August 5, 2020, Crain’s Health Pulse
Cuomo signs bill to roll back medical liability protections
Governor Andrew Cuomo signed a bill that would reverse some of the medical liability protections provided to doctors, hospitals and nursing homes during the pandemic.
The bill was opposed by lobbying groups representing the health care industry as potentially adding to medical malpractice costs after workers risked their own health to treat Covid-19 patients.
The law, which will be applied prospectively, reduces the level of legal immunity for doctors treating non–Covid-19 patients whose care is affected by the pandemic.
Hospitals and doctors had sought that cover as they were asked to take dramatic steps to respond to the pandemic, such as converting non-clinical spaces into treatment areas and asking doctors and nurses to work outside their specialty areas.
“We pray that such a drastic situation will not come again, but if it does, many physicians will again find themselves with the unimaginable choices of triaging which patients are to receive care first, knowing full well that this new law means that the ‘wrong choice’ could result in that physician losing everything they own to a lawsuit,” Dr. Bonnie Litvack, president of the Medical Society of the State of New York, said in a statement.
The Legislature passed the bill in late July following anger among lawmakers that the provisions protected providers, particularly nursing homes, at a time when patients were vulnerable.
During Monday’s joint legislative hearing on Covid-19, state Sen. Julia Salazar raised the issue to state Health Commissioner Dr. Howard Zucker, noting the case of Sha-asia Washington, a 26-year-old woman who died during childbirth at NYC Health + Hospitals/Woodhull.
“Is it acceptable that her care team has blanket legal immunity and that her family doesn’t have any recourse?” Salazar asked.
Zucker said the budget provision hadn’t shielded doctors who commit egregious acts from lawsuits.
The state would not “allow any kind of egregious behavior to happen whether it’s in a hospital, nursing home or anywhere. That is the premise long before coronavirus and will be long after coronavirus is gone,” he said. “The objective here was to make sure that those who were working there would be able to provide the care while we were in the upsurge of an absolutely unbelievable pandemic, which is still going on.” —J.L.
Dozens of nursing homes still lack one-week supply of protective equipment
Dozens of nursing homes in New York continue to lack a one-week supply of personal protective equipment, according to data from the federal government.
The American Health Care Association and the National Center for Assisted Living compiled the data, noting that ongoing shortages are concerning as they work to shield residents and staff of long-term-care facilities from Covid-19 outbreaks.
Though the majority of New York’s nursing homes are far better off than the rest of the country, 8% still lack seven days’ worth of N95 masks. Additionally, about 6% of nursing homes in the state don’t have a one-week supply of gowns, and 3% lack a short-term stockpile of surgical masks.
“The continued shortage of vital PPE supplies for nursing homes across the U.S. is a major concern, especially for states with recent spikes in new Covid cases,” said Mark Parkinson, president and CEO of the groups, in a statement.
For New York, one upside is that it continues to be among the states with the lowest seven-day positive testing percentage, which has hovered around 1%.
At the end of July, the Centers for Medicare and Medicaid Services announced that it would begin requiring that all nursing homes in states with a 5% positivity rate or greater test staff each week.
In addition to adequate PPE supplies, Parkinson said, state support for expedited test results for long-term-care facilities will be critical to stemming virus spread. —Jennifer Henderson
July 31, 2020, A Letter to the Editor, Kingston Freeman
We must invest more in home care workers
By Keith Gurgui, Systems Advocate
Resource Center for Accessible Living, Inc. (RCAL)
This year’s tragic loss of life in nursing homes due to the coronavirus has once again highlighted the importance of strengthening our home- and community-based services sector. Unfortunately, state and federal spending in the home care workforce is far from adequate enough to attract and retain these essential workers.
Hand-in-Hand, a national nonprofit advocacy organization for domestic employees, recently released a report called “Essential but Undervalued: Understanding the Home Care Workforce Shortage in the Hudson Valley.”
Authored by Isaac Jabola-Carolus, of CUNY’s Graduate Center, in partnership with members of the Caring Majority, the report surveyed home care workers from the Hudson Valley to examine why some enter the field, and why others leave. Eighty-one percent of respondents said they started working in home care rather than another occupation because they like helping others, and 63% indicated they were pleased with their job responsibilities.
Despite this, 40% of respondents indicated that they were actively looking to leave, or considering leaving the occupation within the next 12 months.
Why? Inadequate pay and lack of benefits are pushing individuals out of the workforce. The median income of a home care worker is $18,443 a year, with a median hourly wage of $13. Strikingly, 47% of those surveyed indicated they received SNAP benefits, Medicaid or both.
