Michael Gaynor
Dr. Eileen Hamby’s point of view on the disastrous consequences of ordering nursing homes to admit COVID-19 positive persons
By Michael Gaynor
May 26, 2020

Physicians, nurses, and other health care professionals have no right to play God. When we are to die is God’s decision and the health care system should not discriminate against the elderly.

DNY Foundation's top “don't” safety message is clear, concise and authoritative: “Don't play with matches or fire.”

Permitting a nursing home to accept a COVID-19 positive person is to be expected, especially when the capacity of nearby hospitals to accept such persons may be exceeded. If a nursing home can safely accept such a person, it should do so, especially during a pandemic when hospitals may be overwhelmed.

However, a nursing home is not a hospital and should not be expected to instantly become one during a pandemic.

Compelling a nursing home to accept a COVID-19 positive person is akin to compelling a nursing home to play with fire if the nursing home is not prepared to cope safely with the presence of that COVID-19 positive person needing health care.

Such compulsion is un-American, because it would violate the inalienable rights of nursing home residents and workers to life, liberty and the pursuit of happiness, as Thomas Jefferson put it in the Declaration of Independence.

That truth is so fundamental that state officials, including elected Governors and appointed Health Care Directors, are reasonably expected to know it.

If a nursing home operator believes that the danger of accepting such a person is too great, a state that nevertheless compels it to do so has a lot of explaining to do, even if sovereign immunity protects the state and state officials from liability. Is it simply the result of ignorance, stupidity and/or arrogance or, much worse, were state officials who imposed such a dangerous policy playing partisan politics in order to transform the condition of the United States from prosperous to calamitous before an impending presidential election that their party seemed destined to lose?

Ignorance, stupidity and arrogance are not nearly as bad as playing politics with a pandemic at the cost of thousands of needless deaths of nursing home residents.

We need to ascertain the facts, not to deny or refuse to face them.

That calls for determining what to reasonably expect from both nursing homes and Governors facing a pandemic without being prepared for it.

Health care is not my field, so I asked Dr. Eileen Hamby to provide her expert Point of View.

Dr. Hamby was born and raised in New York, and later moved to Florida. She is President of Health Management Specialists, Inc., a health care management consulting company in Florida. She is a Physical Therapist holding two national certifications in health care quality, Certified Professional in Healthcare Quality and Health Care Quality Manager. She also maintained a license as a Healthcare Risk Manager in the State of Florida for over twenty-five years. She earned a Bachelor of Science degree in Physical Therapy from Hunter College in New York and a Master of Business Administration and Doctorate in Business Administration from Nova Southeastern University in Florida.

Dr. Hamby has a wealth of health care experience from the clinical level to upper administration. She has worked as a Physical Therapist in multiple settings, including acute care hospitals, nursing homes and other long-term care facilities, outpatient, and home health. In Florida, she was the Assistant Administrator of a medical rehabilitation hospital, the Chief Operating Officer of a psychiatric hospital, and the Chief Executive Officer of a skilled nursing facility. In her capacity as Assistant Administrator, she also provided oversight of rehabilitation services in an acute care hospital, nursing home, psychiatric hospital, and rehabilitation hospital in a large medical campus center.

Later, she served as the Director of the Master of Science in Health Services Administration program at Barry University in South Florida, then Director of the Program in Physical Therapy and Regional Campus Coordinator for the Health Services Administration program at the University of Central Florida. Additionally, she served as Vice President of Baccalaureate Studies and the College of Business Administration at Daytona State College.

Dr. Hamby was the corecipient of the 2004 IBM Research Award in Health Care for her work on improving patient flow. She has published numerous journal articles and textbook chapters and is well recognized for her many national and international presentations.

Dr. Hamby is currently writing a book titled “Just One Drop of Water, Please!” that offers solutions for nursing homes, other long-term care facilities, home health, and at-home caregivers to improve quality of care for residents and decrease risk management issues. She has chosen topics based on both her professional experience and her personal experience with both of her parents who required long-term care interventions.

I expect that the response to the COVID-19 pandemic will be addressed, but Dr. Hamby's Point of View below is available now and very illuminating at this time when the truth needs to become generally known as soon as possible.

As Samuel Clemens (better known as Mark Twain) famously observed, "A lie can travel half way around the world while the truth is putting on its shoes.”

Full Disclosure: Dr. Hamby is my cousin on my mother's side.

