COVID-19: You Could Be Sued with Criminal Negligence & Civil Damages

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CareSafely Webinar | Safety & Legal Risk

Over 55 criminal and civil lawsuits have been filed against LTC directors and executives related to COVID-19 incidents. Could you be next? Join us for an informative webinar with an LTC-expert defense attorney who will brief you on the lawsuits and how you can protect yourself from personal liability while also protecting your organization.

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COVID-19 Lawsuits: Protect Yourself from Civil & Criminal Liability

Kate Wallace: Good afternoon, and welcome to the webinar. I’m Kate Wallace, director of infection control at CareSafely, and I’ll be moderating today. Excuse me. First a little late housekeeping.


Kate Wallace:  Today, our panelists are going to cover:

  • Current State of Lawsuits and Outlook
  • Best Practices to Limit Liability
  • Risk Management Best Practices and
  • Resources You Can Leverage.

And finally, we’ll have a question and answer section at the end. There’s a Q&A button at the bottom center of your Zoom window. Please, feel free to start asking questions as we go through the agenda. We will try to get to as many as we can during the Q&A section. We know how busy you are and we’ll respect your time and end up 45 past the hour. Thanks for joining us.

Now I’d like to introduce our expert panelists today. Amy Yarbro is a partner at Morrison Mahoney and specializes in the nursing home, assisted living, and home care agency defense. Raj Shah is the founder and CEO of CareSafely.

Amy’s going to open our session on the current state of affairs with COVID-19 related lawsuits.

Current Lawsuits and Outlook

COVID 19’s Devastating Impact on Residents, Staff, Industry

Amy Yarbro: Thank you, Kate. According to a New York Times article, over 87,000 of the nation’s 1.4 million long-term care residents have died in relation to COVID-19. And more than 581,000 residents and patients have been infected. As of September, over 750 nursing home staff have died from COVID-19 complications. Nationally, this amounts to approximately 38% of the COVID-19 deaths. But in some states, it’s over half of the deaths.

Current Lawsuits and Outlook

Amy Yarbro: There have been several lawsuits that have been filed across the country to date and many more are expected. Reviewing the lawsuits that have been filed, you see a lot of recurring issues concerning failure to test or delay in testing for COVID-19, alleged lack of communication with families and staff regarding COVID-19 testing results and COVID-19 diagnosis of residents, alleged failure to follow CDC guidelines, such as social distancing, isolation, wearing face masks, and PPE. There are also some allegations of concealing cases of COVID-19 as well as understaffing. In at least two cases, there have been allegations of criminal neglect.

Quick Brief of the Types of Lawsuits

Amy Yarbro: You all know that the legal system can be very complex and there are many types of lawsuits and many different jurisdictions, with many different types of laws. Today, what I intend to do is speak very broadly about some of the legal issues faced by nursing homes with regard to COVID-19. At no point do I intend to offer legal advice and I recommend if you have a specific concern that you can speak with a local attorney. Now that I’ve given my disclaimer, I’d like to go ahead and move along with the webinar. So, you have civil lawsuits and also criminal actions. A civil lawsuit is a case that’s brought by an injured party or the family of a decedent in the case of a wrongful death action in which the plaintiff is seeking monetary damages or monetary compensation. A criminal case, as you might know, is an action that’s brought by the government with criminal charges that can result in fines or potentially jail time if the person is convicted of committing a crime. Lawsuits can be brought against individuals or organizations and in the long-term care setting, we see lawsuits that are brought by facilities, as well as the named defendants such as nurses, directors of nursing, medical directors, and even administrators. You can also have class action lawsuits and very broadly speaking, a class-action lawsuit is a case that involves several plaintiffs with claims that involve common questions of law or fact. One plaintiff is then designated to represent the interests of the entire class. There’s an entire analysis that goes into whether or not a group of plaintiffs is appropriate for a class-action lawsuit, but generally speaking, we’re talking about a group of plaintiffs that have a common interest. And finally, cases can be brought in state court or in federal court. Generally speaking medical malpractice actions or nursing home malpractice actions tend to be state law claims. However, you may find yourself in federal courts if your case involves a federal question or diversity, meaning that the parties are from different states.

Sample Cases Across the Country

Amy Yarbro: We’ve highlighted some states in blue that have cases that are currently pending and I’ll briefly give a rundown of some of the things that we’re seeing and the facts that are specific to those cases.