For individuals to care for others, they must first be able to care for themselves and their loved ones. These individuals are essential to maintaining public health, independence and a a functioning society. We must invest more in home care.
July 27, 2020, Opinion, reprinted from gothamgazette.com
The Americans with Disabilities Act at 30: How Far We’ve Come and What’s Next
By Susan Dooha, executive director of Center for Independence of the Disabled, NY (CIDNY)
Thirty years ago we fought for the passage of our civil rights law, the Americans with Disabilities Act (ADA). We celebrate the ADA and what it has helped us achieve. Yet, we know that we still have work to do. Exclusion, discrimination, and inequality are built into every system that affects us and we are more severely affected if we are also Black, Latino, Asian-American, or LGBTQ. We look forward to welcoming the next generation of advocates, born since passage of the ADA. We encourage them to join us in ensuring the full realization of disability rights and justice in the next 30 years.
The Disability Rights and Justice movement, including independent living centers, fought hard for changes to barriers in our daily lives. We’ve won a lot since the ADA was passed in 1990. But, to achieve meaningful change, and to protect our rights we must continue the struggle.
Our actions since 1990 led to:
Better access to websites for voter registration and absentee ballots for people who are blind and more accessible polling sites and machines for people with all kinds of disabilities.
Requiring hospitals to provide American Sign Language Interpreters for patients who are Deaf.
Requiring that city homeless shelters come into compliance with the ADA.
Including people with disabilities in planning for and responses to disasters.
Requirements for landlords to lower elevator buttons, install braille, add ramps, etc. for tenants with disabilities.
Accommodating people with disabilities at movie theaters, theaters, and public attractions.
A fair shake for students with disabilities in a mainstream classroom or when taking college or graduate school exams.
Safer street crossings when curb cuts are put in and comply with the law.
People with disabilities having lives full of meaning in the community upon leaving institutions.
Employers leveling the playing field at work by providing necessary tools (a different desk, screen reader for the computer, etc.).
But, resistance to change persists. As new laws, regulations, and programs are created, we still see discrimination built into their fabric. And, many times, the issues that affect our lives are still invisible to others.
More changes need to be made. Accessible absentee ballots must work for everyone with a disability; more accessible and affordable housing would help bring people out of shelters and institutions to live in their communities; more elevator access in subways means more people with disabilities can get and keep employment; new buildings complying with ADA standards mean more people with disabilities can get services they need, work and participate in civic life; and better access to appropriate health care means better outcomes and a healthier population. We can ensure that children with disabilities are not denied full services to support learning in the classroom. We must end police killings of Black and Latino people with disabilities and using police to respond to mental health crises.
Have we achieved a great deal? Yes. Can we do more? We must. We are tired but tireless. We at Center for Independence of the Disabled, NY (CIDNY) will continue to advocate for and work with people with disabilities, and we are fortunate that we have allies to aid us along the way. So today we say happy birthday ADA. You’ve grown up, but you still have a lot of growing to do and a new generation to help make it happen.
July 23, 2020, reprinted from the New York Times
Blame Spreads for Nursing Home Deaths Even as N.Y. Contains Virus
By Jesse McKinley and Luis Ferré-Sadurní
With more than 6,000 nursing home residents dying of the coronavirus, a fight over whether relatives should be allowed to sue has erupted in Albany.
ALBANY — As New York moves from coronavirus crisis to sustained recovery, there remains a heartbreaking fact that some are trying to explore and others seem to be trying to exploit: Nearly 6,500 people have died of the virus in nursing homes and other long-term facilities in the state.
Republicans in Washington and elsewhere have attacked Gov. Andrew M. Cuomo for his role in, and response to, those deaths; Mr. Cuomo has returned fire, accusing his foes of politicizing a human tragedy and arguing that the blame for the number of deaths lay with infected health care workers, not his own policies.
The death toll — a figure that surpasses that of many states — has also inspired questions from Mr. Cuomo’s fellow Democrats, who rule the State Legislature and have scheduled hearings on the issue next month.
The tension and pain surrounding the topic have bled into the debate over a related bill that is expected to be passed on Thursday by the Legislature.
The initial goal of the bill’s supporters was to void a last-minute provision, buried into the state budget just before it was passed in early April, that gave nursing homes and hospitals broad immunity from lawsuits stemming from their failure to protect residents from death or sickness caused by the coronavirus.
But after considerable pushback from the hospital and nursing home industries, and legal questions about its scope, the legislation that’s being advanced is far weaker, with the immunity merely narrowed.