Dr. Hamby’s Point of View on the Disastrous Consequences of Ordering Nursing Homes to Admit COVID-19 Positive Persons

Dr. Rachel Levine, the Pennsylvania Secretary of Health, mandated that nursing homes had to admit infected, but medically stable patients from hospitals. She should never have mandated what the nursing homes and other long-term care facilities must do in the perilous situation created by the spread of the COVID-19 pandemic to the United States. She should have offered guidance only. Each nursing home has a duty to review its ability to care for residents who are ill. For COVID-19 positive residents, isolation is required. Given the structure of most nursing homes and other long-term care facilities, there are generally two residents in a room and the beds are in proximity. There are typically privacy curtains (a potential source of transmission) that can be pulled around each person’s bed. Usually, there is one bathroom in the shared room, and often a shared shower room down the hall. Ideally, isolation residents should each be placed in a room where they do not share a bathroom.

We also can have a capacity issue. Many nursing homes and other long-term care facilities are normally full, or close to it, so where do you place the residents who have and do not have COVID-19? This is all a logistical nightmare. Isolation can work for those homes with just a few COVID-19 positive residents if they bring in extra qualified staff.

If possible, there should be a COVID-19 wing or separate area with staff that just works with those residents who are isolated.

If feasible, some non-COVID-19 residents should be transferred to their family homes or other facilities temporarily so that they do not get infected.

Dr. Levine’s 95-year old mother was fortunate enough to leave a Pennsylvania nursing home before becoming infected, but many other nursing home residents were not.

Most staff who work in nursing homes want to help other people. I have the greatest respect for those who dedicate themselves to assisting and caring for the residents of nursing homes.

However, nursing homes are not hospitals. They are skilled nursing facilities that help the sick recover, or they are long-term residences or home for those who need skilled care to help them with their daily lives. Many people do not realize that the staffing patterns in a nursing home are very different than those in a hospital. Nursing homes are staffed with far fewer nurses and mostly Certified Nursing Assistants. The level of education and training is very different.

So, to treat acutely ill residents, it may be difficult to adequately staff the facility. Elderlawanswers.com states that “federal law requires Medicare and Medicaid certified nursing homes to have a registered nurse (RN) on duty at least 8 hours a day, 7 days a week; and a licensed nurse (RN or LPN) on duty 24 hours a day. However, there are no minimum staffing levels for nurse's aides, who provide most of the day-to-day care.” Again, this is very different from the level of care received in hospitals. In hospitals, the patient’s regular physician is that patient’s attending physician, or more often, an assigned hospital physician, a hospitalist, assumes the patient care responsibility for the duration of the patient’s hospital stay.

Hospitalists are hired so that each patient can have a physician available 24 hours per day and regular physicians can continue to work in their practices, without the burden of the demands of attending to patients in the hospital. Similarly, in a nursing home, a resident’s personal primary care physician is often not the physician who takes care of the resident, so the dilemma is to find physicians who will dedicate their practices in whole or in part to the care of the nursing home resident.

In many areas, there is decreased availability of physicians to oversee the cases. Although there is a medical director for each nursing home, many facilities have one or more other physicians who treat patients.

Some of these physicians may cover several facilities. Physicians also often use physician’s assistants or nurse practitioners to assist them after the initial evaluation. For longer term residents, nursing homes and other long-term care facilities, physicians are required to visit their patients every 30 days, or for an extended stay, less often.

Physician visits are based on the resident’s acuity of care need, the insurer and state and federal requirements. Nursing homes are not meant for acute care patients. Some extended care facilities do have facilities to assist patients with a greater medical need. I think that some nursing homes and other long-term care facilities could handle the return of COVID-19 residents without any problem if they could bring in more RNs and other staff based on the number of COVID-19 positive residents. Some patients should not have been readmitted to the nursing home, but no longer qualify to stay in the hospital. That has been a large predicament with COVID-19.

I presume that the SNFs thought that they were following direct orders, but what SNF Governing Board, Medical Director, Administrator or Director of Nursing would think that it is okay to take positive COVID-19 residents if they were not able to adequately care for them?

I think that there is a comparative liability issue here. If they accept residents without proper facilities and proper staffing, then a breach of duty and harm can result, as tragically appears to be what happened in many cases.

An analysis of each individual facility would be necessary.

The governing board is responsible for the policies of the institution, and the administrator is responsible for the implementation of the procedures related to the policies. I think that they must have thought that they had no latitude, or maybe a corporate office was insisting that they accept those residents, but they should have fought the system if they could not meet the required standard of care.

