By Jeffrey J. Downey, nursing home attorney serving Maryland, Virginia, and the District of Columbia
I’ve written before on the continuing actions by nursing homes and their corporate heads on how during the pandemic, they have used every possible method to ensure that profitability, not care for its patients, remains the top priority.
And in some cases, nursing homes are going as far as preventing family members from seeing their loved one in a nursing home or assisted living facility, interpreting the law as they see fit. This was the case in Maryland as recently as September.
It should be noted that all restrictions within our region have been lifted on visitation rights if the visitor follows proper protocols, wearing masks, and social distancing in some cases.
In Virginia, the Virginia Department of Health followed Medicare guidelines, which states that facilities should allow indoor visitation at all times and for all residents, regardless of vaccination status, except for a few circumstances.
These scenarios include limiting indoor visitation for:
- Unvaccinated residents, if the nursing home’s COVID-19 county
positivity rate is >10% and <70% of residents in the facility are fully
- Residents with confirmed COVID-19 infection, whether vaccinated or
unvaccinated until they have met the criteria to discontinue
Transmission-Based Precautions; and
- Residents in quarantine, whether vaccinated or unvaccinated, until
they have met criteria for release from quarantine
Of course, there has been pushback by some about unfettered access to nursing homes, as some have gone against Governor Northam’s July 1st Emergency Order to lift all restrictions. Some facilities have gone ahead and imputed a vaccine requirement for all their staff members, according to news reports.
Not all employees of nursing homes have been vaccinated. Of course, the CDC recommends vaccinations for all healthcare workers. But many states including Virginia have not mandated vaccinations for all healthcare workers, including nursing home staff. Under President Biden’s emergency vaccination regulation, put out by CMS, all nursing homes participating in the Medicare and Medicaid programs (which is almost all facilities) must be fully vaccinated by January 4, 2022. We have already seen challenges to the President’s vaccination mandate and can expect more challenges to come.
Of course, nothing prevents a nursing home from requiring their staff to be vaccinated without a mandate. “Many responsible nursing homes and assisted living facilities have taken this step,” explains nursing home attorney Jeffrey J. Downey. “My mother is in an assisted living facility in New York and her facility requires the vaccination for all staff and residents, unless they have a medical condition that prohibits it.” Consumers need to be proactive in demanding that these facilities require their staff to be vaccinated. If I was looking for a new nursing home for my loved one, it would be one of my first questions, explains Downey.
As November 2021, nearly 5.3 million Virginians, over 60 percent, have been vaccinated, according to VDH, but there is no specific data as to which nursing homes or assisted living facilities have gone ahead and require full vaccination for staff members. “That’s an unacceptably low rate for vaccinations,” explains Downey. “If we had that low a rate when Polio was being fought, we would still have Polio today. “
And in Maryland, as of September 1st, all nursing home staff members are required to have their first does of Covid-19 vaccine. The three westernmost counties in the state topped the state case rate, according to the Maryland Department of Health.
In the District of Columbia, the mask mandate reportedly will be lifted at most public places next week, but the indoor visitation requirements as set forth in the fall of 2020 still stand and were reiterated again last month.
As the second anniversary of the arrival of the virus in the US approaches, the hesitation by those in the nursing home industry to provide policies and procedures to requiring all staff is vaccinated is mind boggling. This is one of the most vulnerable segments of our society who is literally held captive by this pandemic. These vulnerable seniors should not be infected by those same healthcare providers who are charged with their protection. As most states have passed laws providing immunity to nursing homes who infect their residents with Covid-19, there is little industry incentive to pursue such mandates. This needs to change.
If you or a loved one has been injured as a result of negligence by a nursing home or assisted living facility, contact the law office of Jeffrey J. Downey for a free consultation.
The Law Office of Jeffrey J. Downey
8270 Greensboro Drive, Suite 810
McLean, VA 22102
Phone: 703-564-7318 or 703-564-7357 Fax: 703-883-0108