In Massachusetts, there was a class-action lawsuit filed against an assisted living facility that had a dementia unit. In that case, 76 residents died as a result of COVID-19 and another 84 were infected. In that case, it is alleged that a resident tested positive for COVID on March 21st, but continued to live among other residents because the doctor said everyone had already been exposed. In that case, also the facility combined dementia units despite residents having tested positive. So, you had residents that had tested positive for COVID living next to residents who did not have a positive diagnosis. Residents were in beds that were next to each other with no separation and it was alleged that it was difficult for staff to provide care. There are numerous allegations in this case among them are that census records were incomplete or disorganized, understaffing with high turnover, and no understanding of what the infection control guidelines were by staff. Another allegation, in that case, is that the facilities superintendent reported that a resident had tested positive, but had been isolated and that the unit had been quarantined. However, it was later determined that that was not the case at all. Besides having a class-action civil suit, there were also criminal charges that were brought against the superintendent, as well as the medical director and there was an indictment by a grand jury in September. The charges were criminal neglect with bodily injury. These individuals could face up to three to 10 years in prison if convicted.

In Illinois, a plaintiff alleged that a facility did not have enough staff to adequately care for residents and also failed to have staff wear PPE or undergo COVID testing. The plaintiff, in that case, claims that she observed staff not wearing masks and she also claims that when she visited her mother, there was no partition separating her mother from her roommate.

In New York, there have been at least two lawsuits filed. One against a facility with 39 COVID related deaths and another against a facility with four COVID related deaths. In that case, the plaintiff alleges that there was a failure to separate residents, to enforce social distancing, to not cancel group activities and communal dining, and also a failure to prevent visitors from entering the facility in a timely manner.

In California, there have been at least three lawsuits filed. One of which the plaintiff alleges that the facility did not take precautions to identify or isolate employees or residents infected with or exposed to the virus. Allegations include no provision of PPE, not permitting staff to wear a mask. There’s one allegation that a staff member, as happens commonly in this industry, a staff member worked in two different facilities. That staff member had been exposed to COVID in the other facility, but there was no effort allegedly to make staff or residents aware of the fact that this employee had been exposed to COVID. There’s also an allegation that the plaintiff’s father was given a new roommate who had shared a room with someone who had tested positive for COVID. In another case, the plaintiff claims that the facility did not notify her of her father’s COVID diagnosis until the day before he died despite the fact that he had been tested positive a week earlier. There’s also a claim of understaffing, as well as a violation of infection control policies. And in a third case in California, the plaintiff alleges that the decedent’s positive test result came back the day after he died, but that the physician, affiliated with the facility, omitted COVID from the death certificate. Allegedly fraudulently. Plaintiff’s attorney, in that case, has asked the Los Angeles District Attorney’s Office to open a criminal investigation into the matter.

In Oregon, the facility is facing seven lawsuits related to seven deaths between April and May. The plaintiffs claimed that the families were not informed of test results and that the facility was not forthcoming about safety practices. They also allege that residents with COVID-19 were not isolated.

In Tennessee, 160 residents tested positive for COVID at a facility and there were over 24 deaths. Allegations, again, include failure to isolate patients and failure to use and supply PPE. The plaintiff also alleges that employees with symptoms were told to come to work or to be fired. There’s also an allegation that some employees attended a conference in New York and returned to work without quarantining for 14 days.

In Washington, there was a facility with 129 COVID cases and 37 deaths. The plaintiff alleges that she was notified that her mother had died of COVID by a voice mail from the nursing home 22 hours after she had been notified that her mother had contracted COVID. The plaintiff also claims that that facility held a Mardi Gras party for residents instead of quarantining them. The plaintiff claims that staff was not provided with proper equipment or training to deal with COVID-19.

And in Pennsylvania, a facility had 73 residents died of COVID, and families of 10 of the deceased residents have filed suit against the facility, its owners, and the medical director and have made claims that the facility failed to separate infected residents from the general population, permitted infected employees to work, and provided misinformation to family members.

Finally in Florida, a plaintiff’s attorney reported to the press that he is working on a case in which it’s alleged that the facility concealed residents’ fevers by putting ice packs on their heads in order to avoid reporting COVID-19 cases and also discouraged staff from getting tested.

Some Good News

Amy Yarbro: Despite these lawsuits, there is some good news. At least 26 states, thus far, had implemented immunity provisions protecting long term care facilities and other health care providers from civil negligence lawsuits. These immunity provisions have been enacted with legislation and also by executive order. They provide immunity for acts or omissions that happened after state public emergency orders were issued in March, but not before.

Federal Immunity Provision – PREP Act

Amy Yarbro: There’s also a federal immunity provision. So, if you’re in a state that does not have its own immunity provision, you may be able to utilize the federal laws immunity provision under the PREP Act. The PREP Act is the Public Readiness and Emergency Preparedness Act. This has been around for quite some time and it allows the Secretary of Health and Human Services to deem an event a public health emergency and take action to utilize funds established by the Treasury order to manage the emergency. Contained within the PREP Act is a provision that provides that a covered person shall be immune from suit and liability with respect to all claims relating to the administration or the use by an individual of a covered countermeasure. And a covered person includes a licensed health professional authorized to administer countermeasures. This immunity provision does not apply to claims of willful misconduct.