Another point is that many (probably most) nursing home and long-term care residents have multiple comorbidities, plus are elderly, which puts them in a high-risk position to start.

Another issue is that the spread of COVID-19 also may have been caused by asymptomatic residents, physicians, and staff. Most places were performing temperature checks, but some people were afebrile during their entire illness. I am sure that medical errors were also a factor in numerous instances due to the increased complexity of the patient care required for very sick patients.

The high turnover of staff, a lack of comprehensive procedures, inadequate training, or quite often, the lack of adherence by staff to appropriate policies and procedures, were probably all contributing factors in some facilities.

The lack of a comprehensive quality management program where staff members are willing to admit their errors, is also a potential problem.

Additionally, countless staff members are not even aware of when they are the cause of a medical error or adverse event. It is truly amazing to me.

I have worked in many facets of health care as an administrator. I do not consider reimbursement in Skilled Nursing Facilities and long-term care facilities to be adequate, especially when the resident often needs advanced care when recovering form COVID-19. Reimbursement is much less than that of a hospital. However, when a loved one is sick, the patient and family often expect the level of care that they see in hospitals.

But the nursing home receives less reimbursement, which means less revenue. Expenses must be in line with the revenue. Since they are on a much lower budget, no one should expect staffing, supplies and equipment levels to be at the level and quantity that you would see in a hospital.

In evaluating the disastrous consequences of the spread of COVID-19 in nursing homes, especially in New York and Pennsylvania, it needs to be determined which patients were sent back to the nursing homes and long-term care facilities when they were still COVID-19 positive.

If they had two negative tests when they returned to the nursing home, all this is a moot point since they technically were no longer contagious.

Like Dr. Levine, New York Governor Andrew Cuomo showed little knowledge of the capabilities of most nursing homes.

I do not know why up front these patients were not sent to other facilities. In New York, the Javits Center, or the USNS Comfort, where there were trained staff, could have handled the situation.

Hospitals were trying to free up hospital beds to create room for those being admitted with COVID-19 but look at the dichotomy here. Some hospitals were discharging COVID-19 patients back into the nursing homes, only to spread the virus, then create an even greater need for hospital beds. It was a vicious cycle.

Why wasn’t earlier action taken? One thought goes back to the age-old ethical discussion on the use of resources for the elderly. There are many book chapters on this topic in ethics books. Some believe that resources should go to younger patients, not elderly patients. It is a right to life discussion for and about the elderly. Some doctors and health care facilities have strong views on this, although these institutions will not put that in writing. They will say it or imply it – but they are playing God.

I was horrified after consulting with two separate doctors when it came to the care of my mother who had advanced Dementia and was living in a nursing home. The doctors who saw her in their offices told me that they thought that it was best to “let my mother go” even though they admitted that they did not know what the problem was. I was not asking for heroics, but if the problem was treatable, I wanted her treated.

Given my background and the fact that it was my mother, I was not impressed with their attitude. When back at the nursing home, with her lab values continuing to worsen, I asked the facility to call 911.

The emergency room physician had the same attitude as the other two doctors, but a hospitalist assigned to her case, told me immediately what he thought the problem was. She had a blood transfusion and returned to her happy self.

Physicians, nurses, and other health care professionals have no right to play God. When we are to die is God’s decision and the health care system should not discriminate against the elderly. It is interesting how views change when it involves yourself or a loved one.

So – who to blame? If Dr. Levine or Governor Cuomo told someone to jump off a bridge, would that person jump if he or she thought that it would cause harm? What was everyone thinking?

As I said earlier, I think there is comparative liability. Gross negligence on one person’s part – probably not. A broken system with broken components – most definitely yes. Maybe everyone would wake up and obtain clarity if some of them spent a few nights in the brig. This is serious stuff and this pandemic just exposed many of the existing problems.

In quality management, we talk about best practices. Maybe it has been too early to determine a gold standard, but nursing homes and the health care system in general, can compare what is working and not working in their facilities, then share it with one another.

There is much creative talent in nursing homes and other health care facilities. Quite often, there is talent that can figure out best practices that can evolve over time. Best practices are not static except for a very specific moment in time. Then new best practices are developed and shared. Since this is an ongoing process, communication is key.

With COVID-19, we have seen this collaboration and ingenuity evolve under the direction of President Trump – a bringing together of the forces that search for best solutions. Work is being coordinated among researchers, corporations, agencies, health systems, components of the health care systems, professional associations and organizations, regulators, physicians, all fields of health care, and the public to find solutions. This is necessary to create a successful outcome for those afflicted with the virus, to control the spread, and end the pandemic.

