The case revolves around National Fire & Marine Insurance’s attempt to have individual COVID claims considered separate healthcare events for legal purposes. A late 2022 interpretation by the US District Court for the Eastern District of Pennsylvania would have forced Genesis to pay $3 million in self-insurance fees in each case related to COVID before getting any relief from its insurer. 

Genesis, which court records described as having aout 400 nursing homes and assisted living facilities in the US, quickly escalated that decision to the US Court of Appeals for the Third Circuit.

On Monday, a three-judge panel ruled that the lower court had erred in even considering National’s request for a quick, summary judgment, saying the full extent of possible payouts by Genesis hadn’t become clear yet.

In legal terms, that made the case “not ripe” for review.

“That is because Genesis is far short of meeting its $3 million threshold on a single SIR [self-insured retention] — let alone on multiple SIRs,” write judges Kent A.Jordan, Stephanos Bibas and David J. Porter.

In late 2022, Genesis said it had paid $1.3 million in covered expenses and anticipated an additional $300,000 over the ensuing five months for all COVID claims against the company. In an update requested by the appeals panel, Genesis put its to-date costs at just over $2 million, which the judges noted was still “far short” of the $3 million threshold.

“At this stage of the case, we fail to see how there is any ‘real and substantial threat’ of harm if a declaratory judgment is not entered,” the judges wrote. “Many COVID-related claims against Genesis already are barred by the statute of limitations in many states. So the likelihood of Genesis’ costs exceeding $3 million any time soon — if ever — does not constitute a substantial threat of real harm.”

A request for comment from a Genesis spokeswoman was not immediately returned Tuesday.

The judges ruled that the District Court lacked subject-matter jurisdiction over the controversy and erred in its earlier ruling for National. It vacated that judgment and returned the case to the lower court for further proceedings.

Genesis faced at least 46 COVID-related claims, according to court documents. It took out its additional policy with National Fire & Marine in the fall of 2020, with a coverage period that was supposed to be retroactive to December 2019. While Genesis agreed to pay the first $3 million in defense costs, settlements or judgments for each healthcare event up to $160 million total, it viewed COVID as a single event.

Had National been victorious, it would have covered none of the costs associated with claims against Genesis during the policy period.

As it is, the insurer may remain virtually unaffected by Monday’s ruling.

Before the 2022 ruling, Genesis was subject to 41 unsettled lawsuits and would have to incur about $41,000 in costs each to cross the $3 million total at the heart of the case. But National conceded that only 17 of those 41 lawsuits were currently in litigation.

A call seeking comment from the National Indemnity Company, which owns National Fire & Marine Insurance Company, was not returned Tuesday.

Every long-term care resident deserves to enjoy these festivities to the fullest without the risk of acquiring a respiratory virus that may land them in the hospital, or worse. As highlighted during the pandemic, what happens in the outer community is the major driver of viral spread into long-term care centers. So, it is incumbent upon all of us to ensure that our population is equipped to fight off common respiratory viruses, such as influenza, RSV and COVID-19; however, the challenge lies in convincing our nation’s seniors, healthcare workers, and the general public to roll up their sleeves and get vaccinated. 

As a geriatrician and current chief medical officer at the nation’s largest organization representing long-term and post-acute care centers, I have witnessed both the devastating impact these viruses can have and the incredible strides the global medical community has made in developing effective vaccines. We know that these vaccines may not necessarily prevent infection, but they do reduce the risk of severe illness and a potential trip to the hospital or worse — death. 

A need to double-down

Despite these major advancements and historic milestones, we are seeing a decline in the number of individuals willing to receive these vaccines. “Vaccine fatigue” and hesitancy are rampant throughout our society but especially when it comes to the COVID-19 and RSV vaccines. 

A recent KFF survey found that more than half (51%) of all adults say they “definitely” or “probably” will not get the latest COVID-19 shot and two-thirds of the general public are not worried about getting the virus. Meanwhile, only 16% of adults 60 years and older report having received the RSV vaccine. These surveys are consistent with what we’re seeing unfold. 

Recent data from the CDC shows low vaccination rates in the community. While we are seeing the same trends in long-term care settings, it is encouraging that our uptake is higher than in the community. Nonetheless, we need to double-down on our efforts to increase those numbers. 

Much has been written about challenges with vaccine availability or why we should hold more clinics to vaccinate our residents. These are not the reasons we’re seeing slow uptake. While initially the new COVID-19 vaccine was hard to access because it was first sent to commercial pharmacies serving the general public, the vaccine is now more widely available through the pharmacies serving nursing homes. National regulations require nursing homes to educate and offer every resident and staff member the COVID-19 vaccine. 

