Pennsylvania Long-Term Care Class Action Garners National Attention

A recently filed class action in Pennsylvania is garnering national attention and has the potential to have an impact on future COVID-19-related class actions within the long-term care industry.

Case Summary: Gill v. Pa. Dep’t of Health, E.D. Pa., No. 2:20-cv-2038 (April 28, 2020)

Plaintiff and class representative, Jodi Gill, on behalf of her father, Glenn Oscar Gill, who is a resident of a skilled nursing facility in Beaver, Pennsylvania, filed a proposed class action lawsuit in the District Court for the Eastern District of Pennsylvania on April 28, 2020 against the Pennsylvania Department of Health. Plaintiff is seeking declaratory and injunctive relief on behalf of a proposed class of residents of various Pennsylvania long-term care facilities. Plaintiff sets forth seven causes of action alleging, inter alia, that the Pennsylvania Department of Health’s failure to conduct inspections during the COVID-19 pandemic has put residents of long-term care facilities at risk for infectious disease transmission and has resulted in biomedical experimentation on residents.

Typically, long-term care facilities are surveyed by the Pennsylvania Department of Health at least annually for purposes of monitoring compliance with state and federal regulations. The Department of Health also surveys facilities in response to complaints.  Consistent with guidance from the Centers for Medicare and Medicaid Services (CMS) to state survey agency directors dated March 23, 2020, the Pennsylvania Department of Health limited its surveys to only the following:

• Complaints or facility-reported incidents that may place residents in immediate jeopardy; and
• Targeted infection control surveys of providers identified through collaboration with the Centers for Disease Control and Prevention and the HHS Assistant Secretary for Preparedness and Response.

In counts one through six of the Complaint, Plaintiff alleges that limiting surveys violates the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101; the Patient Protection and Affordable Care Act, 42 U.S.C. § 18116; the Social Security Act, 42 U.S.C. 301, et seq.; the Civil Rights Act, 42 U.S.C. § 1983, as is applies to the Federal Nursing Home Reform Amendments (FNRA), 42 U.S.C. § 1396r, et seq.; and the Pennsylvania Disease Prevention and Control Law, 35 P.S. 521.1, et seq. Under each statute, Plaintiff alleges that the Pennsylvania Department of Health, by following CMS guidance limiting surveys, was implementing discriminatory policies of segregating and excluding long-term care residents from appropriate oversight, protection, care, safety and wellbeing afforded to members of the general public during the COVID-19 pandemic.

Count seven of the Complaint alleges that the Pennsylvania Department of Health has violated the Nuremburg Code and Declaration of Helsinki, which according to the Complaint are the minimum international standards of conduct governing biomedical research on human subjects.  Plaintiff alleges that the Pennsylvania Department of Health had knowledge that at least one long-term care facility was experimenting on its residents with unproven, unauthorized medication in an attempt to see if it prevented the resident(s) from contracting COVID-19. On April 10, Ms. Gill was called by a nurse at the facility where her father, Glenn Oscar Gill was residing and was convinced to sign a “consent” for an experimental drug study she was told was to find out whether the drug combination of hydroxychoroquine (commonly used for malaria treatment) and zinc would prevent infection with COVID-19. Plaintiff alleges that this “study” was not approved by an Institutional Review Board and that a Data Safety Monitoring Board was not engaged. Plaintiff further alleges that informed consent was never sought or given for the treatment.

Plaintiff is seeking a declaratory judgment, declaring that the Pennsylvania Department of Health must provide appropriate oversight and enforcement of the rules and regulations relative to the operation of long-term care facilities, including the following oversights:

• Immediate inspection of facilities to determine the adequacy of infection control procedures in light of the current public health emergency;
• Immediate action including but not limited to testing of all residents, and documentation of all cases of COVID-19 in all long-term care facilities in Pennsylvania in order to protect those currently infected as well as those at incipient risk for infection due to the nature of the disease and its ease of transmission;
• Record and report all cases of COVID-19 by facility and make this data available to the public on a rolling, as collected, basis;
• Report all positive COVID-19 cases to the resident and family of residents who test positive for the disease;
• Immediately take steps to safeguard long-term care facility residents in accordance with standard of care for highly communicable diseases, including the implementation and enforcement of all public health recommendations with regard to those at highest right for contracting COVID-19; and
• Immediately take steps to cause all non-IRB approved biomedical research studies to cease and to identify any and all studies that have taken place, their physical locations, and the principal investigators, or persons directing said studies.

Plaintiff is further seeking permanent injunctive relief, barring the Pennsylvania Department of Health from:

• Withholding appropriate testing or other safeguards, including treatment, and personal protective equipment from the disabled residents of long-term care facilities
• Excluding, denying services to, or discriminating against disabled residents of long-term care facilities; and
• Failing to protect disabled residents of long-term care facilities from unethical and unauthorized biomedical research.

This is the first lawsuit filed against the Pennsylvania Department of Health based on the agency’s response to the COVID-19 crisis. It remains to be seen whether the allegations set forth in this lawsuit are sufficient to support colorable claims against the Pennsylvania Department of Health on behalf of individuals or a class of individuals.

Buchanan’s Post-Acute and Long-Term Care team will continue to monitor developments in the long-term care industry throughout the duration of the COVID-19 pandemic.