Example — Massachusetts; Example — Rhode Island

Amy Yarbro: On this slide, we have two examples of immunity provisions in the two states that I happen to practice – in Massachusetts and Rhode Island. In Massachusetts, the legislature passed a bill providing for immunity from negligence actions. However, it’s important to note that this immunity granted protection does not protect against gross negligence or recklessness or intentional conduct, nor does it apply to consumer protection actions brought by the attorney general or to false claims actions brought by or on behalf of the Commonwealth. In Rhode Island, instead of legislation, we have an executive order that was issued by the governor, which again applies to health care entities and long-term care facilities, and it does protect negligent acts, but like other immunity provisions, it does not protect against gross negligence, or willful misconduct. And in a lot of the cases, actually, in almost all of the cases that I described to you earlier, it appears that the plaintiff’s attorneys are attempting to get around these immunity provisions by pleading gross negligence or recklessness in their complaints. Gross negligence does tend to be a higher standard and it depends. Your states may have their own common law with respect to what that standard is, but it does tend to be harder to prove than just or ordinary negligence.

And Some Bad News

Amy Yarbro: And there is some bad news. So, again, there are exceptions to these immunity provisions, which we just described with respect to gross negligence. Also, with respect to the federal immunity provision, the PREP Act has come up just recently in August, as well as October in two federal courts in which the defendant nursing homes asserted the federal immunity as a defense to the plaintiff’s claims that they failed to provide proper care with respect to COVID-19 cases. The federal courts in both, this is in Kansas and Pennsylvania, rejected that and found that the plaintiff’s claims were related to the failure to use countermeasures rather than the use of countermeasures as required by the statutory immunity provision. And therefore, that federal immunity provision did not apply. It’s interesting how the court sort of parsed the statute in order to find against the nursing homes in that case. And it will be interesting to see if the federal courts and other jurisdictions rely on these opinions when there are similar challenges. There are also some moves at the state legislative level to repeal immunity provisions. In fact, in New York, lawmakers are attempting to repeal an immunity law that was passed earlier this year. And it’s worth noting that in Tennessee, lawmakers did try to pass a bill that would have provided immunity for healthcare workers, but it failed. And after it failed, the governor of that state-issued an executive order giving nursing homes protections from COVID lawsuits. That really begs the question as to what is the authority that the governor had to issue that executive order, particularly in a state where the legislature was not able to pass that provision. We have not yet found any challenges to these executive orders, but it’s just, I think it’s something worth noting in this context.

And the other thing is some immunity provisions are expiring. So, in Rhode Island, for example, the executive order that was issued by the governor expires next month. Now, it may very well be that the governor will extend that, given the ongoing nature of the COVID-19 pandemic. But it’s not a guarantee and it’s important to realize that these immunity provisions may not be around forever. And with respect to federal liability, there’s the False Claims Act. So, the False Claims Act is another act that’s been around for a long time and it prohibits a person from knowingly submitting a false or fraudulent claim to the United States for payment or approval or knowingly making any false statement material to such a false or fraudulent claim. Liability under the False Claims Act can include civil penalties, compensatory damages, and treble damages. Where this comes into play with respect to COVID-19 is that many facilities may have accepted funding from the government via the CARES Act (the Coronavirus Aid Relief and Economic Security Act) or the Provider Relief Fund. Those acts provided money for nursing homes for healthcare expenses or lost revenue due to COVID-19, but they also came with certain terms and conditions, which the nursing homes are expected to comply with. In the event, a nursing home accepted funding from the government in relation to that act and somehow did not comply with the terms and conditions. There may be a possibility of exposure under the False Claims Act. Notably, the Department of Justice over the summer issued a statement that it would be actively utilizing the False Claims Act to ensure that money provided for COVID relief was not procured as the result of fraud. On this slide, I also made note of the Worthless Services Theory. This is one theory and one way that a plaintiff may try to establish a case under the False Claims Act. And by the plaintiff the actual term in this type of Act is called a relator or whistleblower, so to speak. But the Worthless Services Theory is premised on the theory that the facility received reimbursement for services it did not provide. That is the services were worthless.

