The Public Health Emergency reached a one-year anniversary milestone on January 31, 2021. While we have seen only limited negligence and wrongful death COVID-19 related lawsuits against senior living communities this past year, the statutes of limitations for filing these types of lawsuits will begin to expire. Most states’ statute of limitations are one to three years. Based on the recent decisions in Federal Court that essentially deny to senior living communities immunities under the PREP Act and the lack of consistency and even the repeal of state immunities, we are preparing for the lawsuits that are expected against senior living providers. This includes proactive defense strategies and grassroots advocacy.

Since 2001, Rebecca and the Adelman Law Firm have worked to raise awareness about and the need for quality end-of-life care and the intersection with quality of patient-centered care. Given rapid development in 2020 of the COVID-19 pandemic and its impact on long-term care, conversation, education and training and policy reform related to end-of-life are central to the evolution of care delivery. To that end, Adelman Law Firm has formed the Adelman-Mettle Alliance for Optimal Supportive End-of-Life Care in Long-Term Communities. Mettle Health provides education, counseling, employer assistance programs and other services.

Read our interview with Mettle Health co-founders BJ Miller, M.D. and Sonya Dolan, and learn about the Alliance’s plans to contribute collaborative end-of-life care planning.

The New Year is already delivering some positive developments for long-term care providers and immunities and other protections from professional liability.

Since the pandemic began, we’ve been reporting on the Public Readiness and Emergency Preparedness Act (PREP Act), HHS Advisory Opinions and decisions from federal courts around the country (see, the October 2020 Adelman Advantage and Deny Everything Podcast Episode #3) regarding immunity from professional liability for long-term care providers. In lawsuits against nursing homes, our defense teams have been invoking the PREP Act to claim immunity from COVID-19 lawsuits and related claims. There have been several important developments that support immunity for nursing homes in COVID-19-related lawsuits.

In Memory Melvyn K. Adelman

April 9, 1934 to November 21, 2020

“There are far, far better things ahead than any we leave behind.” C.S. Lewis.

The ending of 2020 marks the beginning of 2021. Endings. Beginnings. Suffering and loss. Hope and inspiration. Experiencing and trying to embrace the paradoxes of life have defined this extraordinary year. A never-ending thank you to the healthcare teams and other essential workers who have and continue to sacrifice so much for our communities.

In what is widely agreed to be record time by historical standards, the medical-research community has produced two apparently effective vaccines against the COVID-19 virus, with more on the way. With many businesses, especially larger ones, on work-from-home status out of concern for both the health of their employees and customers and also the potential liability risks to themselves, employers now see that the only way to return to normal and get back to work is through a nationwide vaccination program as the answer.

The hue of the answer, as all legal ones are, is tempered by state law and you should consult with an attorney for your specific considerations.Federal law however gives good guidelines for our analysis. Bottom line up front:

As I’ve shared in several newsletters, our COVID-19 defense team has been involved in the tracking, assessment and defending the pandemic lawsuits and continue to share knowledge in the industry about defense best practices. On the Adelman Advantage podcast, John Woods and I recently discussed the Public Readiness and Emergency Preparedness Act (PREP Act) and recent decisions from federal courts around the country finding that the PREP ACT did not preempt state court nursing home lawsuits. We have been using the PREP Act to argue that the immunities afforded in the PREP Act provide liability protections for the use of pandemic and epidemic products and therefore covers the claims alleged in state court Complaints.

Before exploring the September 2020 Final Report and recommendations of the COVID-19 Commission for Safety and Quality in Nursing Homes (“Commission”), some background is important. Read more.

I’ve rewritten this month’s article three times in the past two weeks (thanks to the publisher for eternal patience) because it’s hard to keep up and keep track of the many punitive actions that Centers for Medicare & Medicaid Services (CMS) has taken during the past two weeks.

As I write this version, “CMS is taking unprecedented action to ensure that nursing homes are doubling down on efforts to prevent the spread of the virus,” by offering an infection control training webinar program for staff and management. Threatening fines and funding cut-offs, CMS also announced that it will require facilities to test staff regularly. Last week…

Thanks to Greg Cook, President of Future Care Risk Retention Group, or co-authoring this month’s Adelman Advantage article with me. Greg’s firm provides professional liability and general liability coverage to long-term care facilities throughout the United States. Greg offers a unique perspective as he also is the President of an insurance company that provides professional liability insurance to physicians. Spanning across various healthcare specialties with a focus on liability coverage, I invited Greg to share his insights.

The Select Subcommittee, chaired by Rep. James E. Clyburn, is examining the devastating impact of the coronavirus pandemic on nursing home residents and workers, including the deaths of more than 40,000 Americans in nursing homes across the country.

Here are the steps AHCA/NCAL propose for states to take to alleviate the challenge that the workforce faces along with long term solutions:

This article will focus on the April 19, 2020 CMS policy on “Upcoming Requirements for Notification of Confirmed COVID-19 (or COVID-19 Persons under Investigation) Among Residents and Staff in Nursing Homes” requiring that skilled nursing facilities report to the CDC on a weekly basis, based on the information they have on hand. CMS will also be assessing Civil Monetary Penalties (CMP) of possibly $1000 per week (and may increase) if nursing homes are not reporting.

Adelman Law Firm has always lived by a core value to take care of our clients. This enduring value guides us as we face the difficult challenges and changes in our daily lives. I am offering complimentary education, legal, advisory, crisis planning and risk mitigation resources and services for crisis solutions related to COVID-19 in healthcare, employment, and other issues so please contact me directly. In the meantime, rest assured that we are closely evaluating the litigation climate and are preparing risk mitigation and other defense solutions and strategies. Here is a short overview of the industries and claims we are assessing and these continue to broaden daily.

This article provides an overview of the regulations and legal authorities as well as initial recommendations for evaluating your organization’s governing body.

Please check out AALNA and the incredible opportunities for your organizations and nurses for education, engagement and expanding the network of nursing in Assisted Living!

Rebecca reviews highlights from 2019 and looks ahead to 2020 trends in her year-end Adelman Advantage.

President of Fire and Life Safety, Inc. Stan Szpytek joins Rebecca to offer insights on Life Safety and Emergency Preparedness and CMS regulations.

While difficult to think about, it's important to prepare for the risk of an active shooter event at your senior living facility. Rebecca and Steve Wilder of Sorensen, Wilder and Associates discuss strategies to combat an active shooter or armed intruder in a health care setting in this month's Adelman Advantage.

Lori Porter of NAHCA joins Rebecca to discuss the future of long-term care staffing needs.

Marijuana use in a senior living facility is a complex subject. Rebecca provides an overview of the legalization movement and addresses policy considerations, as well as resident risk management and employment issues.