Bacon's Rebellion

Democracy Thrives in Sunlight

Death Comes to Virginia’s Nursing Homes

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by

James A. Bacon
in

by Kerry Dougherty

Imagine for a moment that your grandmother is in a Virginia nursing home. You haven’t seen her since late February or early March when visitation was terminated due to concerns about the coronavirus.

Perhaps your grandmother has some dementia, making it impossible to chat on the phone to ask how she’s doing.

Worse, you’ve heard that at last count there have been 150 outbreaks of COVID-19 in nursing homes around Virginia. You’re now terrified that your grandmother is in peril.

That fear is real.

As of Thursday, 452 of the 769 coronavirus deaths in Virginia have been connected to long-term care facilities. That’s a staggering 59 percent of all fatalities.

Those were frail people who died alone and behind locked doors while their families begged for information.

I know what you’re thinking. Surely those with loved ones in nursing homes can go to the Virginia Department of Health’s special COVID-19 webpage and find out which long-term care facilities are experiencing coronavirus outbreaks.

No, they can’t.

The Northam administration interprets Virginia law to mean that nursing homes are entitled to the same level of privacy given to individuals.

It’s an outrageous and dangerous position. Indefensible.

As a result, there is no way to know which long-term care facilities are losing residents to the virus and which have so far escaped it. No infection rates. No body count. No accountability.

This is not a partisan issue. Republican and Democratic lawmakers alike have asked the governor to fix this. There have been suggestions that emergency legislation could be passed during a special session to address the ambiguous language in the state code.

Yet the governor seems indifferent to the issue. Here, see for yourself:

What’s the next question?

I have the next question for you, Governor. Once you saw what happened at the Life Care Center outside of Seattle in February, where 125 people became infected and 45 residents died, what measures did you take to protect Virginia’s helpless nursing home population from a similar fate?

Here’s another:  Did you ask your health department chief to pull the inspection records on nursing homes to ensure that substandard, publicly funded facilities had the tools to cope with coronavirus outbreaks once they began?

Oh, and one more: Did it ever occur to anyone in your administration that with nursing homes locked down the commonwealth had an absolute duty to keep the public informed about what was happening to the most vulnerable members of society?

I didn’t think so.

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21 responses to “Death Comes to Virginia’s Nursing Homes”

  1. SGillispie Avatar
    SGillispie

    Excellent exposure of a wrong and indefensible position. This is a BLOG at its best.

  2. Ben Slone Avatar
    Ben Slone

    @Kerry Dougherty How many of the 317 other deaths are from DoC facilities, including inmates and workers?

    1. warrenhollowbooks Avatar
      warrenhollowbooks

      “How many of the 317 other deaths are from DoC facilities, including inmates and workers?”

      Last figures I saw was . . . two.
      Which means your a lot safer in a jail in Virginia than a nursing home.
      Not that is stopping them from dumping as many of the felons as they can on the streets.

    2. Dick Hall-Sizemore Avatar
      Dick Hall-Sizemore

      There have been only 3 inmate deaths in DOC facilities related to COVID-19. About 65-70 DOC staff have tested positive. I have not heard of any deaths of DOC staff related to COVID-19.

  3. Peter Galuszka Avatar
    Peter Galuszka

    No, this is not a BLOG at its best.. It seems to leave out extremely pertinent information about a family members’ rights to be told what is going on in a hospital or nursing home through HIPAA. (The latter in from the HHS website).
    For five years, my late mother was in a continuum of care facility in the Richmond area. It involved independent living, a memory unit and an acute care facility. Among other things, Mom had Alzheimer’s. I had power of attorney and she had signed papers giving my sister and me the right to be told information about her condition. I can’t remember a time when there was a serious problem. There may have been minor delays. But we always were told.
    This is the part Dougherty seems to be leaving out. It may be true that IN GENERAL that health care facilities such as nursing homes are not providing aggregate (not personal) information and I agree that that is wrong. But her example of not knowing what someone’s grandmother is doing for months just doesn’t ring true. If someone is properly designated under HIPAA rules,and they are denied information, they could seek a legal recourse.

    Here’s the quote from the website:

    Under HIPAA, when can a family member of an individual access the individual’s PHI from a health care provider or health plan?