And finally, on this slide, we’ve noted 42 CFR section 483.80. This regulation is probably all too familiar with most of you attending this webinar and has to do with infection control. Essentially, it requires facilities to develop and maintain an infection control plan that protects the health and safety of residents, staff, visitors, and the general public. This summer, it’s been amended at least twice. One of the new provisions requires facilities to electronically report information related to COVID-19 that will be used to monitor trends in infection rates and allow public health authorities to establish policies. This reporting is to be done on a weekly basis and must include information related to suspected or confirmed cases of COVID-19, total deaths including COVID deaths among residents and staff, PPE and hand hygiene supplies at the facility, ventilator capacity, and supplies at the facility, resident beds, and census, as well as staffing shortages, just to name a few of the requirements. I believe Raj will likely touch on this in his presentation, his portion of the presentation when I’m finished, but it’s because of this, it’s important to have a program that allows you to track this information. Not only so that you can make these mandatory reports to CMS. But also so that you have a record of these things in case you find yourself the subject of a lawsuit down the road.

Implications of Defending a Lawsuit

Amy Yarbro: I think everyone’s heard about attorney’s fees, those can certainly add up. In defending nursing home cases in particular, these cases can get complicated and they can be very long-lasting. So, legal fees are one of those things. But another thing is time away from managing operations and care giving. So, while your attorneys will be working hard to defend you and will be doing quite a bit of the work, you will have to be involved at some point, not only in the initial investigation and interviewing employees, but also in the discovery process, in producing documents and documents could be related to the care of a specific patient. It could also be related to your policies and procedures, your billing, any number of documents. You may also have to take time away from depositions. So, there’s a lot that can be involved in defending a lawsuit. Media coverage, you know, this is such a hot-button issue right now and the media is all over these COVID-19 lawsuits in nursing homes, because it’s having such a big impact and it may certainly, you know have a business impact, a census impact and may affect employee morale. And when it comes to litigation, there’s no such thing as, you know, short and sweet nursing home lawsuits. You can expect to be involved. If you are a defendant, you can expect your lawsuit to go on for several years, particularly in light of the pandemic and the effect it’s having on the court system. Everything is being delayed and pushed back.

Best Practices to Limit Personal and Organizational Liability

Follow Federal, State, and Local Guidelines

Amy Yarbro: One is to follow federal state and local guidelines, stay on top of the latest CDC and CMS guidance and ensure that you’re in compliance with this ever-evolving guidance. They’re constantly making updates on the CDC’s website and there’s a lot of very detailed guidance with respect to COVID-19. And I think it’s important to note too, and a lot of the lawsuits that we looked at, the timing is going to be key, the timing and the chronology of events. So, when was certain guidance enacted and what actions did the nursing home or the facility do in response to that guidance? So, you want to make sure that you’re on top of all of that and also comply with the state and local regulations, as well as data regarding COVID-19 cases in your area.

Show Honesty, Transparency, and Empathy 

Amy Yarbro: A resounding theme and all of the lawsuits that we looked at our families who feel very, appear to feel very angry or frustrated about the lack of information that they claim essentially that information that wasn’t given to them or that was given to them very late. So, to the extent that you’re able to provide notice to families regarding their loved ones’ condition as well as the status of COVID-19 cases in your facility and to the extent that you’re able to do that in writing. That would be a good practice. And also, you know, show empathy and apologize. Some states do have apology laws that will protect expressions of sympathy or condolences from being used against you in a medical malpractice action. But, you know, one case for example, where the plaintiff claims that she learned about her mother’s death by a voicemail. You know, leaving a voicemail for someone letting them know that their loved one died is probably not the best way to relay that information. So, just you know, show empathy when possible.

Ensure Adequate Staffing 

Amy Yarbro: Ensure adequate staffing and maintain staffing ratios. This is a difficult issue particularly in the context of COVID-19 where people are required to quarantine for various reasons. The CDC has issued guidance on this issue as far as mitigating staffing shortages that, you know, you may already be familiar with. But some of the strategies that the CDC has recommended have included adjusting stats schedules, hiring additional staff, rotating staff positions, and canceling non-essential procedures and visits, just to name a few. The biggest thing is to have a plan in place so that if there is an issue with staffing, you have some sort of plan or policy that you’re ready to put into place.

Have an Auditable Timeline of Events

Amy Yarbro: And documentation. Again, this goes back to what I spoke about earlier. The timing of events is going to be key to the extent that you are able to document not only patients who are residents who report COVID symptoms. But also when they were tested, the results of testing, the number of tests and the facility, the number of positive tests, not only would residents, but as well as staffing. And to the extent that you’re able to maintain records regarding your efforts to acquire PPE. So, for example, in a lot of these cases, there are allegations that the facility failed to provide PPE. Well, the scene in March is very different than the scene today, in terms of getting the PPE. So, there may be some mitigating factors there if the facility was unable to provide PPE, was the guidance that required them to do so, and if there was guidance that required them to do so and they didn’t do it, what was the reason for that? Was it because they attempted to procure PPE or face masks or what have you but they were unable due to backorder issues or some other issue that was out of the facility’s control? To the extent that you have documentation showing your efforts to comply with CDC guidelines. That can go a long way in helping to mitigate some of the allegations that we’re seeing in these COVID-19 lawsuits.

