SPECIAL REPORT: Nursing homes get legal cover as COVID-19 deaths mount

By Mary Clarkin
The Active Age
Some residents of a Clearwater nursing home where 11 deaths from COVID-19 were reported were not given baths for more than five weeks, its former director of nursing says.
Christine Zeller, a registered nurse with a master’s degree in nursing, described the lack of bathing as part of a pattern of substandard care caused by employee turnover and a shortage of equipment and supplies at Clearwater Nursing & Rehabilitation Center. She made the allegations in written testimony to the Senate Judiciary Committee of the Kansas Legislature last month.
“Many of the residents had gone more than five weeks without being bathed, as the facility had a shortage of appropriate accommodations,” wrote Zeller, who started working Feb. 24 at Clearwater, about two months before the first resident tested positive for COVID-19.
Zeller’s testimony came as the Legislature last month considered – and ultimately approved – giving nursing homes additional protection from lawsuits. It was a move sought by the long-term care industry and opposed by residents’ advocates.
“Nursing homes are no different than hospitals or any other health care facility,” Stephen Duerst, a lobbyist for the Kansas Health Care Association, which represents over 260 long-term care providers, told lawmakers. “They were not prepared for this, there was no way they could be prepared for this.”
But Mitzi McFatrich, executive director of Kansas Advocates for Better Care, which seeks quality elder care, said the COVID-19 crisis exposed the fact that good infection control measures were not in place in too many long-term care facilities before the pandemic.
She pointed to a federal Government Accountability Office report released to Congress in May that revealed “most nursing homes had infection control deficiencies prior to the COVID-19 pandemic.” 
Over the three-year span of 2017 to 2019, federal data showed 261 out of 341 Kansas nursing facilities were cited for noncompliance with basic infection control practices, McFatrich noted. “Asking residents to pay with their lives for the woefully insufficient emergency preparedness and substandard care of nursing homes, and allowing adult care homes to face no repercussions for their egregious behavior would be perverse and unjust,” McFatrich wrote in her testimony. 
As of June 18, 22 of Sedgwick County’s 25 COVID-19-related deaths had come from four long-term care facilities.
Deaths rise
Clearwater Nursing & Rehabilitation Center had 11 deaths; Chisholm Place, 1859 N. Webb Rd., seven deaths; Park West Retirement Community’s The Manor Nursing Home, 503 N. Maize Rd., three deaths; and Diversicare of Haysville, one death, according to the Sedgwick County Health Department.
Across the state, 40 long-term care clusters of COVID-19 were identified as of June 17. They accounted for 134 of the state’s 247 deaths from the virus, according to the Kansas Department of Health and Environment.
Not all of the homes where deadly clusters occurred have histories of poor inspection ratings, but some do. The Clearwater home has a “much below average” overall rating on medicare.gov and was fined more than $54,000 last year. Diversicare of Haysville has a “below average” overall rating on medicare.gov and “much below average” on health inspections.
Zeller served as nursing director at Clearwater for less than three months. In addition to inadequate bathing servings, she said, a shortage of personal protective equipment caused staff members to share “isolation gowns” that were left in residents’ rooms, so that “everyone who entered the room shared the same gown,” Zeller wrote. The paper gowns were designed to be worn once and then disposed of, she said.
Before the first positive case was detected at Clearwater, staff did not consistently wear face masks – at management’s directives, Zeller said – and some PPE supplies were locked up and only accessible under the direction of the administrator, she said.
Zeller estimated that when she started, about 65 percent of staff were affiliated with various employment agencies. “It doesn’t offer any continuity of care,” she said, because the nursing home didn’t know which worker would be supplied by the agencies on any given day. 
Zeller said there are “employees who are truly employees of that place that are still there because they love the residents and the people they’re caring for,” but added that overall staff morale was “zippo” when she arrived. 
“They didn’t have any faith in the administration and the residents were the same way,” Zeller said.
She said one resident, speaking at a resident council meeting, said, “’How long will you be here? No one lasts in that position.’”
 The Clearwater home is owned by Willie Novotny of Manhattan, who also operates Orchard Gardens in Wichita and several other nursing homes in Kansas. In an email to The Active Age, Willie Novotny said he was aware of the written testimony given by Zeller “as it is also being circulated around the state by Plaintiff Attorneys in preparation for their future.”
Owner: “in full compliance”
