Margaret E. Somerset
Protecting Our Seniors at What Cost?
In addition to Margaret Somerset, this post was authored with input from Colin Ramsey.
We are 8 months into the COVID-19 pandemic, and it is taking its toll on everyone. We are all tired of being careful. And we are all fearful of not being careful enough.
Nowhere is this more evident than in our long-term care facilities. Statistically, the elders in long term care have been at highest risk for death from COVID-19. According to the Centers for Disease Control (“CDC”), while residents of long-term care represent 0.6% of the US population, in the first four months of the pandemic, they accounted for 42% of the deaths from COVID-19. In New York State, there are reports that between 5,600 and 7,000 of the 33,000 deaths have been residents in long term care.  Experience shows that once Covid-19 enters a long-term care facility, the infection and death rate mount so quickly that it is difficult to reverse.  In fifteen states, at least half of the deaths from COVID-19 are linked to nursing homes. 
To gain some semblance of control in our nursing homes, both the CDC and the New York State Department of Health (NYSDOH) instituted mandatory guidelines to cease all outside visitation, isolate symptomatic or exposed residents to their rooms, cancel group activities, halt all shared therapy rooms and discontinue communal meals.
It is very had to find statistical evidence that this strategy is working - although the New York Governor argues that the percentage of nursing home deaths due to COVID-19 across New York dropped from 42% in March to 20% in August. 
But, the mortality risk of COVID-19 in long-term care settings made prevention and eradication of paramount importance. It is reasonable to think that protecting elders from the virus was more important than the short-term risks of isolation.
The prohibition against visitors is cited as the “most disruptive” to elders. New studies and statistics are starting to show that the adverse effects of loneliness among the elders whom we sought to protect are also placing their lives at risk. Many elders in long term care have a baseline of dementia, memory loss or confusion. These elders have not been able to understand why their family does not visit anymore. They miss the physical touch that comes with the compassion of loved ones. They are showing signs of depression without the intellectual stimulation that comes from sharing time with others.
Even before the Covid-19 crises, nursing homes worked hard to combat the “three plagues of nursing homes, loneliness, helplessness and boredom.” For example, in Rochester, New York, the St. Ann’s Nursing Home partnered with Bishop Kearney High School to secure a grant to bring new technology to both the nursing home and the high school students where the students served as tutors to the elders to “teach everything from internet safety and shopping online to Facebook, . . . [and] texting the grandchildren.” The Jewish Home of Rochester developed an app that enabled a resident’s family to interface more closely with the elder. The new technology included the addition of QR codes placed at points of interest around the campus as a means to share photos between family members and residents to spur conversations.
It is well-established that social isolation is a serious health risk which can increase the mortality. Loneliness has been found to cause anxiety, depression, sleep disturbances, heart disease, cognitive decline and even premature death from cardiovascular impairment, metabolic disorders, stroke and heart attack. Loneliness is associated with as much as a 30% increase in early mortality. Many families have seen the deterioration of their loved ones over the course of the pandemic. Social isolation is even being listed as a cause or contributing factor on death certificates. 
The dedicated staff in long-term care have tried very hard to replace the missing stimulation and human compassion for these elders. During the pandemic, there have been heartwarming stories of staff reading, singing, and playing instruments for residents, games of hallway bingo over the PA system, holiday themed meals, Wow Wednesday food items like “Panda-demic orange chicken bowls, virtual tours of Italy and Spain, and lots of Zoom calls arranged with residents’ families. Many facilities like St. Ann’s of Rochester, NY implemented buddy programs linking staff members to one or more residents to provide one to one companionship on a regular basis. They facilitated window visits, updated family regularly and coordinated Zoom calls linking the elders to friends and family. Sometimes the staff would designate particular family members to call first thing in the morning or at the end of the day just to say “good morning” or “good night” to their loved one. The staff describe feeling a great sense of fulfillment in this role, knowing that they have been creating connections to combat the risk of loneliness and depression.
It turns out that while isolation and loneliness often go hand in hand, they are not the same thing. Isolation is a function of the number of relationships or human contact that someone has, while loneliness is a function of the quality of those connections.  Nursing home staff members are incredibly dedicated to the health of their residents, but they are not family. While a travel themed meal lends diversity to a day, it does not replace the compassion of sharing a dining table with loved ones. A Zoom call cannot include a physical embrace.
The unfortunate reality is that there is no easy answer to these unintended consequences. As noted in a recent article in the American Journal of Geriatric Psychiatry, the goal should be to find the least restrictive alternative to achieve effective infection control, to minimize the unintended negative consequences. But this balance is not easy. It is a pass /fail test, which has devastating consequences if the loosened restrictions fail to keep the virus out of the population.
