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Faith Boettger
National Academy of Elder Law Attorneys
(703) 942-5711
David M. Goldfarb
National Academy of Elder Law Attorneys
(703) 942-5711
NAELA News Journal - NAELA News Online

NAELA Foundation Responds to COVID-19 Crisis by Awarding Advocacy and Litigation Grants

By Faith Boettger and David M. Goldfarb, Esq., CAE
Published August 26, 2020
In March, the COVID-19 pandemic exposed the underlying weaknesses of our long-term care (LTC) system in the most tragic of ways. In 20 states, at least half of all COVID-19 deaths are linked to nursing homes.

Nationwide, more than 40 percent of deaths are linked to nursing homes. While the virus is known to be particularly lethal to people with a chronic illness, nursing home residents remain isolated from their families, often failing in health as a result. 

At the beginning of the crisis, NAELA quickly shifted its advocacy priorities towards ensuring the safety and wellbeing of LTC facility residents and expanding access to care outside of institutions by collaborating with leading organizations to address these issues in Washington, D.C. Now, two new NAELA Foundation grants will provide funding to Consumer Voice and Center for Public Representation to push for appropriate change and defend against efforts to weaken existing laws to protect LTC residents.

Advocacy: Nursing Home Visitation and Immunity from Liability
In response to the crisis, the Centers for Medicare and Medicaid Services (CMS) imposed a total ban on nursing home visits in March. On May 18, CMS issued updated guidance that effectively handed the decisions over to states. The ban on visitations led to extreme isolation for residents. The ban on visitation has also led to a nearly total lack of oversight of the conditions inside facilities. 

As states move to re-open nursing homes, their policies must be developed with the best interests of the residents in mind. This careful balance of how and when to allow for visitation is complicated, yet critical. Consumer Voice, through a NAELA Foundation grant, will be working to address these policy questions, as well as work with NAELA to ensure proper implementation in states.

At the same time, LTC facilities have sought immunity from legal claims during the COVID-19 crisis, particularly related to deaths from the virus, at both the state and federal level. NAELA has been part of an ongoing coalition, led by Consumer Voice, to combat this lobbying effort from nursing homes. This grant will help Consumer Voice continue to play its leadership role on this issue. 

Litigation Strategy: Access to Community Services 
Far too many people with disabilities of all ages remain in nursing homes and other congregate settings when they could otherwise receive care at home. One major impediment remains the fact that these services are optional under the Medicaid program.

That these services are optional doesn’t let states off the hook entirely. The Americans with Disabilities Act (ADA), under the Supreme Court’s Olmstead decision, recognized a person’s civil right to receive services in the community. Unfortunately, limits exist to the extent which Olmstead can require access to community services.

The Center for Public Representation (CPR) is a leader when it comes to litigating cases that seek to enforce rights under the law that provide greater access to community services. The Foundation grant will allow CPR to develop exciting new legal theories under the Nursing Home Reform Act and Pre-Admission Screening Resident Review (PASRR) to require states to implement better policies that ensure access to community services and allow for greater diversion from nursing homes and other congregant settings. 

Once these legal theories are fully developed, CPR will move towards litigation against a state out of compliance with these laws. If successful, such litigation could become a blueprint for lawsuits across the country to enforce better access to services in the community. 

The NAELA Foundation’s mission is to advocate for the rights of older Americans and people with special needs by focusing on litigation and regulatory advocacy, amicus briefs, research, and education/scholarships. To learn more about NAELA Foundation or make a tax-deductible donation, visit NAELA.org/Foundation. NAELA Foundation is a 501(c)(3) non-profit organization (EIN 45-5334205).
About the Authors
Faith Boettger is the NAELA Foundation Development Officer.

David M. Goldfarb, Esq., CAE, is the Director of NAELA Advocacy.