Copyright 2020, American Health Law Association, Washington, DC. Reprint permission granted.
WilmerHale’s Matthew Benedetto, Brian Mahanna, and Russell Spivak recently co-authored an article titled, “COVID-19 Presents Existential Legal and Regulatory Challenges for Long Term Care Facilities.” The piece was published by American Health Law Association in its October 2020 issue of Health Law Connections magazine.
Excerpt: The novel coronavirus (COVID-19) has devastated—and transformed—nearly all aspects of life, in every community in the country, with no end in sight. While anyone can contract the virus, the elderly population is particularly at risk—especially those with weakened immune systems and other co-morbidities, such as diabetes or heart disease. The pathology of COVID-19, coupled with the fact that the virus is most easily spread in indoor settings where individuals congregate, makes Long Term Care Facilities (LTCFs) highly vulnerable to outbreaks, with devastating results.
As of August 13, more than 68,000 deaths—or 41%—of the nationwide total were linked to LTCFs. Operators of LTCFs have struggled—often unsuccessfully—to keep their facilities equipped with personal protective equipment and to secure adequate testing kits for the safety of residents and staff. Although the scope of outbreaks varied by region, the spring was terrible, the summer in many respects worse, and the fall—when flu season begins—looms ominously on the horizon.
Yet other risks and challenges for LTCFs are increasingly coming into focus: a wave of investigations, litigation, and rapid regulatory changes have begun, and will continue for the foreseeable future. Properly addressing these legal issues will be essential for many LTCFs to remain solvent. This article assesses and addresses these issues, offering perspectives LTCF operators should consider.