Five Risk Management Best Practices

Raj Shah: That’s a lot of information to cover in a very short time on a very serious topic. So, thank you for all the insights and the information. Folks, I’m Raj Shah, I’m the CEO of CareSafely. And I’m going to shift the conversations around to additional risk management best practices. Five practices we think might be worth looking into from your organization’s point of view. The military has an old saying, something like the “Generals are always preparing for the last war instead of the next one.” In many cases, you all are the generals, and you have a really existing battle right now with COVID-19. In the midst of all of that, but at the same time, you’ve got to prepare for the next set of challenges that might be coming up. So, not only do you have to fight the current war, you’ve got to fight the next war, as well. And so, as you think about that, some of these practices might be of help. A quick word on CareSafely, in case y’all don’t know who you are. We built the first industry’s first risk management and compliance platform, software platform that enables you to manage all the different risks proactively. We’ll talk about that later. So, let me talk about the five big risk practices, risk management practices.

1. Foster a “Culture of Safety”

Raj Shah: The first one, and I’ve been in safety and compliance for over 20 plus years, and by far, the most important best practice is to foster a “culture safety”. What I mean by that is it’s a top-down approach to thinking about safety as a strategic priority on par with operations and finance. It’s everything from being a part of the mission, the core values of the organization, the C-suite executives actively supporting and investing in safety programs. When I say “safety” I’m talking about not just COVID-19 and infection control risks, but also the employee safety risks as well as patient safety and residents safety risks. Another aspect of that is of course that leadership is always constantly and consistently supporting all these safety processes on the floor itself. 

Safety is something that is discussed and displayed all over the organization, the community. If you were to go to, for example, a manufacturing facility, you’ll often times see, you know, days without injuries, you know, without a lost-time incident and things like that. All very publicly display, stand-up meetings every morning that talk about safety. Several companies I’ve worked with, literally do a safety moment at the beginning of any meeting they have, internal or external. They will spend just one or two minutes. It’s just giving a safety tip, or two could be at home, or it could be about work. But constantly keeping safety in the minds of all the employees. And ultimately this is about getting away from, you have to do, the check, the box for compliance reasons, but what we mean by “culture of safety” is what folks are doing when they’re not worried about the compliance. What are they doing when they’re not watching? That’s when, you know, you’ve got to build a culture of safety. I really believe that safety will become, and again, it’s a broad term of safety, but it’ll become one of the biggest top two, three priorities on the CEO’s agenda in the next coming few years. I’ll talk a little bit about some other industries that have faced the same issues that this industry has.

2. Take a 360-Degree View of Infection Control Risks

Raj Shah: The second big best practice for risk management is taking a much broader and more of a 360-degree view of all your infection control risks. Consider all the different factors that can happen and look at it from a systems approach rather than a functional silos approach because oftentimes where the biggest safety gaps and risk gaps are the interdependencies between different departments and functions. So, thinking about it from a comprehensive complex system, not just the functional areas, is really important. Re-calibrating on those factors, risk factors on a regular basis. In some of the discussions we had with some potential folks, they look at it and maybe every two to three years all of the risk factors. Things are moving so fast that I think at a minimum you want to do is, at least on a semi-annual basis, is assessing what are all the risk factors that are out there as well as whether it be COVID or just infection control in general or safety as the overall category. Also, I think one of the things to think about it is being more imaginative to avoid some of the “black-swan events”, like COVID-19. One could argue COVID-19 from a healthcare industry one of you, not just long-term care and senior living, but overall the whole healthcare industry, COVID-19 is not in many ways a “black-swan event”. People have known about this and it is a possibility. We’ve dealt with other crises like this with Ebola and other things over the last 10-15 years. So, the failure of imagination can also be a big issue when you are thinking about all the different risk factors. Bringing other stakeholders especially the frontline caregivers. Yes, the compliance and regulatory folks have incredibly an important role to play, but oftentimes the gaps are more identified early on at the front lines, rather than that be at mid-management or the corporate level. And finally just conducting these risk estimates much more frequently than might be, again, you need systems obviously to do some of these things, but much more frequently than they may have been done in the past. You got to put all this into perspective. Just think about for a second, infection control, actually specifically around COVID-19. Think about your current organization and how many risk factors are you managing for COVID-19 mode? Just mentally just think through that. Is it 10, 20, 30 different risk factors? Is it 50? Just kind of mentally think through that. Because we went through a similar exercise here in CareSafely when we built our COVID-19 risk assessment. We talked to the CDC, CMS, half a dozen public health departments, and then we put it in front of an industry panel. And we did that work and ended up being, there are 79 different COVID risk factors that one has to consider for a skilled nursing facility. It’s a little bit less in the mid-60s range for assisted living memory care and a little bit less for home health agencies. But there’s a lot of things to be thinking about across the organization.

