The COVID-19 landscape is continuously shifting.  Cases, deaths, vaccinations, regulations, reimbursements, executive orders, legislation, lawsuits, and staffing issues are all moving targets as the country continues to battle the pandemic.  This environment changes the typical approach of managing medical litigation from the review of an individual’s medical records to an assessment of integrated documentation from the entire COVID landscape.  The following is a snapshot of the current situation:

As of mid-October 2021, nursing home resident vaccinations stand at almost 86% nationally, with staff vaccination rate of 72%.  The CDC’s National Healthcare Safety Network confirmed 3,147 COVID-19 cases among nursing home residents for the week ending 10/17/21, an 89% decrease since the peak in December 2020 and 514 nursing home COVID-19 deaths, a decrease of almost 93% since the December 2020 peak.  Pennsylvania, Texas, California, and New York have the highest number of resident COVID-19 deaths.

The emergence of the Delta variant in the United States drove a rise in cases among nursing home residents from an average of well under 1,000 weekly cases from March through late July to 5,393 weekly cases by mid-September.  Many of the outbreaks occurred in facilities located in areas of the United States with the lowest staff vaccination rates.  As of mid-October, cases have fallen by over 50%, and deaths have decreased over 44% since the September peak.

Nursing home residents account for almost 19% of COVID cases in the US and residents were 14 times more likely to be diagnosed with the disease compared to Medicare beneficiaries in the community.  43% of Medicare beneficiaries who were admitted to the hospital from a nursing home died within 30 days, compared to 22% of community admissions.

A recent study revealed more than 16,000 COVID-19 deaths and 68,000 cases among nursing home residents nationwide were omitted from federal data early in the pandemic as the CDC did not require reporting until late May 2020.  The study estimates the missed data represented 11.6% of total COVID-19 cases and 14% of total deaths among nursing home residents in 2020.  These omissions resulted in severe underreporting by the National Healthcare Safety Network and could have impacted the federal government’s response to providers most in need during the first months of the pandemic, researchers say.  The authors of the study conclude that their publicly available data “offer the ability to credibly study the associations of facility responses and state and federal policy in the early months of the pandemic with slowing the spread in nursing homes, which is not possible with the federal data owing to missing data.”

In May of 2021, CMS began requiring weekly reporting of vaccination data of residents and staff by long-term facilities. The rule also mandates that providers educate and offer the COVID-19 vaccine to both groups and document those efforts.  As a result, surveyors will ask for a list of residents and staff that indicates their vaccine status, vaccine educational opportunities, including attendance records, and they could conduct related interviews.  As of November, Florida, Ohio, Louisiana, Oklahoma, and Missouri had the lowest percentage of staff vaccinated at under 59%.  States with the lowest percentage of resident vaccinations are Texas, Florida, Arizona, and Nevada, with less than 80%.

The Biden administration issued a COVID-19 vaccination mandate for health care workers in facilities paid by Medicare and Medicaid in September, and the final rule was published in the Federal Register on November 5, 2021.  This rule applies to over 76,000 facilities and 17 million healthcare workers, including more than 15,000 nursing homes.  According to a study by the White House, vaccine mandates “boost vaccination rates and result in limited resignations and dismissals.”

These trends in nursing home cases, resident and staff vaccination rates, vaccine mandates, and potential for staffing shortages all impact the COVID-19 litigation environment.  Part Two of this series will focus on industry strategies, status of state and federal guidance, and the litigation landscape.  Excelas has been on the forefront of supporting clients through the development of the COVID-19 Comprehensive Integrated Timeline Tool which facilities the review of federal, state, and corporate guidance that can be incorporated into medical chronologies.  Contact us today to discuss how Excelas can support you in managing the shifting COVID-19 landscape.