Rosalie D’Orsaneo will never forget the day her 100-year-old mother’s frail body was removed from a Wheatfield nursing home as more and more residents were dying across the state from Covid-19.
D’Orsaneo’s mother did not have the virus, but she considers her mom a pandemic fatality because of the way nursing homes were impacted as the virus spread.
The 200-bed Buffalo Center for Rehabilitation and Nursing, which has an overall one-star rating, has had 18 residents die of Covid-19 in the facility.
That is why she is applauding the State Legislature’s approval of a bill that calls for the repeal of special legal protection from civil and criminal proceedings to health care facilities and health professionals. The measure had been adopted a year ago in response to Covid-19 and its impact on health care.
Advocates of nursing home residents have been criticizing the legal immunity for months, claiming it has made facilities and those who work and operate them unaccountable for their actions.
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The repeal bill was adopted Wednesday by the Senate and Assembly, but when it will go to Gov. Andrew M. Cuomo for his consideration is unknown. The bill also could end up becoming part of state budget talks that may or may not conclude by the start of the new fiscal year on Thursday.
The Senate version of the bill cited several reasons for the need to repeal the legal protection:
“In particular, Article 30-D egregiously uses severe liability standards as a means to insulate health care facilities and specifically, administrators and executives of such facilities, from any civil or criminal liability for negligence.”
As a result of the findings, Attorney General Letitia James said her office is currently investigating more than 20 nursing homes “whose reported conduct during the first wave of the pandemic presented particular concern.”
The bill cited State Attorney General Letitia James’ investigative nursing home report from earlier this year that questioned whether the legal protections worsened care at the facilities:
“…Article 30-D may have provided nursing homes with ‘financial incentives to put residents at risk of harm by refraining from investing public funds to obtain sufficient staffing to meet residents' care needs, to purchase sufficient PPE for staff, and to provide effective training to staff to comply with infection control protocols during pandemics and other public health emergencies.’ "
Repeal of the legal protection, according to the bill, would provide greater accountability “to stop more preventable deaths from happening.”
It is now estimated that some 15,000 nursing home residents died from the virus in New York State. James, in her January report, said the state Health Department had undercounted deaths by not including virus-infected residents transferred to hospitals and other health facilities where they died.
Families are upset that they still aren't allowed to have contact visits with relatives in nursing homes.
State Sen. Sean Ryan, a Buffalo Democrat who voted for the bill, said the pandemic exposed the need to reform how nursing homes operate.
“ This legislation will add that necessary level of accountability and transparency to ensure the safety of all residents and staff,” Ryan said.
The official cause of Theresa Martorana’s death was “natural causes,” but D’Orsaneo said she believes the impact of Covid-19 on the nursing home reduced her quality of life.
“She went into the hospital last March for stomach pains and once they stabilized her, she was sent to the nursing home for rehabilitation,” the daughter said.
A few days after arriving at Northgate Health Care Facility, Martorana fell out of her bed in the middle of the night, gashed her head and had to be taken back to the hospital for stitches, according to D’Orsaneo.
"I want to know how long will it be before he lets us in," said Michelle Layer, whose 91-year-old father lives at Harris Hill Nursing Facility. "I have had both of my Covid vaccination shots and I should be allowed in as a caretaker.”
Dawn M. Harsch, a spokeswoman for Northgate, issued a statement defending the facility.
“As with any loss, we mourn the passing of each resident, especially during the Covid-19 pandemic," the statement read. "Since March of 2020, our team has faced unprecedented hurdles to which they have responded with ingenuity, determination and selflessness.
“For more than a year, we have worked hand-in-hand with the Department of Health to incorporate aggressive infection control measures, screening practices, PPE use, vaccination administration and advanced cleaning protocols.
“As such, Northgate has received nine deficiency-free infection control surveys from the Department of Health and continues to integrate new educational components as they evolve.”
Mary Brennan Taylor, a patient advocate, said the repeal bill represents a step in the direction of “common sense,” but more legislation is needed to protect those who are among society’s most vulnerable.
Adrienne K. Johnson, 60, a full-time cook at Williamsville Suburban and part-time kitchen worker at Terrace View Long Term Care, died Dec. 20, four days after testing positive for Covid-19.
“There should have never been a time when nursing home administrators and executives were given a pass,” said Brennan Taylor, who lectures on patient safety to University at Buffalo medical students and has worked with federal officials to improve overall safety in the delivery of health care.
Defending the legal protections adopted a year ago, Michael Balboni, who heads a statewide trade group that represents hospitals and nursing homes, said the action was necessary because medical professionals were performing duties outside the scope of their regular tasks.
“The legislation recognized that the pandemic was going to require extraordinary efforts on behalf of health care professions,” said Balboni, executive director of the Greater New York Health Care Facilities Association. “The protection from liabilities were essential in incentivizing these individuals to work. Without them, we, as a society, would never have been able to respond.”
Balboni said that if a third wave of the pandemic does not hit the state, it would be acceptable “to return to general rules of liability.”