Harmful ripple effects

The primary issue is that the majority of residents or their family members who are making decisions for them either no longer believe the COVID vaccines are necessary or express fear and skepticism about getting the new shots. We are hearing similar concerns related to the RSV vaccine, despite evidence that it is most effective among the elderly, individuals with chronic diseases, and those who live in a long-term care setting. 

I’m also concerned that this vaccine fatigue and hesitancy is impacting interest in the influenza vaccine, which is lower this year than in pre-pandemic years. 

In addition, there are administrative and insurance reimbursement challenges that need to be addressed. In long-term care, we need vaccines to be readily available to order when a current resident or new admission wants the vaccine. Additionally, those orders need to come with a guarantee that we, as providers, or the pharmacy receives reimbursement from all insurance providers — not just Medicare. Cutting the red tape around reimbursement can help ensure that long-term care providers have access to the vaccine and remain focused on encouraging uptake. One way federal policymakers could take this a step further would be to offer a pool of free vaccines available to long-term care providers. This would eliminate the administrative burden and streamline access to vaccines for residents and staff. 

While free vaccines would be ideal, most importantly we need effective and consistent public health messaging, which is the major driver of the current vaccination rates. We need every provider in every healthcare setting — from the physician’s office, commercial pharmacy, adult day care, hospital and beyond — to discuss the importance of the vaccines with the elderly and their family and address each person’s concerns. 

We’ve come a long way, but … 

Unfortunately, many new admissions arrive to a nursing home or assisted living community without having been offered or received the vaccine during their encounters with clinicians in other healthcare settings. 

Using nursing homes as a stopgap to vaccinate all individuals is ineffective and insufficient. Seniors and families need to be offered the vaccine before they’re admitted to a long-term care facility — and at every subsequent interaction, especially since primary healthcare providers are seen as trusted advisors. Long-term care staff can then help pick up those missed or continue to work to convince hesitant or skeptical residents to get vaccinated. By increasing our education efforts throughout the healthcare community, we can work together to encourage more individuals — residents and staff alike — to get vaccinated.

We’ve come a long way since 2020: COVID-19 is no longer a pandemic, and the mortality rate among nursing home residents remains at record lows. Vaccines are a major reason why, but after three years of battling this virus, Americans have a hard time acknowledging vaccines are still necessary. 

Nursing home providers cannot shoulder the responsibility of combating these deeply held beliefs all on their own. As a country, we need to focus on collectively increasing vaccination rates among the general population and avoid isolating or placing blame on specific communities or individuals. 

Long-term care providers should be applauded for achieving higher vaccination rates than in other settings, but we need a collective endeavor to take this further. 

By having the entire healthcare community and public health system collaborate, we can overcome vaccine skepticism and hesitancy and achieve even better vaccination rates among our residents. In turn, we can better protect our most vulnerable community members. 

David Gifford, MD, M.PH, is the chief medical officer of the American Health Care Association and the National Center for Assisted Living (AHCA/NCAL). 

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.

Have a column idea? See our submission guidelines here.

Using data from the Centers for Disease Control and Prevention, the analysis found that deaths over the four-week period ending Nov. 19 were more than four times higher than those recorded during a four-week period ending June 25.

About 1,000 residents died from the virus in the fall time frame, bringing the year-to-date total to roughly 9,000 residents, AARP reported. Since the start of the pandemic, more than 185,000 nursing home patients have died of COVID.

But vaccinations, at first widely embraced by residents and later mandated for healthcare workers, drove infection and deaths rates down dramatically starting in 2021.

The uptick in deaths last month, accompanied by a quadrupling of infections of both residents and staff compared to this summer, comes as vaccine coverage is way down compared to the last two winters.

But there is some reason for optimism. The AARP analysis reported about 25% of nursing home residents were considered up-to-date on COVID shots, though that figure was based on Nov. 19 reporting. As of Dec. 3, according to Centers for Medicare & Medicaid Services data, the resident up-to-date figure had climbed to 30.7%, with 7.2% of staff covered.

Resident deaths peaked at 338 the week ending Nov. 26, then fell back to about 260 per week for the first two weeks of December, according to a review of CDC data by McKnight’s Long-Term Care News on Thursday. That’s still on pace to record another 1,000 deaths by year’s end, however.

Providers have continued to encourage vaccination, but in many states they reported early challenges with accessing shots, paying for them and getting enough for all of their people. More broadly, aging services providers said they are facing the same challenges public health officials are: a lack of interest in yet another round of vaccines.

“Long-term care providers are making every effort to encourage residents and staff to get vaccinated, and we are confident we will continue to make progress in the face of cold and flu season,” David Gifford, MD, chief medical officer at the American Health Care Association/National Center for Assisted Living told McKnight’s in late November.

“While nursing home residents are more than three times as likely to be up to date on their COVID vaccinations compared to the general public, nursing homes do not operate in a vacuum,” he added. “Unfortunately, we face the same challenges that we’re seeing across the US population at large: vaccine misinformation, hesitancy and fatigue. We need a collective approach to boost vaccine access and uptake, and AHCA/NCAL will continue to seek support of public health officials and the broader health care community.”