    This guidance remains in effect only to the extent that it is consistent with the court’s order in Ciox Health, LLC v. Azar, No. 18-cv-0040 (D.D.C. January 23, 2020), which may be found at https://ecf.dcd.uscourts.gov/cgi-bin/show_public_doc?2018cv0040-51. More information about the order is available at https://www.hhs.gov/hipaa/court-order-right-of-access/index.html. Any provision within this guidance that has been vacated by the Ciox Health decision is rescinded.

    The HIPAA Privacy Rule provides individuals with the right to access their medical and other health records from their health care providers and health plans, upon request. The Privacy Rule generally also gives the right to access the individual’s health records to a personal representative of the individual. Under the Rule, an individual’s personal representative is someone authorized under State or other applicable law to act on behalf of the individual in making health care related decisions. With respect to deceased individuals, the individual’s personal representative is an executor, administrator, or other person who has authority under State or other law to act on behalf of the deceased individual or the individual’s estate. Thus, whether a family member or other person is a personal representative of the individual, and therefore has a right to access the individual’s PHI under the Privacy Rule, generally depends on whether that person has authority under State law to act on behalf of the individual. See 45 CFR 164.502(g) and 45 CFR 164.524.

    In cases where a family member may not have the requisite authority to be a personal representative, an individual still has the ability, under the HIPAA right of access, to direct a covered entity to transmit a copy of the individual’s PHI to the family member, and the covered entity must comply with the request, except in limited circumstances. The individual’s request must be in writing, signed by the individual, and clearly identify the designated person and where to send the PHI. See 45 CFR 164.524(c)(3)(ii).

    Outside of the HIPAA right of access, other provisions in the Privacy Rule address disclosures to family members. Specifically, a covered entity is permitted to share information with a family member or other person involved in an individual’s care or payment for care as long as the individual does not object. In cases where the individual is incapacitated, a covered entity may share the individual’s information with the family member or other person if the covered entity determines, based on professional judgment, that the disclosure is in the best interest of the individual. If the individual is deceased, a covered entity may make the disclosure unless doing so is inconsistent with any prior expressed preference of the individual. These disclosures are generally limited to the health information that is relevant to the person’s involvement in the individual’s care or payment for care. See 45 CFR 164.510(b).

    Finally, a covered entity also is permitted to disclose the health information about an individual to any person, including a family member, if the individual provides a prior written authorization for the disclosure. See 45 CFR 164.508.

    1. Nancy_Naive Avatar
      Nancy_Naive

      Hmmm, I dunno… seems like a lot of trouble to do a little research before shooting off at the pie hole.

    2. John Butcher Avatar
      John Butcher

      So, you have the right to know whether Granny is infected but not to know whether she’s living in a hell-hole where she’s almost certain to be infected.

    3. djrippert Avatar
      djrippert

      Damn Maryland! Breaking the law again. Publishing COVID19 statistics by nursing home in some detail on their web site. Must be that evil Republican governor.

      https://coronavirus.maryland.gov/pages/hcf-resources

      C’mon Peter. Nothing other than a pocket full of campaign money keeps Virginia from publishing the same statistics as Maryland publishes.

      1. LarrytheG Avatar
        LarrytheG

        Kudos to Hogan/Md… Virginia should do this also.

  4. TBill Avatar
    TBill

    I have also been complaining here on these pages about the secrecy.

    This morning I am in receipt of more granular zipcode data for NoVa area. I do not know where the data came from yet. My zip is missing (not on the “Top20” list). However, close by zips are indeed on there.

  5. warrenhollowbooks Avatar
    warrenhollowbooks

    Basically it boils down to this, since there is a CRISIS (!!!), the state can order you to wear a mask, to not work, to not travel, to close your business, to not go to church . . . but reveal the most non-specific HIPAA information and it’s “Whooooooa, let’s not get carried away here!”

  6. djrippert Avatar
    djrippert

    “The Northam administration interprets Virginia law to mean that nursing homes are entitled to the same level of privacy given to individuals.”

    Where are the liberals who (rightly) howled about the Citizens United decision where corporations were treated as people?

    Nursing homes aren’t people and saying that there have been XX cases of COVID19 in a particular nursing home does not expose private medical information about any person. It does protect the campaign contribution giving health care industry though.

