemp can retroactively pull this. But this is going to be, in my opinion, pretty devastating in terms of nursing homes running amok.
Now again, look, I sympathize with the fact that we are in a pandemic and it’s possible that we may or may not have seen this coming in January, February. It’s a hard argument to make in March. It’s definitely a hard argument to make in June. And so I get that we’re short-staffed, that we’re dealing with the most vulnerable population. I get that we have strained resources. But almost freeing an institution from liability is a recipe for disaster. But that’s our political two cents on that.
So at the end of the day, the Centers for Medicare and Medicaid Services, the Georgia Department of Community Health are the agencies responsible for overseeing the laws and regulations governing nursing homes. These laws, prior to COVID-19, had in-depth requirements regarding infection control, which would have included COVID-19 and pandemics. The laws have changed, again, mostly for the protection of these residents in terms of COVID-19 now, in terms of no visitation, the requirements to screen every resident, screen staff members every shift. And then the inspection process has changed also because of COVID-19. But I guess at the end of the day, the main thing that happened with regard to whether you can sue a nursing home for COVID-19 came out of the mouth of Governor Kemp. That to me is the real rub. That’s the real catalyst for this episode because what good are federal regulations involving infection control if we’re going to say we’re not going to hold them accountable to it.
Essentially, Covid-19 and Georgia nursing home liability is going to be a moving target for the time being.