The Tragic Situation in Nursing Homes and COVID-19 Whistleblower Protections
Coronavirus is ripping through nursing homes and decimating its vulnerable residents. The government and nursing homes themselves have restricted outside visitors for fear of infection spread. These restrictions mean there is no longer any threat from the outside to nursing homes who put their financial interests ahead of their residents. Nursing home employees are some of the few witnesses to the neglect and mistreatment of residents. This article reviews the current situation in nursing homes and COVID-19 whistleblower protections for nursing home staff who speak out.
Resident and Staff Deaths in California Nursing Homes
Skilled nursing facility deaths in California more than doubled in May 2020. As of June 16, 2,176 residents and 85 health care workers died in California from COVID-19.
Lack of Oversight While Vulnerable Residents are Cut Off from Advocates
With a few exceptions, family and friends can no longer make in-person visits to nursing home residents. Family and friends not only provide emotional, mental, and physical support, they also scrutinize resident care.
On March 16, long-term care ombudsmen were instructed to stop entering nursing homes. Ombudsmen advocate for residents and file complaints against nursing homes.
On March 23, the federal government told state inspectors to stop in-depth annual inspections. In-depth inspections involve multiple inspectors spending days inspecting facilities and interviewing residents, family, and staff. The inspections since March 23 are “infection control visits” that focus on handwashing, personal protective equipment, and isolation programs that separate residents who are COVID-19 positive. Even though 95% of California facilities have been inspected since March 1, the inspections are much less rigorous and have often not led to enforcement.
Many nursing homes pay low wages and struggle to retain employees. Several nursing homes are taking advantage of a California state waiver to exempt them from staffing requirements. Thus they are operating understaffed.
Our most vulnerable elderly population at risk and also has less social interaction. Aside from fewer visitors, many facilities have ceased activity programs and communal dining. Consequently, there is an increase in social isolation and loneliness. Many residents have suffered psychologically and with a decline in cognitive function.
At the onset of the pandemic and often still today, there is insufficient personal protective equipment for staff. In addition, there is inadequate testing. On May 11, California sent a letter to skilled nursing facilities outlining mitigation plan implementation and submission requirements. Unfortunately, even though the state and LA County assured it, there is still not 100% testing.
Health Care Worker Dangers
In May 2020, COVID-19 cases among health care workers in nursing homes more than doubled and COVID-19-related deaths quadrupled. Contributing to this problem is the fact that social distancing in nursing homes is nearly impossible. How can a health care worker socially distance when assisting with bathing, clothing, and feeding residents?
In addition, many staff work in multiple facilities for financial necessity reasons.
California COVID-19 Whistleblower Protections for Nursing Home Employees
Nursing home certified nursing assistants, nurses, and other employees see negligent acts. These employees can report these acts to appropriate regulators, media, or the public. However, to do so the employees would be putting their jobs at risk. Many of these employees are bound in tough situations. On one hand they care for the well-being of the residents. On the other hand, they cannot jeopardize their jobs. Many nursing home employees are paid at or just above minimum wage and are living from paycheck to paycheck. They cannot lose their jobs without potentially losing their homes, apartments, child care, or potentially going hungry.
The good news is that California law already contains safeguards which cover COVID-19 whistleblower protections. These safeguards protect such employees and minimize their personal risks in reporting dangerous and illegal situations.
California Health & Safety Code
One of the strongest protections is found in the California Health & Safety Code. In July 2019, California’s governor Gavin Newsom signed Senate Bill 233. This statute amended the Health & Safety Code to add section 1278.5. In passing the bill, California determined “that it is the public policy of the State of California to encourage patients, nurses, members of the medical staff, and other health care workers to notify government entities of suspected unsafe patient care and conditions.” It passed the bill to encourage “reporting in order to protect patients and in order to assist those accreditation and government entities charged with ensuring that health care is safe.”
The bill specifically prohibits a health care facility from discriminating or retaliating against an employee for making a report to any regulatory agency. It also prohibits discrimination or retaliation for participating in an investigation. Any employer who does so is subject to a criminal misdemeanor. The employee against whom the health care facility retaliated can also file a lawsuit. In this lawsuit, s/he can seek reinstatement, reimbursement for lost wages, a civil penalty, work benefits, and other compensatory damages. S/he can also seek the legal costs associated with pursuing the case.
California Labor Code
Nursing home employees in California also have the protection of the California Labor Code. Labor Code section 1102.5 is a general whistleblower statute which forbids all types of employers from retaliating against an employee who discloses any violation of state or federal statute or regulation to certain government or the company’s HR department, among others. Between these two statutes, nursing home employees have significant avenues to protect themselves against employers who retaliate against them for taking steps to keep their residents safe.
The situation in nursing homes does not appear to be improving. In fact, the number of deaths is rising. Hopefully attention to this issue will drive increased scrutiny and safeguards.
About the Law Offices of Scott Glovsky
The Law Offices of Scott Glovsky has represented injured consumers and victims of wrongful business practices for more than the past two decades. The firm focuses on health insurance bad faith, catastrophic personal injury, sexual abuse and consumer-related litigation. We get justice for our clients and hold the wrongdoers accountable.
If you have loved ones in nursing homes who have been mistreated, contact us and we can help.