Nursing Homes and Rights in New York

During a pandemic, some rights may be set aside for a time. Is that what happened to nursing home residents in New York?

Residents of nursing homes (NH) in the state of New York have specific rights spelled out on the NY Department of Health website. Regarding “Clinical Care and Treatment,” thirteen rights are listed. The webpage listing these rights was last revised in June 2010.

Fast-forward to June 2020.  As of 3 June 2020, there have been 6,068 confirmed or presumed COVID-19+ patients die in NY nursing homes.  Undoubtedly more patients from nursing homes have died of COVID-19 during the pandemic, but New York only includes in their tallies the number of people who die in the nursing home.  If nursing home residents die elsewhere of COVID-19, they are not counted as nursing home deaths.  On 10 May, Governor Cuomo told reporters, “We’ve tried everything to keep it out of a nursing home, but it’s virtually impossible. . .” What happened? 

On 25 March, less than three weeks after Governor Cuomo had declared a State disaster emergency due to the coronavirus pandemic, another statement was issued from the New York administration.  This one was sent from the New York State Department of Health to nursing home administrators, directors of nursing, and hospital discharge planners.  It was an advisory regarding “Hospital Discharges and Admissions to Nursing Homes,” and stated in part

 . . . No resident shall be denied re-admission or admission to the NH solely based on a confirmed or suspected diagnosis of COVID-19. NHs are prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-19 prior to admission or readmission.

Visitors to nursing homes had been locked out as of 12 March.  Then persons who were “medically stable”—including COVID-19+patients—were readmitted or admitted for the first time to the nursing homes.  Nursing homes were not allowed to require a test for coronavirus prior to admission/readmission.

So much for the rights of newly admitted or readmitted NY nursing home residents to

  • adequate and appropriate medical care, including nursing, rehabilitation therapies, social work, dental and other professional services for which you have been assessed to show need;
  • be fully informed by a doctor in a language or a form that you can understand (using an interpreter when necessary) of your total health status, including but not limited to your medical condition including diagnosis, prognosis and treatment plan;
  • ask questions about your medical condition and have the questions answered;

What about the residents in whose midst COVID-19+ patients were admitted or readmitted?  What about their rights to

  • refuse to participate in experimental research;
  • be fully informed in advance about care and treatment and of any changes in that care or treatment that may affect your well-being;
  • participate in planning your care and treatment or changes in your care and treatment

Does re/admitting persons with a virulent infectious disease into a closed environment of vulnerable people  equate to experimental research?  These were certainly changes in their environments that could affect their well-being.  How could nursing home residents “participate” in their care or treatment under such circumstances?

What happened to these rights during the response to the pandemic? Did the State give these rights to the nursing home residents, and therefore, could the State take them away?  No one envies the weight of the burden of the pandemic on the citizens, the health care system, or the elected and appointed governing officials of New York.  Choices made, however, have consequences, and some people live with those consequences.  Others don’t.

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