In November 2021, AARP reported, almost 90% of residents were vaccinated and roughly 40% had received a booster shot. Staff vaccinations had also hit the 80% mark just ahead of the Supreme Court approving a federal mandate. That mandate was ended along with the expiration of the public health emergency earlier this year.

Entirely virtual, the community health program offers free COVID-19 health services — at-home rapid tests, telehealth sessions and at-home treatments — to eligible participants nationwide. With its extension across the nation, the Home Test to Treat program now will offer free testing, telehealth and treatment for both COVID-19 and for flu.

It is the first public health program that includes home testing technology at such a scale for both COVID-19 and flu, NIH said. It initially will provide a test — the LUCIRA by Pfizer — which can detect both viruses in a single test at home.

Any adult 18 or older with a current positive test for COVID-19 or flu can enroll to receive free telehealth care and, if prescribed, medication delivered to their home. Adults who do not have COVID-19 or flu may enroll and receive free tests if they are uninsured or are enrolled in Medicare, Medicaid, Veterans Affairs health care system or the Indian Health Services. If recipients test positive at a future time, they can receive free telehealth care and, if prescribed, treatment.

The program is a collaboration among NIH, the Administration for Strategic Preparedness and Response, and the Centers for Disease Control and Prevention.

In March of 2022, the Biden administration unveiled the test-to-treat program as part of a multipronged initiative to combat the COVID-19 pandemic. The program included test-to-treat locations around the country where Americans could receive free COVID tests and free treatments. Other COVID-19 initiatives included expanded access to free testing and support for the healthcare labor force, which was being taxed by the pandemic.

The study was published today in the American Journal of Infection Control. The source of the data was 191 healthcare workers at the University of North Carolina Medical Center. The participants responded to surveys between July 2020 and January 2021. The questionnaires asked the workers to share their experiences on virus exposure and whether or not they stuck to infection precaution standards.

There were three groups of healthcare workers surveyed: 45% were doctors, advanced practice providers, physician assistants and nurse practitioners; 27% were registered nurses; and 28% were therapists, dieticians, and those working in food and environmental services. In addition to surveys, the researchers monitored the workers and reported data on their infection control.

Some 57.4% of registered nurses were in roles that put them at a higher risk of SARS-CoV-2 exposure (like dealing with people who had the virus), compared to nearly 29% of physicians and 38% of people in the third group. Healthcare workers who were more likely to be exposed to the virus were also 5.74 times more likely to say they made at least one error in following infection precautions in the previous two weeks.

In terms of sticking to personal protective equipment guidelines, 33.3% of registered nurses and 26.5% of doctors said they had one error in a two-week span compared to 9.6% in the other category of workers. Most had good access to gowns, gloves and other personal protective equipment.

Hand hygiene was a big sticking point, as it was the task that was performed incorrectly the most. The workers stuck to hand and glove protocol 40% of the time in rooms with people who had COVID-19, the study found.

“While error rates varied by job type, what this study really shows is that all three groups of healthcare personnel were at risk of SARS-CoV-2 exposure and were making errors in adherence to infection prevention protocols during the height of the pandemic,” Emily J. Haas, PhD, lead author and a research health scientist at the Centers for Disease Control and Prevention’s National Institute for Occupational Safety and Health and National Personal Protective Technology Laboratory, said in a statement. “This is a clear demonstration that we need to improve engagement in our training for emergency preparedness and to create a more strategic response that will help our healthcare workers stay safe even in times of extreme stress.”

COVID immunity laws were adopted by at least 38 states during the height of the pandemic. Lawmakers’ willingness to excuse healthcare providers acting in good faith from COVID lawsuits was widely viewed as a move necessary to keep facilities open amid the public health crisis. The federal government, likewise, adopted a federal law protecting providers from litigation related to the prevention or treatment of COVID.

But after the pandemic’s first year, New York became the first state to repeal its shield law, known as the Emergency or Disaster Treatment Protection Act. It was clear providers would no longer face blanket protection from state cases moving forward. But plaintiffs’ attorneys also argued that the April 2021 repeal should erase promised protections retroactive to the pandemic’s start.

Pine Haven Nursing and Rehabilitation in Philmont, NY, asked the court to dismiss a complaint that made such an argument in a negligence case. The lawsuit was brought by the estate of long-term resident Janice Tipple, who died after contracting COVID in April 2020.

A five-judge panel of the New York Supreme Court Appellate Division for the Third Judicial Department on Thursday dismissed the plaintiff’s call for a retroactive case, noting that most courts interpret laws — even repealed ones — to be forward-looking in nature.

