Senior citizen woman in wheelchair in a nursing home.

COVID-19 and Nursing Homes: The New York State Experience

By James W. Lytle 

While New York State has generally earned high marks for its response to the COVID-19 pandemic, nagging questions continue over whether more might have been done to protect patients in nursing homes and other congregate settings — and whether some of the state’s policies even may have made matters worse.

Lessons from the New York State experience may prove helpful to those regions that have displaced New York as the epicenter of the American pandemic, and may help ensure that adequate steps are taken to protect the most frail and vulnerable among us from any resurgence of COVID-19 or from some future disease.

Although New York was among the hardest hit states, with the highest number of deaths thus far (over 32,000, more than twice as many as California), the aggressive steps taken by Governor Andrew Cuomo and his administration have been widely credited with reducing the spread of the disease in the State.

But a key, sustained criticism of the Governor’s handling of the pandemic focuses on the state’s nursing homes.

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Busy Nurse's Station In Modern Hospital

Finetuning Liability Protections in the COVID-19 Emergency

By James W. Lytle 

When the scope of the COVID-19 pandemic became apparent, legal commentators, physician organizations, and health care policymakers sounded the alarm over the potential civil and criminal liabilities that practitioners and facilities might face during the emergency.

In short order, the federal government and many states enacted liability limitations.  At least two states—Maryland and Virginia—had pre-existing legislation that was triggered by the emergency, while many other states enacted or are considering new legislation to limit liability during the crisis.

While the source (executive or legislative), scope (civil or criminal), and precise terms of these liability protections varied by jurisdiction, the speed with which they were enacted was remarkable, given the intensely contentious political battles that typically ensue over medical malpractice and civil justice reform.

Predictably, at least one state has already begun to tinker and fine-tune its liability limitations. Just three months and twenty-one days after liability protections were enacted, the New York State legislature sent a bill to Governor Andrew Cuomo that curbs those protectionsThe Governor signed the bill into law on August 3rd.

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Ebola Quarantines: Remembering Less Restrictive Alternatives

By Wendy Parmet

The heartfelt letter issued by Kaci Hickox, the nurse being held in quarantine in a New Jersey hospital, calls into question the surprising decision by Governors Christie and Cuomo to quarantine health care workers returning from West Africa. It also shines a spotlight on the all-important, but largely unexplored, question of how the less restrictive “alternative test” applies to quarantine. In her letter, Hickox describes being treated in a shockingly harsh and unsupported manner, being kept for hours in isolation at Newark International Airport, and then in a tent outside of University Hospital in Newark, given only a granola bar to eat. Even after she tested negative for Ebola, and her purported fever had vanished, she remains confined in the hospital. How, she asks, will returning health care workers be treated when they return from Africa?  “Will they be made to feel like criminals and prisoners?”

Hickox’s question points to the critical flaw in the decision by Governor’s Cuomo and Christie to quarantine asymptomatic health care workers returning from Africa. By using the “big gun” of quarantine, the most restrictive public health law we have, rather than a less restrictive approach, the Governors seek to show an anxious public that they’re being tough on Ebola. No doubt this is a politically popular stance. But, as many public health experts have noted, the Governors’ approach can only impede efforts to convince health care workers to go to Africa, where they are desperately needed if the world is to be freed of Ebola. The quarantines may also discourage US-based health care workers and first responders from caring for those who are stricken stateside. If 21 days of confinement in a hospital is demanded for those who care for patients in Liberia, why won’t the same approach be used here? And if so, who will answer the 911 call?

The dangers posed by the Governors’ draconian approach demonstrate the public health importance of the basic constitutional principles that guide the law of quarantine: while governments have the right, if not the duty, to impose quarantine in appropriate circumstances to protect the public’s health, individuals can only be detained when doing is the least restrictive alternative. Exactly what that means has not been fully explored by the courts, in part because quarantine cases are relatively rare. Most modern cases concern patients with tuberculosis. These cases, including ones from New York and New Jersey (e.g., City of New York v. Doe, 205 A.D.2d 469, 614 N.Y.S.2d 8 (N.Y. App. Div., 1 Dept. 1994); City of Newark v. J.S., 652 A.2d 265 (N.J. Super. Ct. Law Div. 1993)), suggest that detention is permissible, but only upon a showing that the patient has been non-complaint with less restrictive approaches (such as directly observed therapy). Courts have also made clear that prisons are not appropriate placements for patients, and that decisions must be based on the best medical and public health evidence. And although courts have not explored these issues, it seems clear that states must provide care and support for those are unable to care for themselves due to public health orders. People who are quarantined are serving the public. We need to treat them accordingly.

In the face of Ebola, fealty to the least restrictive means principle as well as sound public health policy requires that policymakers proceed with a far more nuanced approach than we have seen from the Governors of New York and New Jersey. Without question, public health controls are appropriate, indeed necessary, in response to this awful disease. In Dallas, health officials required health care workers to sign documents agreeing to self-monitor and avoid public transportation. Because Ebola cannot be spread before someone becomes ill, even the latter may be excessive. But these measures were far less restrictive and more tailored than those now being employed in New Jersey and New York. Indeed, a wide range of measures lie between the neglect the public fears, and the over-reaction that the Governors have instituted. Both public health and the Constitution demand we explore them.

The Ebola “Czar”

By David Orentlicher
[Cross-posted at Health Law Profs and PrawfsBlawg.]

In the wake of Craig Spencer’s decision to go bowling in Brooklyn, governors of three major states—Illinois, New Jersey, and New York—have imposed new Ebola quarantine rules that are inconsistent with national public health policy, are not likely to protect Americans from Ebola, and may compromise the response to Ebola in Africa, as health care providers may find it too burdensome to volunteer where they are needed overseas. Don’t we have an Ebola czar who is supposed to ensure that our country has a coherent and coordinated response to the threat from Ebola?

Of course, the term “czar” was poorly chosen precisely because Ron Klain does not have the powers of a czar. He will oversee the federal response to Ebola, but he cannot control the Ebola policies of each state. Unfortunately, on an issue that demands a clear national policy that reflects medical understanding, public anxieties will give us something much less desirable.