CMA Alert | November 4, 2021

Eileen Ossen: In Memory, With Gratitude

The Center for Medicare Advocacy joins in sorrow with the family, friends, and CT community upon the death of Eileen Ossen. Eileen was a wonderful person with an innate optimism, generosity, and easy smile. She and her husband Jeff, for whom she named the Jeffrey P. Ossen Foundation, had many troubles in life, along with much good fortune. Always gracious, they certainly shared the good fortune. In Eileen’s memory and honor, the Center will continue to work to build community and access to quality health care in partnership with our Eastern CT Ossen Project Advisory Team. We send our blessings and condolences to all who were touched by Eileen’s bright and giving spirit.

Affirmed: Negligence and Wrongful Death Cases Against Nursing Homes During COVID-19 Pandemic Belong in State Court

Declaring “There is no COVID-19 exception to federalism,” the 3rd Circuit Court of Appeals affirmed the district court’s dismissal of two negligence and wrongful death cases that nursing home defendants had moved from state court to federal court. Estate of Joseph Maglioli, et al. v. Alliance HC Holdings LLC, et al, Nos. 20-2833 and 20-2834 (3rd Cir. Oct. 20, 2021).  Like the US District Court, the appellate panel rejected the facilities’ claim that the federal Public Readiness and Emergency Preparedness (PREP) Act gives facilities immunity from litigation during the COVID public health emergency.

In the lawsuits that they filed in state court, plaintiffs alleged that the facilities failed to take appropriate measures to protect them from COVID-19 and that the residents’ deaths were a result of facilities’ failure and/or medical malpractice. The 3rd Circuit notes that similar lawsuits against nursing facilities have been filed across the country during the pandemic, that many were removed to federal court by the nursing facilities, and that “Nearly every federal district court to confront these cases has dismissed for lack of jurisdiction and remanded to the state court.”  The 3rd Circuit is the first appellate court to consider the issue.

The 3rd Circuit panel:

(1) rejected the nursing homes’ argument that it defer to the agency’s interpretation of the PREP Act, noting that “HHS is not delegated authority under the PREP Act to interpret the scope of federal courts’ jurisdiction;”

(2) held that the facilities cannot rely on the federal-officer removal statute, 28 U.S.C. §1442(a)(1), because they “were not ‘acting under’ the United States, its agencies, or its officers;” and

(3) rejected the argument that the PREP Act “is so pervasive that the estates’ state -law negligence claims are really federal claims under the PREP Act, and are thus removable to federal court [italics in original].” 

The 3rd Circuit held “only that (1) the estates’ negligence claims based on New Jersey law do not fall under the PREP Act’s narrow cause of action for willful misconduct, and (2) the PREP Act’s compensation fund is not an exclusive federal cause of action triggering removal jurisdiction.”

The 34-page decision is available at http://www2.ca3.uscourts.gov/opinarch/202833p.pdf

Connecticut Begins Penalizing Long-Term Care Facilities Failing to Comply with Governor’s Vaccine Mandate

The Connecticut Department of Public Health (DPH) announced it is issuing the first round of civil penalties to long-term care facilities failing to comply with Governor Ned Lamont’s Executive Order 13F requiring all long-term care facility staff either to be fully vaccinated or to have received the first vaccine dose with an appointment for the second dose in a two-dose series, unless exempted by a physician.[1] Furthermore, according to the Executive Order, long-term care facilities that fail to comply with this order are subject to a civil penalty. These facilities were required to submit reports attesting to the facility’s compliance by September 28, 2021.

Of the 643 long-term care facilities subject to the order, 226 facilities (35%) failed to report to DPH by the deadline (“Late Reporters”), while 122 facilities (18.9%) failed to report altogether (“Non-Reporters”). According to DPH, it has issued $221,000 in civil penalties to 26 of the 59 facilities in the Late Reporter category, while penalties for non-reporting were issued per day. The DPH provided a seven-day grace period to non-reporting to facilities in an effort to demonstrate its recognition of the challenges around implementing the order. That 7-day grace period resulted in $1.5 million of penalties being waived, with 33 facilities not incurring any penalties for late reporting.

DPH will continue to review the remaining 122 facilities in the Non-Reporter category. Beginning November 1, 2021, facilities classified as Non-Reporters may be assessed on-going penalties. DPH estimates that Non-Reporters are collectively subject to $15 million in fines.

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[1] Boyle, C. Connecticut DPH Begins Issuing Civil Penalties to Long-Term Care Facilities for Failure to Comply with Executive Order 13F. (Oct. 29, 2021). CT.gov. Available at: https://portal.ct.gov/DPH/Press-Room/Press-Releases—2021/Connecticut-DPH-Begins-Issuing-Civil-Penalties–to-Long-term-Care-Facilities

CT Residents: Free Town Hall with Sen. Richard Blumenthal

Sponsored by the Ossen family Foundation Medicare Outreach, Education and Advocacy Project.

November 5, 2021 – 2-3 PM EDT

Please join U.S. Sen. Richard Blumenthal to discuss health care and related issues in Connecticut. The program will include:

• Medicare Updates and Concerns
• Congress/Administration Priorities
• 2022 Medicare Enrollment
• Q&A

Register now at https://attendee.gotowebinar.com/register/7192199545270138384

Our Strength is Our Community

As a nonprofit organization, the Center relies on the generosity of donors to sustain a wide range of advocacy and educational initiatives. As we close out our 35th anniversary year, your support will help us continue our mission to advance access to comprehensive Medicare, health equity, and quality health care.

If you are able to make a contribution by December 31 you will help us reach our fundraising goal by the end of the year. Most importantly, your support allows us to continue to build our diverse, multigenerational community and connect with even more families in need nationwide.

Donate at https://medicareadvocacy.org/donations/