“Clearwater Nursing and Rehab was surveyed in May by The Kansas Department on Aging surveyors for compliance with infection control and COVID emergency plan. We were found to be in full compliance. In conducting this survey our records, procedures and response plan would have been reviewed and our staff would have been interviewed. There were no issues found. Ms. Zeller’s allegations are unsubstantiated.”
An inspection report shows residents complained about the infrequency of bathing in January. Clearwater had been given until March 29 to remedy several issues identified by the state. They included bathing, improper use of patient-lifting equipment and the facility’s grievance process, she said.
However, the March follow-up inspection to see if previous violations had been corrected did not occur, according to Cara Sloan-Ramos, public information officer for the Kansas Department for Aging and Disability Services. The federal government directed a streamlining of inspections as the nation dealt with the pandemic. Then, the Clearwater home asked permission to revise Clearwater’s plan of correction, which was granted.
There are no federal or state set timeframes for staff to provide bathing to nursing facility residents, but residents must be provided hygiene consistent with their needs and choices. Sloan-Ramos noted that residents have a right to refuse a bath. The federal Centers for Medicare & Medicaid Services advised long-term care facility personnel to wear masks while at work starting April 2.
The first positive test of a resident for COVID-19 was reported on April 11, Zeller said. By April 18, a dozen Clearwater residents had tested positive and two had died. Eventually, at least 51 residents and 17 staff members tested positive for COVID-19, including Zeller.
On May 12, Zeller was fired because she was not “‘a good fit,’” her testimony stated. 
The termination “had nothing to do with her positive COVID-19 diagnosis,” Willie Novotny said in his email to The Active Age.
One of those who died was Virginia Snyder, who lived 60 of her 92 years in the town of Clearwater.  She was diagnosed with the virus April 19 and died May 3. 
Snyder’s daughter, Deb Hirsch, of the Seattle area, told The Active Age she made calls to the Governor’s office in April, insisting that all Clearwater employees be tested for COVID-19. Hirsch said she also knew of the shortage of PPE equipment, such as gowns.
The Kansas Department for Aging and Disability Services provided a one-page report for the May 18 review of Clearwater that said a Targeted Infection Control Survey/COVID-19 Focused Survey found the facility to be in compliance with federally recommended practices to prepare for COVID-19.
Also, allegations in five complaints “were not substantiated,” the report said, without describing the complaints in the report.
“No noncompliance was found. The facility is in compliance with all regulations surveyed,” the report concluded. 
Diversicare of Haysville’s performance on recent health inspections was listed as among the worst in the state in a January report by Kansas Advocates for Better Care. In a statement issued after the COVID-19 cluster was confirmed in that facility, Arien Reeves, the Diversicare administrator, said:
“Our goal in this situation, as in all others, is the provision of exceptional healthcare. Our Center implemented precautionary and preparedness measures early — all in accordance with CMS and CDC guidelines — including strict limitations on visitation.
“Limits on visitation will continue, per guidance from the CDC, and we are working hard to make sure residents can still connect with their loved ones. We are doing everything we can to ensure we stop the spread of this within our center and our community. Our infection control procedures are in compliance with the CDC and KDHE guidance.”
“Affirmative defense”
The new legislation for long-term care homes became law June 9. It says an adult care facility “shall have an affirmative defense to liability in a civil action for damages, administrative fines or penalties for a COVID-19 claim” if it had to re-accept a resident who was removed for treatment of the virus, or if it treats a resident testing positive in compliance with regulation and is in substantial compliance with public health directives. 
“They can be sued, but as a practical matter what the Legislature has done by creating the affirmative defense has made it very difficult to challenge,” said Overland Park attorney Tom Wagstaff, Jr. who represents residents and their families in elder abuse cases. “The elderly residents who live in the nursing homes ended up with very little protection.”
The extent of that protection will likely be tested in court. On June 3, two separate lawsuits were filed in Sedgwick County District Court by relatives of people who died in the Clearwater home.

This article was produced as part of the Wichita Journalism Collaborative, a partnership of seven news organizations. The effort is supported by the Solutions Journalism Network and funded by the Knight Foundation.

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