“This is just a first step,” said the bill’s lead sponsor, Assemblyman Ron Kim, of Queens, where nearly 1,000 nursing homes residents died. “We’re coming back after the hearings to see how we can provide retroactive justice for anyone who feels like they’ve been wronged.”
The fight over the bill highlights how fraught the issue has become for Mr. Cuomo and other politicians, as well as nursing home executives, and how sensitive all involved have been to suggestions that they are to blame for the deaths.
Mr. Cuomo, a third-term Democrat, has pushed back aggressively on assertions that his administration’s directive of March 25, which effectively ordered nursing homes to accept coronavirus-positive patients from hospitals, led to more deaths.
In response to that criticism, the State Health Department released a report that essentially absolved the state of any blame; the report concluded that “most patients admitted to nursing homes from hospitals were no longer contagious when admitted and therefore were not a source of infection.”
The report said that the disease was spread by “thousands of employees” who had the disease and did not know they were contagious.
Those conclusions did little to stem Republican criticism that the governor was to blame for thousands of deaths, allegations carried on Twitter and marked by hashtags like #KillerCuomo.
In a letter sent to Mr. Cuomo in July, Representative Steve Scalise of Louisiana, the Republican minority whip who is the ranking member of a House subcommittee on the coronavirus crisis, said the state report was filled with “blame-shifting, name-calling and half-baked data manipulations.”
Mr. Cuomo said his political enemies were spreading lies and “ludicrous” accusations.
“It was cheap, it was ugly, it was political, it was Fox News, it was the haters and it was a lie,” Mr. Cuomo said in a July 10 radio interview, a day after Mr. Scalise sent his letter. “It’s just a pure lie, not based on any fact, but they did it for political expediency.”
For the families of people who died in nursing homes and assisted living facilities in New York, the political friction overshadowed the importance of seeking accountability for deaths that they believe were preventable.
Many were outraged when the state included the immunity provision in the budget. Advocates called it among the most restrictive protections against lawsuits in the country.
“Having liability can cause a facility to be more diligent and prevent incidents occurring that will cost them money,” said Susan M. Dooha, the executive director of the Center for Independence of the Disabled. “The preventive power of liability has been muted.”
Under the budget provision, health care facilities and their employees were protected from civil or criminal liability for the duration of the coronavirus emergency, which Mr. Cuomo declared on March 7 and is still in force.
The legal immunity did not cover gross negligence or intentional criminal misconduct, but would most likely cover a variety of other scenarios, including harm that arose from a shortage in staffing or protective equipment.
The provision was fought for and celebrated by industry lobbyists like the Greater New York Hospital Association, which has close ties to Governor Cuomo and has given hundreds of thousands of dollars to Democratic campaign committees in Albany in recent months (as well as lesser amounts to committees for Republicans, who sit in the minority in both legislative chambers).
Under Mr. Kim’s bill, that immunity would be modified to allow legal action if it could be argued that a health care facility or health care professional had failed to prevent a patient from contracting the coronavirus, or had not tried to safeguard them from infection.
“We now know how to prevent and arrange for Covid,” said Mr. Kim, who is a Democrat. “So we will be able to hold nursing homes accountable.”
The bill will also specify that the immunity clause will “only apply to Covid-19 related care and treatment.” That will restore a path for medical malpractice suits unrelated to Covid-19, said Richard Gottfried, the chairman of the Assembly Health Committee.
July 14, 2020
This Week is National Disability Voter Registration Week (July 13- July 17th).
National Disability Voter Registration Week
The REV UP Campaign is coordinating National Disability Voter Registration Week (NDVRW) during the week of July 13-17, 2020. With over 35 million eligible voters with disabilities, we need your help in getting our community registered to vote!
Below is some great content that you/your organization can use to post about voter registration through social media or email.
Please let us know through the form below if you are planning to participate in NDVRW through social media/email or an event. Your collaboration makes a huge difference in preparing our community for the upcoming elections and amplifying the disability vote!
- NDVRW Sign Up Form. Please let us know if you plan to post about NDVRW via social media or email, are interested in or planning to host an event, are interested in connecting with organizers in your state!
- NDVRW Social Media Toolkit
- NDVRW Toolkit
- Folder with All NDVRW Materials
- REV UP Voter Registration Portal
June 24, 2020, reprinted from the American Prospect
New York Voters With Disabilities Left Out of the Absentee Voting System
Accustomed to voting at the polls but compelled by COVID-19 to vote absentee, disabled voters had to surmount obstacles that an unprepared state inflicted on them.