  7. djrippert Avatar
    djrippert

    People wonder why I rail on Virginia’s plantation elite and their imperious attitudes toward ordinary citizens. Northam’s “Next question” is exactly why.

    BTW – While I can see why the empty suit we call a governor wore his face mask like an ascot why did he permit the deaf language signer to work without a mask?

  8. djrippert Avatar
    djrippert

    Please help me under stand this in context of Northam’s comments ….

    https://www.aarp.org/caregiving/health/info-2020/nursing-homes-to-publicly-disclose-coronavirus.html

    “As soon as even one case of COVID-19 is confirmed at a nursing home, the facility will have to alert its residents and their families or representatives within 12 hours, the Centers for Medicare and Medicaid Services (CMS) announced late Sunday. The information will also have to be reported to the Centers for Disease Control and Prevention (CDC) and be made public.”

    1. Peter Galuszka Avatar
      Peter Galuszka

      Ok Ripper. Agree hogan’s got a better idea. Also winder what the role if the insurance industry is. It is not in their business interest to hide data that can rip them apart in a later lawsuit

      1. djrippert Avatar
        djrippert

        You’re on the right track now. This isn’t about HIPAA or privacy. Follow the money. Insurance companies, physicans’ groups, the nursing home operators – a lot of well heeled interests don’t want this information made public. And Virginia isn’t alone. Texas seems to be committed to the hallucination that nursing homes are people.

        Special interests own American politics at every level and in regard to both parties. Lots of double talk. Republican politicians hate illegal immigration but just can’t find the gumption to implement an immigration status verification system for employers. Dems claim to hate the Citizens United ruling but are in no hurry to put through a constitutional amendment that would effectively nullify that ruling.

        Not sure how Maryland beat back the corporate barbarians at the gate on this one. Limiting campaign contributions has to help. But Texas has limits too so no guarantees I guess.

        In the present case Northam seems to be suffering more from intransigence than incompetence. Now … why the intransigence. He knows the public has a right to see this information at the aggregate level and, I assume, he has fairly easy access to the data. He and most of the General Assembly just don’t want to publish the facts.

  9. LarrytheG Avatar
    LarrytheG

    Apparently it works this way for Grocery stores also?

    1. djrippert Avatar
      djrippert

      Grocery store employees haven’t been 59% of Virginia’s COVID19 deaths but you may be onto something. Maybe COVID19 contact status needs to be publicly available for all businesses which want to reopen. If six people who tested positive for COVID19 were in a particular sports bar during their infectious period and that was recent I wouldn’t go into that bar until all employees had been tested and found negative. Or until the bar went two weeks with no new COVID19 positives.

      People use the app FourSquare to “check in” to various places they visit. Make that (or something like that) mandatory for people who want to enter restaurants and bars. If you don’t have a cell phone the business needs to copy your driver’s and record the date and time you entered for subsequent entry into the state’s tracking system. If you turn up sick the business is notified and their “positive customer count over the past 15 days” goes up by one. They also have to update a sign they keep in the window.

      The right way to reopen is by letting people make informed decisions about the risks they are taking (or might be taking).

  10. Peter Galuszka Avatar
    Peter Galuszka

    John butcher. That seems to be about the size of it

  11. Peter Galuszka Avatar
    Peter Galuszka

    And Ripper. You are right

  12. Reed Fawell 3rd Avatar
    Reed Fawell 3rd

    ” 4,813 residents with confirmed or presumed cases of COVID-19 have died at 351 of New York’s 613 nursing homes since March 1,” says Time Mag. on May 5.

    “Records kept by medical examiners in Florida offer a window into how the coronavirus has killed more than 1,600 people there. Many died at home.” blares New York times today, trying to out shout N. York’s horrible record of protecting its elderly in nursing homes, despite Gov. Cuomo’s fierce defense of his own mother on TV day after day.

    Meanwhile:

    In contrast, Florida has nearly 73,000 in nursing homes and 1600 deaths, while New York state some 101,000 residents in nursing homes with nearly 5000 deaths.

    No wonder Cuomo kept two ventilators in his basement at home in New York, and didn’t keep his mom in a New York nursing home, while he sent coved 19 patients there.

    Translation- leadership and caring makes huge difference in lives of our elders.

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