Right now, facilities really have no choice but to continue trying to strike the right the balance between necessary infection control and meeting the social needs of their residents by erring on the side of protection. Until we have an effective vaccine that can protect these elders from the risk of death from this silent killer, there will not be a return to “normal” and we cannot fault the facilities for the unintended consequences of their best efforts to save our elders.
Please do not hesitate to reach out to Underberg & Kessler attorneys to discuss strategies and temporary solutions to these challenging problems that have demonstrated success at facilities across the country.
If you have any questions regarding the issues discussed above or if you have any other Health Care Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Margeret Somorset or Colin Ramsey, the authors of this piece, here or by phone at (585) 919-0680 for Margaret or (716) 847-9103 for Colin.
 Nursing Homes & Assisted Living Facilities Account for 42% of COVID-19 Deaths, Gregg Girvan and Avik Roy, FREOPP, May 7, 2020, updated August 31, 2020.  The Most important Coronavirus Statistic: 42% of U.S. Deaths Are From 0.6% of The Population, Avik Roy, The Apothecary, May 26, 2020.  https://www.health.ny.gov/statistics/diseases/covid-19/fatalities_nursing_home_acf.pdf; How many nursing home residents died of COVID in New York? What we know (and don't know), David Robinson, LOHUD., August 7, 2020, Updated August 11, 2020.  Care Homes Across Globe in Spotlight over Covid-19 Death Rates, Kate Connolly, The Guardian, April 9, 2020; The Coronavirus Is Killing Too Many Nursing Home Residents, Tyson Belanger, MD, The New York Times, May 3, 2020; New York Identifies Every Nursing Home With Covid-19 Deaths, Mike McAndrew, The Buffalo News, May5, 2020; The Whole Place is Sick Now: 72 Deaths at a Home for U.S. Veterans, Tracey Tully, The New York Times, May 10, 2020. About 38% of US Coronavirus Deaths Are Linked to Nursing Homes, New York Times October 20, 2020.  Coronavirus Disease 2019 (COID-19) Infection Control for Nursing Homes, CDC June 25, 2020 https://www.cdc.gov/coronavirus/2019-nCoV/index.html Loneliness and Isolation in Long-term Care and the Covid-19 Pandemic, Joyce Simard, MSW, Ladislav Volicer, MD, PhD, JAMDA https://www.jamda.com/article/S1525-8610(20)30373-X/fulltext  New York’s True Nursing Home Death Toll Cloaked in Secrecy, Bernard Condon, Matt Sedensky and Meghan Hoyer, AP News, August 11, 2020, https://apnews.com/article/ap-top-news-understanding-the-outbreak-new-york-andrew-cuomo-health-212ccd87924b6906053703a00514647f  Visiting Restrictions for Senior Facilities Likely to Last for Some Time, Patti, Singer, Rochester Business Journal, November 4, 2020  Is Extended Isolation Killing Older Adults in Long Term Care?, Emily Paulin, AARP Family Caregiving Medical, September 3, 2020  Technology Deployed to Keep seniors in Touch with Outside World, Gino Fanelli, Rochester Business Journal, January 25, 2019  Id.  Id.  Id.  http://workplacementalhealth.org/Mental-Health-Topics/Loneliness  For Nursing Home Residents, COVID-19 Sparks an Epidemic of Loneliness, Elissa Lee, USC Annenberg, Center for Health Journalism, August 13, 2020; https://www.npr.org/sections/health-shots/2020/05/11/853308193/in-together-former-surgeon-general-writes-about-importance-of-human-connection  Aging Unlonely, The Foundation for Art & healing, https://www.artandhealing.org/aging/  Is Extended Isolation Killing Older Adults in Long Term Care?, Emily Paulin, AARP Family Caregiving Medical, September 3, 2020  Wow Residents with Food Choices, Even When They’re Dining Alone, Cindy Dahl, RDN, NHA, McNight’s Long Term Care News, October 12, 2020, https://www.mcknights.com/blogs/guest-columns/wow-residents-with-food-choices-even-when-theyre-dining-alone/  23 Activities for Seniors Who Are Social Distancing, Claire Samuels, A Place for Mom, May, 2, 2020; 59 Activities for the Elderly in Lockdown or Isolation, www.goldencareers.com; Senior Community Activity Ideas During COVID-19 Quarantines, https://www.welbi.co/  For Nursing Home Residents, COVID-19 Sparks an Epidemic of Loneliness, Elissa Lee, USC Annenberg, Center for Health Journalism, August 13, 2020  For Nursing Home Residents, COVID-19 Sparks an Epidemic of Loneliness, Elissa Lee, USC Annenberg, Center for Health Journalism, August 13, 2020  American Journal of Geriatric Psychology www.ncbi.nlm.nih.gov/pmc/articles/PMC7196899/