3. Leverage Digital Workflows to Actively Manage Risk & Compliance

Raj Shah: Third and Amy mentioned this earlier is to leverage the digital workflow, much more to actively manage the risks and compliance. Safety first industries, like construction and oil and gas and airlines, etc. have been doing this for at least 15 or 20 years now. One interesting thing about that is when they do digital systems, of course, it just dramatically reduces the admin time. Most of the folks we talked to are typically doing most of the compliance work on paper, paper audits, paper checklists, paper everything. Then converting into spreadsheets, then sending it via email, then creating PowerPoint slides for the management team. And the time it takes to get through that can take days, weeks, even sometimes months to get all the information together plus all the risk related to transcription errors, things like that. So, the ability to bring all this together through digital workflow just makes it all up real-time experience where you can actually have a control center and monitor these things in real-time.

4. Be Audit-Ready 24/7

Raj Shah: Fourth is to be audit-ready 24/7. I spent about seven years working on safety and compliance in the food industry. About 10 years ago, if you all recall the E. Coli  and Salmonella in beef and cantaloupes and lettuce and things like that. It created a lot of concerns with consumers and the Congress passed the Food Safety Modernization Act which created a lot more enforceability actions with the FDA and USDA, including unannounced audits where they could just show up 24/7, any time they wanted to at the facility. And what that did for the industries, of course, they had to get ready, from a compliance point of view if the auditor showed up. But more importantly, it changed the behaviors because now you had to be ready 24/7. So, the vigilance level went up and the practices and the things that they did actually improve dramatically. So, in that industry, the food industry, on average and a typical year, these are terrible to hear but five to six hundred people may die. The majority of people just get sick from eating bad food. We’re in an industry where 68,000 people have died and according to the Washington Post, based on some research, working in a long-term care facility is now the most dangerous job in America. So, I believe if we don’t move forward into thinking about safety as a strategic priority, regulations and enforcement actions are going to come from the government, as well.

5. Validate Risk Behaviors “On-the-Floor”

Raj Shah: Finally the other best practice is just validating behaviors on the floor itself. Some of the research work we’ve done in the past says that if you expect someone to do a certain safety task, let’s say it’s hand hygiene or donning and doffing PPEs. If you just don’t provide training, just put them out of the floor and they learn from on-the-job training with someone else. It’s about 68%compliance. If you provide really good quality training, it gets up to 82% compliance, but if you provide three observations where you are observing that employee and documenting that observation providing coaching if they’re not done correctly, the compliance goes up to 94%. So, it’s a huge improvement from 68 to 94 percent. If you’re watching these behaviors on the floor and documenting them. And it makes sense, right? Because they know you’re committed, the organizations committed, you’re having a coaching conversation and you’re documenting everything in place, in case there is an issue whether it’s an HR issue or a legal issue. You’ve got everything documented. This is important, not just for the new hires to make sure they’re following your safety standard, equally important I think he’s also for your experienced staff. Because many times the experienced staff have learned to take shortcuts on safety things and then providing that training to the on-the-job training to the new employees, as well. So, you want to make sure you’re doing this not just for new hires, but across the board.

So, I hope that gives you guys a sort of a sense of some of the best practices from a risk management perspective. We could honestly spend an hour on each of these topics and go to a lot more details, but we wanted to get to your Q&A really quickly. So I’m going to just jump over to that section.


Raj Shah: I know Amy went through a lot of different case examples and things like that. So, one thing we have done is put together a list of the important links and we will just email you the Powerpoint, probably a Monday after the Thanksgiving holidays, but I will get you the documents. So, if you want to click on some of these articles and journal materials, you could go into a little bit more deeper dive into it.

Enablement Resource: CareSafely

Raj Shah: A small plug for CareSafely. We’d be happy to have, love to have a conversation with you all about if we can be of help to you from a compliance safety legal point of view in terms of managing your entire program. We think we’ve got a really interesting solution to help you manage all that.