BY BRITTANY GIBSON
As New York worked to expand its voting options for its June primary, the absentee ballot option did not work for many voters with disabilities. Flaws in the absentee ballot procedure made it difficult to vote independently and privately, to the point that some had to vote in person yesterday in order to cast their votes.
Eva Burgess described the process as disappointing. Like many New York voters, Burgess, who is blind, normally goes to the polls to vote, but because of the coronavirus, she opted for the absentee ballot option. However, this option was not immediately accessible to people with disabilities and would not allow voters to cast their ballots independently and in private.
A coalition of disability groups responded with litigation at the end of May to demand an accessible option, which was settled with an agreement with the New York State Board of Elections. Election officials agreed to provide absentee ballots by email to voters with disabilities on request. The ballots should have been designed to be easily read by assistance programs used by people who are blind, and so that they could be filled out electronically, which would also accommodate people with disabilities affecting their motor skills. But different counties used different vendors, and voters faced a range of problems with the compromise voting option.
Burgess was able to successfully use her computer to read and mark her electronic ballot. However, the ballot makers designed the ballot on legal-size paper, not the standard 8.5 × 11 printer paper size. The resizing and printing instructions were difficult to follow and did not accurately resize her ballot.
Burgess caught the error because she scanned her printout and tried to read back her ballot using her accessibility software. When there were words cut off and other blank spaces, she knew something was wrong.
“If you get all the way through that and the only thing that messes you up is printing the damn thing out to be able to send it off, that’s horrible. I cannot explain to you how horrible that is,” Burgess told the Prospect.
The Board of Elections office offered to send an IT technician to help Burgess print her ballot, but this would have compromised the privacy of her vote. Burgess ended up going to the polls on Election Day.
Privacy was also a concern for Jose Hernandez, one of the plaintiffs in the lawsuit. Hernandez has a motor disability and relied on the agreed-upon absentee process to vote, but he was not able to follow all of the steps alone. While Hernandez was able to use his computer to mark his ballot, he was unable to get it into the return envelope and had to be assisted by his home health aide. Like Burgess, Hernandez also encountered issues with page printing size.
“It definitely was not private, but it was independent because I didn’t have to worry about anyone making those choices for me,” Hernandez says. Although Hernandez agreed to this method in the final weeks before Election Day, he hopes for a better option in November—maybe even a choice that is fully digital.
One of his co-plaintiffs, Keith Gurgui, of Ulster County, also experienced similar problems after everything that could be done on the computer was completed. Gurgui relied on his father to get his ballot securely into the envelope, facing a similar physical obstacle to Hernandez.
Meghan Parker’s ballot was not designed to be completely read by her assistance technology. Parker, who is blind, had to rely on someone else to assist her in accurately casting her ballot. She was able to mark her choice in the presidential primary, but then unable to independently know which delegates to vote for to correspond with her choice.
The partially accessible voting option “had a lot of potential to increase access,” Parker said. “It probably gave many people a way to vote independently, and I think given the rushed nature of the situation, it was probably the best that the Board of Elections could choose from.”
The original absentee voting option that Gov. Andrew Cuomo made available to all New York voters because of COVID-19 would not have worked for hundreds of thousands of people. The revised option that emerged from the compromise wasn’t perfect, but Gurgui says he was satisfied with this experience because he does not feel confident going to the polls and because Gurgui lives at home and was comfortable getting assistance from his family.
“Hopefully, in the future [the absentee voting process] will be more independent and private,” he says. “But I don’t feel confident going into the polls until I know COVID is dead and everyone’s vaccinated.”
Having to go to a store or searching for an open public library to print out the ballot completely defeats the purpose of voting at home.
The absentee voting process for people with disabilities in this election would also have been impossible to complete without a personal computer and home printer, which many people may not own or have fully set up to use independently. Having to go to a store or searching for an open public library to print out the ballot, of course, completely defeats the purpose of voting at home.
The voting method put in place for yesterday’s primary was a temporary expedient. Going forward, either the legislature or Gov. Cuomo can authorize a new voting procedure for people with disabilities—or the state can prepare to face further litigation.
Hernandez hopes it’s the former, especially because he believes better solutions can be found. “Why does a person with a disability have to go through litigation? We have to fight, fight, fight for the same access as everyone else,” he says. “It’s not like the technology isn’t out there.”
For some people, a lack of improvement in the absentee voting system for people with disabilities may mean missing the opportunity to vote in what many believe will be the most important election of their lives. The November election, says Burgess, “is too important to screw up, and given the fact that this did not work this time around, I’m not going to have a bunch of faith that it’s going to work a second time. So this will definitely not be an option for me in November,” Burgess says. “I’ll just be putting myself in harm’s way to make sure my vote is actually counted and goes through without any hitches.”
