Nursing Homes Face Fines, Lawsuits Unless They Test for COVID-19 — But Access Often Out of Their Hands

June 8, 2020

As increasing numbers of states recommend so-called “universal testing” for nursing homes and long-term care facilities in the wake of the impact of COVID-19, skilled nursing facilities need to ensure they follow the applicable guidelines — a significant challenge given how varied that guidance could be.

And depending where a SNF is located, testing capacity could be the difference between being in compliance with local laws or facing significant fines or lawsuits.

In the state of New York, Gov. Andrew Cuomo mandated in May that nursing homes test all staffers for COVID-19 twice a week; SNFs in the Empire State could face significant fines and even loss of their licenses if they don’t comply.

Farther west in Illinois, Gov. J.B. Pritzker modified an executive order granting health care providers liability from lawsuits by noting that nursing homes are protected only from civil liability lawsuits, Capitol Fax reported in mid-May. The protections in Illinois now only apply to cases involving the diagnosis, treatment, and transmission of COVID-19 – and are only available to nursing homes that “provide widespread testing” to staff and residents, according to the blog.

But a SNF operator might not have the ability to conduct COVID-19 tests, even if it wants to make testing a priority. And as regulators and lawyers turn their focus toward how nursing homes have handled the crisis, they will be looking at it with the benefit of hindsight.

“Testing capability is riddled with a number of factors that often are out of the hands of the nursing facility,” Constance Endelicato, a partner at the law firm Wood, Smith Henning & Berman who represents health care providers that include SNFs, wrote to Skilled Nursing News in an e-mail on June 3. “The facilities face the daunting task of attempting to abide by the governing recommendations, keeping in mind that with the exception of New York, recommendations will not necessarily define the standard of care under the pandemic crisis. We need to remember that the entire medical community was not prepared for this unknown and eerily unpredictable virus.”