Sometimes a proposed solution does not work, but well thought out attempts at effective care have to be made to move forward, and solutions need to be implemented throughout the system including for nursing homes, which have a major stake in the process.

We look at hospital capacity, numbers of ICU beds, number of ventilators, burnout of health care workers in emergency departments and other front-line health care workers, but where did the nursing home fit into what we were prioritizing, especially since that is where many of the most vulnerable reside?

Something so obvious was missed by so many!

Why were we seeing that some states and counties had better statistics than others – less transmission, more recoveries, less deaths, etc. I think that it is how the spread was handled, how hospitals decided to handle the virus, the capabilities of the staff, including education, training, and dedication, and the willingness to not give up so that risk could be reduced, lives could be saved, and outcomes would be successful.

What did one facility do versus another, how did corporations and labs coordinate their efforts, and how did insurers, public health agencies, hospitals, nursing homes and others coordinate their efforts on behalf of the patient? It should have been a total team approach. We are independent but at the same time interdependent. We found out that in some cases, we were controlled by a few, who dictated what to do without keeping up with best practices that needed a sharing of resources.

Looking at best practices, we need to determine what the most successful states did to minimize risk of COVID-19 in nursing homes and other long-term care facilities. In Florida, Governor Ron DeSantis, in cooperation with the Agency for Health Care Administration, public health officials, the National Guard, local agencies and others, shut down facilities to visitors when it was clear that our elderly were being put more at risk. Governor DeSantis prohibited COVID-19 patients from being discharged from acute care hospital into nursing homes and long-term care facilities. The Agency for Health Care Administration provided directives for nursing homes so that they could effectively respond to cases of COVID-19.

For some areas of the state, Governor DeSantis called in the National Guard to aid in performing COVID-19 testing and to assist in transporting COVID-19 positive residents to the hospital. Residents who were positive were isolated quickly. If you drive by a nursing home or long-term care facility in Florida, you will see a police officer or other official preventing visitors from entering the building.

Temperature checks have become standard protocol for residents, and for employees and health care team members when entering the building. Appropriate and adequate numbers of personal protective equipment were provided. Additional training for infection control was performed and retired or currently non-working health care professionals and physicians were requested to consider working during the pandemic.

These initiatives under the leadership of Governor Ron DeSantis were helpful to potentially reduce the number of positive COVID-19 in residents and staff. Furthermore, the Centers for Medicare and Medicaid Services authorized hospitals to bill for residents to be allowed to stay in the hospital for a longer period.

What about New York? Towards the end of March, Governor Andrew Cuomo mandated that nursing homes were required to admit medically stable COVID-19 patients even though they were still positive.

Governor Cuomo banned visitors while he was compelling new admissions or readmissions for positive or suspected positive patients. It makes no sense. Also, nursing homes were not permitted to require testing of discharged hospital patients prior to admission into the nursing home. His mandate was on March 25, and was later changed, but only after so many elderly people had died.

Governor Cuomo approved a budget at the start of the pandemic that protected nursing homes and hospitals from lawsuits pertaining to COVID-19.

Governor Cuomo speaks often about his mother on national television. I believe that he would protect her at all costs. But as more is learned about the handling of COVID-19 in New York, it makes my stomach turn. I say, how could something like that happen to other people’s mothers and fathers in today’s society?

It was a similar situation in Pennsylvania where it was mandated that nursing homes admit infected, but medically stable patients from hospitals. The rush to discharge such vulnerable residents from the hospitals, is unimaginable. Often, they ended up spreading the virus which brought even more patients into the hospitals. Again, this is pure unintelligible irony.

When I first saw how many residents were becoming infected and dying from COVID-19, I was thinking that many people in nursing homes died needlessly. The system failed many residents and some people in leadership roles, including some governors, helped to create nightmares with their directives that cost lives.

The not so generous side of me immediately said how stupid and how ignorant! It is horrible that the past cannot be changed but is time to do the right thing and do it well, drop the partisanship and promote best practices.

Full disclosure: I am writing a book about the solutions for these and many other long-term care deficiencies.

© Michael Gaynor


The views expressed by RenewAmerica columnists are their own and do not necessarily reflect the position of RenewAmerica or its affiliates.
(See RenewAmerica's publishing standards.)

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Michael Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member... (more)


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