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311 dead: State lags in reporting deaths in long-term care, but shields facilities as 'people'

RICHMOND — The number of COVID-19 deaths that Virginia counts in long-term care facilities nearly tripled overnight on Friday to 311, even as the state’s top health official shielded nursing homes and other facilities from disclosing cases and deaths as “people” under state law.

The state’s tally of COVID-19 deaths in long-term care rose from 118 to 311 in one day due to a lag in reporting by the Virginia Department of Health. At the same time, the number of confirmed cases increased from 1,537 to 2,412 as the number of outbreaks in nursing homes and assisted living facilities rose from 120 to 132.

State Health Commissioner Norman Oliver resisted calls to begin identifying cases and deaths by facility, as Maryland and North Carolina now do, because he said state law defines a facility as “a person” and protects the data as personal medical information.

“Unless the code changes, I don’t see how you could do it,” Oliver said during a public briefing with Gov. Ralph Northam on Friday.

The explanation surprised Sen. George Barker, D-Fairfax, who has advocated releasing COVID-19 information for individual long-term care facilities.

“I certainly don’t recall it being in the code,” Barker said after the briefing on Friday. “That’s kind of bizarre.”

Rep. Abigail Spanberger, D-7th, who has pushed for a big boost in federal aid to long-term care facilities, responded, “Whatever the legal explanation for it, this needs to be changed.”

New federal rules

The point may be moot for nursing homes, if not assisted living facilities, with the release of new guidance by the U.S. Centers for Medicare & Medicaid Services on Thursday night. The new federal rules require skilled nursing facilities to report all COVID-19 infections and deaths among residents and staff to the U.S. Centers for Disease Control and Prevention.

Nursing facilities that received Medicaid or Medicare funding also must report on their supplies of personal protective equipment and hand sanitizer, access to testing for COVID-19, staffing shortages and ventilator capacity.

CMS said it will post the information publicly “to support protecting the health and safety of residents, personnel and the general public.”

Nursing facilities — regulated in Virginia by the Health Department — also must inform residents, their legal representatives and families by 5 p.m. the next day of any confirmed COVID-19 infection or when three or more residents or employees experience respiratory symptoms of the disease within 72 hours of one another.

Assisted living facilities, including memory care units, are regulated in Virginia by the Department of Social Services, not the Health Department. Many facilities already report COVID-19 cases and deaths to their residents, families and the public, but some draw the line against publicly confirming deaths.

‘Lack of transparency’

Joani Latimer, the state long-term care ombudsman, said Friday that her office is “extremely concerned about the lack of transparency.”

“We would be the first to understand and respect protection of individual privacy, but believe that would not be compromised by releasing facility-specific data (without resident names) and that the overall public health interest in having that information [is] paramount,” she said.

Latimer acknowledged that some long-term care providers have been forthright in reporting the information, but she said other providers and “stakeholders” have opposed disclosure.

“It needs to be underscored that residents and their families are the ultimate ‘stakeholders’ here — with the most at risk,” she said. “It’s truly life and death for them, and the overwhelming stress and anxiety is only heightened by a climate of secrecy. And practically speaking, they need solid information to make decisions about themselves and loved ones.”

Spanberger has taken a prominent role in advocating for nursing and other long-term care facilities because her district includes Canterbury Rehabilitation & Healthcare Center, which has publicly confirmed 132 cases and 49 deaths among its residents. She also represents Beth Sholom Senior Living, which publicly reports COVID-19 cases but not deaths.

Beth Sholom reported Thursday that it now has 29 confirmed cases of the disease in its health care center, including one resident of a memory care unit who was moved to the health facility after testing positive for COVID-19.

“From a public health standpoint, it creates a lot of confusion,” Spanberger said of gaps in information reported by long-term care facilities.

“Why would a facility not want to share that information?” she asked. “Why would a facility not want to be transparent?”

More testing

Northam and Oliver had good news for nursing homes and long-term care facilities about broader access to testing for COVID-19 to determine its spread among vulnerable residents, whether they are showing symptoms or not.

The governor said that long-term care facilities will be able to ask for “point-prevalence” testing of all residents and staff, using the Virginia National Guard and state Medical Reserve Corps to help administer the testing.

“That’s testing everybody in a facility on the same day,” Northam said.

Previously, the state Health Department has been hampered by lack of adequate testing capacity — including test kits, laboratory support and staff — and also CDC guidance, which continues to advise reserving tests of residents in long-term care facilities for those who show symptoms.

Henrico County had pushed hard for testing all residents of Canterbury in late March, but the process was delayed by CDC and Health Department protocol that limited scarce testing supplies to those who showed symptoms of the disease. However, after the Henrico health department tested everyone at the facility, it found that more than half of the 92 residents who tested positive then had not shown any symptoms.

“Facility staff heroically battling the virus have been ‘flying blind’ due to lack of testing resources,” said Latimer, the state long-term care ombudsman.

With 132 of the state’s 226 COVID-19 outbreaks documented in long-term care facilities, she said, “statistics alone … would dictate nursing home residents should be top priority.”


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