Resource: Lessons from Safety-First Industries Webinar

Raj Shah: And finally, the last point I wanted to make was that we’re going to, this is our first of our series of webinars that we’re going to bring upon important topics facing the industry. Some of these topics are not just important, but frankly controversial, but we’re going to address them and talk about them, bringing in experts like Amy. So, the next one we’re going to have is on December 16, and we’re going to talk about how industries such as the airline industry, such as the construction industry, how they have put really good programs in safety-first industries and those lessons that they have placed, how can we apply them into the LTC and senior living industry. Just one or two quick facts and this is all pre-COVID data. So, we’re talking about 2018 data from the Bureau of Labor statistics. Working in an LTC facility is two times more dangerous than working in coal mining or in construction. Just think about that for a second. It’s twice as more dangerous for a worker to work in this industry than it is to work in a coal mine mining coal or building a house or building a factory. So, there are some really important things and challenges the industry needs to face and work through. And we’re going to start that discussion. We’re going to bring in several executives from the industry to talk about how they would apply some of these lessons into the world.

So, with that, we want to, I’m sure there are hundreds of you on the line right now, so we want to get your questions, and so we’ll switch over to Q&A.


Kate Wallace: Thank you so much, Raj. We are gonna jump right into Q&A. As you folks know, we said at the beginning there’s a Q&A button at the bottom of your screen. So, if you want to send in questions, I’m going to try and run through them, but keeping time in mind, as well. The first question is for Amy. Our question is: “We own a property in Florida. We have quarantine restrictions for residents returning from outside of the community. Some local operators have no restrictions. We believe there is an ethical question as well as a legal liability for not imposing controls to assure returning residents do not bring COVID back to our staff or other residents.” Amy.

Amy Yarbro: Thanks, Kate. Yes, it’s an excellent point and an excellent question. So, the CDC actually just last week, actually the CMS issued guidance for the holidays that I think may be helpful for you and for other facilities in that situation. This guidance is that you need to encourage residents not to leave the facility. However, CMS recognizes that this puts the facility in a tough spot because how do you balance the residents’ right to leave the facility with the need to protect the health and safety of other residents and staff at the facility. So, the CMS guidance indicates that for residents that do leave, you should provide CMS recommendations to them. And upon their return employ screening procedures. So, take their temperature. And if they have symptoms, test them. Consider placing the resident on transmission-based precautions and a number of other things. So, this was something that was just issued last week and I’d recommend that you review that in order to address those sorts of situations.

Kate Wallace: Thanks, Amy. The next question we have is for Raj. “What are some ways to convince C-level executives on the importance of building a safety culture?”

Raj Shah: Well, I think it’s the right thing to do. First of all, it’s as simple as that, but there are a lot of hard and soft reasons for it, I suppose. The hard reasons, of course, are that you can improve safety, you know, litigations is one aspect of it that needs to be covered but workers comp claims, insurance claims. There is a lot of hard data around all the costs related to safety incidents whether it be with patients or with employees. A lot of these safety issues are frankly fixable. There is no need to know the reason why over half of the injuries for employees, for example, are related to back issues. There are systems in place that other industries have used for decades to improve that. Overall numbers, something like all industries in the US since they started doing status 50 years ago have improved safety by 70 percent over the last 50 years, since they started keeping records. This industry has not done that. The importance of safety is now a strategic imperative and that’s what I think the conversation needs to have, both on the ROI and our number side, but also on the soft side of, it’s just the right thing to do.

Kate Wallace: Amy, the next one is for you. This is a question about the False Claims Act. “With COVID-19, there will be many False Claims Act suits filed by your relators and the DOJ once the state Governor’s Good Samaritan Executive Orders to cover institutions and healthcare workers expires.” This person taught a class on this and they’re hoping to learn a little bit more.

Amy Yarbro: I don’t know how much more I can tell this person who taught a class on this issue, but, you know, with respect to the False Claims Act, as you mentioned, and as I mentioned earlier, the Department of Justice has indicated they are intending to use that to ensure that money’s provided for COVID Relief were not for procured as the result of fraud. I’ll also say, one development at least that we had here in Massachusetts, at least for the federal court in Massachusetts, there was a case in which they found that the peer review privilege does not apply in the False Claims Act. That’s kind of a big deal. You may or may not be familiar with the peer review privilege, but that is a privilege that protects information like quality assurance documents, other internal documents, and certain incident reports. Things of that nature are usually protected from discovery in malpractice cases. And the reason for that is so that positions and health care providers feel comfortable to speak openly about negative outcomes without the fear of that being used against them in a malpractice action. And so if they’re able to speak openly then the facility can work towards improving in order to avoid those sorts of negative outcomes. In a False Claims Act, unlike a malpractice case, you’re not dealing with an allegation directly related to patient care. And in this particular case in Massachusetts, the claim was that a hospital was billing medicare for surgical procedures that were not performed by a physician and instead were being performed by residents who are not supervised by the physician. And that fell under the False Claims Act because the hospital was building medicare which is a government funding source for services not provided. So, that was the alleged fraud and in that case, the plaintiff sought quality assurance documents, things that are normally protected as confidential or privileged. And the Court held that though the peer review privilege did not apply. So, in the COVID context, to the extent, we see false claims actions, False Claims Act actions filed, I think that that’s a real concern for health care providers.