The court noted that legislators did not appear to intend to make the repeal retroactive, comparing language in the shield’s April 2020 adoption that included a retroactive effective date to language in the 2021 repeal, which did not.

While many jurisdictions have repealed their immunity statutes or allowed them to expire, one attorney told McKnight’s Long-Term Care News Friday that most courts would not allow arguments on retroactive application to stand. But this case, added to existing case law, could be seen as “persuasive precedent” outside of New York, too.

Proof of good-faith efforts

Attorneys for Tipple’s estate argued that retroactive application was the correct approach in New York because lawmakers meant it to be remedial, or fix past wrongs. But the justices rejected that argument outright, writing that “retroactive application of the repeal of the [law] would merely punish healthcare providers ‘for past conduct they cannot change — an objective [that has been] deemed illegitimate as a justification.’”

The state Supreme Court itself had previously held that the facility had no immunity protection and denied a motion to dismiss in part.

In addition to restoring state immunity, the ruling Thursday also dismissed the negligence  claims on a factual basis. The defense argument was bolstered by evidence from staff that the facility had acted in “good faith” and used state- and FDA-approved supplies “on a daily basis in order to monitor, diagnose, treat and prevent the spread of COVID-19.”

Pine Haven also was able to demonstrate that in enacted infection control practices, such as visitor restriction and employee screenings, and that those practices were used in Tipple’s care. The facility had a state health department inspection in April 2020 and had no deficiencies related to COVID management. 

Those facts, the court wrote Thursday, “unquestionably” established that the facility had worked in good faith and could not be carved out of the COVID immunity coverage because of gross negligence.

Tipple’s case was dismissed in its entirety.

The Novavax updated vaccine received emergency-use authorization by the WHO on Thursday. It is a protein-based vaccine approved for people ages 12 and up. Last month, it was authorized for use in the United States, Reuters reported. An emergency use classification can expedite regulatory approvals to import and distribute the shots to member states, WHO said.

The Novavax shot is based on a protein technology and not an mRNA foundation like the Pfizer and Moderna COVID-19 vaccines.

The news about the Novavax COVID-19 vaccine comes as new data shows that about 1 in 10 new COVID-19 cases are attributed to the BA.2.86 variant, the US Centers for Disease Control and Prevention reported Monday. The variant is on the move the quickest in the Northeast, as more than 13% of COVID-19 cases in New York and New Jersey are from the BA.2.86 variant. 

Other recent new COVID-19 cases were from the XBB variant and its descendants, such as the HV.1 and EG.5 variants.

According to the CDC, the estimate of cases from BA.2.86 have tripled since Nov. 11. 

Still, “it is important to note that early projections tend to be less reliable, since they depend on examining growth trends of a smaller number of sequences, especially as laboratory-based testing volume for SARS-CoV-2 has decreased substantially over time,” the agency noted in an update on the variant.

Data on the variant suggests the new variant doesn’t lead to more severe illness compared to variants of the past, the CDC said. The CDC also said the BA.2.86 variant has a “low” public health risk.

In recent weeks, scientists have been analyzing an increase in a BA.2.86 descendant called JN.1. In fact, that variant has become the fastest-growing subvariant worldwide. 

When researchers looked at 1,359 people who were released from a hospital in Wuhan, China, between January 2020 to May 2020, they found that 54% of them had at least one symptom three years later. Most of the symptoms were mild to moderate, but there were higher rates of reinfection and pneumonia after the omicron variant came onto the scene, the data showed. The study was published Nov. 21 in The Lancet Respiratory Medicine.

Participants in the study had follow-up visits after they were discharged; they saw doctors at six months, one year and two years after infection. One year after initial infection, people in a control group (who didn’t have a history of SARS-CoV-2 infection) were recruited from the area. At two years, they were matched with COVID-19 survivors and underwent lung function tests.

Of the 1,359 COVID-19 survivors, 54% said they had one or more mostly mild or moderate lingering symptoms three years after having the virus. After omicron emerged in November 2021, 76% of with long COVID at two years had significantly higher rates of reinfection compared to 67% without long COVID; 5% with long COVID at two years had pneumonia compared to 2% of those who didn’t have long COVID,

Three months after omicron infection, 62% of COVID-19 survivors with long COVID at two years had new-onset or worsened symptoms — higher than 41% in the group without long COVID.  

Lung function in those who had survived COVID-19 at three years was similar to the people in a control group.

“Although the organ function of survivors of COVID-19 recovered over time, those with severe long COVID symptoms, abnormal organ function, or limited mobility require urgent attention in future clinical practice and research,” the study authors wrote.

Authors of a related commentary published noted that the people studied were from a single center, and there weren’t many COVID-19 survivors studied who were critically ill. “Unfortunately, although various outcomes were measured in uninfected controls, sequelae symptoms were not,” authors of the commentary wrote.