June 23, 2020, reprinted: a letter from Marcie Roth, Executive Director and Chief Executive Officer, World Institute on Disability
NEW YORK — The American Civil Liberties Union, the Service Employees International Union (SEIU), and partner organizations filed a legal petition today with the U.S. Department of Health and Human Services (HHS) calling for the agency to take quick and essential action to correct its mishandling of the COVID-19 crisis for people with disabilities and health care workers. Should HHS neglect to enact changes, the groups will sue.
The petition points to the federal government’s pervasive failure to respond to the risk COVID-19 presents in our country’s congregate settings for people with disabilities, including nursing homes, group homes for individuals with disabilities, intermediate care facilities for individuals with intellectual disabilities, and psychiatric facilities. The petition is addressed to HHS and its agencies, the Centers for Medicare and Medicaid Services (CMS), the Center for Clinical Standards and Quality (CCSQ), and the Centers for Disease Control and Prevention (CDS).
More than 51,000 residents and workers in nursing homes and other long-term care facilities have died of COVID-19 to date — more than 40 percent of total COVID-19 deaths in the U.S. Death rates in other facilities for people with disabilities are also disproportionately high. The petition asserts that HHS bears significant responsibility for this devastating death toll through its actions and inactions, including: failing to issue clear guidance for infection prevention and control, waiving basic patient and worker protections, and failing to divert patients from these settings and facilitate appropriate transitions back into the community — a process that would help reduce the populations in these facilities so that social distancing might be possible. Finally, HHS has hidden the scope of the problem by hiding staffing shortages and failing to require nursing homes to report COVID-19 infections or deaths until May.
“The grossly disproportionate deaths of residents and staff in these congregate settings are a direct result of HHS’ neglect and failure to protect the health and lives of residents and staff,” said Susan Mizner, director of the ACLU’s Disability Rights Project. “This is both a human tragedy and civil rights issue. Every resident in this setting is a person with a disability, and our society continues its practice of warehousing them in crowded, understaffed buildings, with poor resources and little oversight. The HHS response to this pandemic reflects a longstanding and continuing de-prioritization of people with disabilities.”
Nearly 28 percent of nursing home workers are Black and a majority of nursing home workers are people of color. This largely female workforce is suffering now due to HHS’ neglect. Workers across the country have reported lack of access to personal protective equipment, inadequate testing, understaffing, and lack of guidance for infection control in facilities.
“As nursing home workers, resident safety is our number one priority. But since this pandemic started, our employers and elected leaders have treated us as disposable and have failed to provide the equipment, training and protection we need to keep ourselves and our residents safe,” said Chris Brown, CNA, a nursing home worker and SEIU member from Chicago, Ill. “Never before have I feared for my own life on the job. Each day, we walk into our facilities not knowing if today’s the day we catch the virus, or worse, pass it on to our residents. Decision makers refused to take action, and now thousands of lives have been lost. Enough is enough.”
The ACLU and SEIU petition the HHS, CMS, CCSQ, and CDC to take swift action to significantly revise their directives to save the lives of people with disabilities in their care, as well as the staff who attend to them, both as we see COVID-19 cases rise in many states, and before a next wave sweeps through the nation. The groups are calling for the HHS, CMS, CCSQ, and CDC to immediately confront this crisis by requiring true transparency with reporting infection and deaths, reducing the populations in these facilities, and protecting the residents and staff who remain.
The petition was filed by the ACLU and SEIU on behalf of the American Association of People with Disabilities (AAPD), Autistic Self-Advocacy Network (ASAN), Disability Rights Education and Defense Fund (DREDF), National Council on Independent Living (NCIL), Partnership for Inclusive Disaster Strategies, and World Institute on Disability (WID).
The petition can be found here: https://www.aclu.org/petition-covid-19-response-nursing-homes-and-other-congregate-settings-where-people-disabilities
A blog on the filing can be found here: https://www.aclu.org/news/disability-rights/covid-19-deaths-in-nursing-homes-are-not-unavoidable-they-are-the-result-of-deadly-discrimination
Activists call for accessible transit (photo: @CID_NYLevel)
Thousands of nursing home patients died of the coronavirus in New York, including 50 or so people at the Cobble Hill Heath Center in Brooklyn. Dave Sanders for The New York Times
A polling station at Yonkers Middle/High School, on primary day in New York, June 23, 2020