Kate Wallace: Thanks, Amy. I’m just taking a look at the time right now. We have a bunch of questions coming in. We are going to take about three or four more. This one’s going to be for Raj. “How much does CareSafely cost?” And actually, we have a follow-up one. “What’s involved then with rolling it out?”

Raj Shah: Rolling out where the whole software platform is web-based. So, as long as you have Wi-Fi access in your facility, rolling out takes about two to three weeks, depending on, we have a phased process of rolling it out. First, we roll it out to the manager and director so they can do the assessments. The quick background here. So, it’s pre-built assessments that one can take around COVID, patient safety, employee safety. Very long, but very important to do and they are done by the managers and director levels. And then a whole set of audits, and checklists, and things like that, all digitally done that typically the staff members themselves would do. So, typically week one would be for the management to use it for assessments and action plans. And then in week two, we roll it out to the staff members for COVID checks, PPE inventory checks, staff observation checks, things like that. On pricing, it’s 190 dollars per facility per month, plus three dollars per employee per month. So, that’s our pricing for this, basically a cup of coffee per employee.

Kate Wallace: Thanks, Raj. Amy, “Do you foresee any lawsuits from families regarding communities violating resident rights by refusing visits or the ability to leave facilities?”

Amy Yarbro: It’s an excellent question. Potentially yes, but then you have obviously the mitigating factors of the orders that have been put in place and the guidance that has been put in place by restricting visitors. One interesting thing to note too is that the Department of Justice in August actually requested data from governors who issued COVID-19 orders that may have resulted in the deaths of elderly nursing home patients. This was in four different states. So, in those States and including New York, in those States, the governors issued orders that require nursing homes to accept patients regardless of whether or not they had a COVID-19 diagnosis. And also did not require patients to be tested before being admitted to nursing homes. So, you know, especially early on, when all of this was evolving, there were so many different things happening with patients being admitted to these facilities with COVID, with visitors, you know, at first being permitted and not being permitted access. I think you’re right. I can see potential lawsuits related to residents’ rights, but I don’t, you know, the success of those lawsuits, I’m not sure how far they would get given the restrictions that were in play.

Kate Wallace:  Thanks, Amy. And one more for Raj. “With the new Biden administration, how will the regulatory compliance picture change do you think?”

Raj Shah: Well, I’m not a lobbyist or legislative person or political person, but I think what’ll happen, the best analogy I can give you is the food industry where, as I described earlier. When you have this kind of impact on the consumers, they will be likely to take action. And I’d expect the Biden administration to be a little bit more regulatory friendly or open than the previous administration may have been. So, there’s more than likely and this is actually not a political issue. We’re talking about taking care of the most vulnerable populations, right? And so you have to provide the protections and yes, it was a “black-swan event” in some cases. But in other cases, we probably should’ve done a better job, right? So, I think the government is going to be a little bit more stronger about this. If food safety was, you know, what happened back then, I think if that happens here, we’re talking over two, three, four year period just much more stronger regulatory environment. But again, I’m not making any projections. I’m just saying we’ll have to see what happens.

Kate Wallace:  Thanks, Raj. And one last question for Amy. We have a few people that have actually asked for more information on the various lawsuits that you spoke about earlier. Would you be willing to share your email address so they could reach out to you?

Amy Yarbro: Oh sure. Yeah, I’d be happy to.

Kate Wallace: Thanks so much, and for all the questions that we didn’t get a chance to get to answer, please feel free to email Raj or myself or Amy and we’ll definitely follow up.

That’s all the time we have for today. On behalf of CareSafely, Amy, and Raj, we want to thank you for joining us and more importantly for the hard work you do every day to keep residents and employees safe at your facilities. As soon as the webinar ends, you will see a survey that will take less than a minute to fill out. We’d really appreciate your feedback on the content and topics we have covered. And we hope everyone has a really Happy Thanksgiving and stay safe and healthy, and hopefully, you can join us next time. Thanks so much.

Raj Shah: Take care, folks. Bye.

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About CareSafely
CareSafely enables senior living and long-term care providers to strengthen their Quality, Safety, and Compliance (QSC) programs. Purpose-built for senior care, the CareSafely software and content platform ensures that all QSC activities like risk assessments, corrective actions, staff competencies, and audits are proactively managed with 50% less effort.

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