On April 10, Gov. Ralph Northam announced he had assembled a task force to protect frail, elderly Virginians after 32 of them had died while in long-term care and a Richmond-area home was in the grips of one of the nation’s deadliest outbreaks.
The virus has since swept through 170 nursing homes and assisted living centers, killing 589 Virginians — at least 13 of whom lived in the Roanoke Valley — and infecting nearly 4,000 workers and residents.
As of Saturday, their deaths accounted for nearly 60% of the 1,002 Virginians claimed by the virus.
During all this time, Northam has held thrice-weekly COVID-19 briefings that begin with points he wishes to address. Not once since announcing the task force has he used his opening statements to specifically address the plight of long-term care residents and their families who hunger for information.
Northam’s administration has refused to name the homes where cases have been identified, or even to say where they are located.
Dr. Norman Oliver, the state’s health commissioner, said he has relied on the attorney general’s staff for advice on this. He said government lawyers told him that state code extends the same health privacy rights to nursing homes, assisted living facilities and other group homes as it does to human beings — meaning state agencies cannot disclose health-related information about them.
Virginia posts to its website totals for outbreaks.
“You can see there is an outbreak almost everywhere in Virginia. But you don’t know if they have two cases, or if they have dozens of bodies. There is absolutely no idea of the extent,” said Patricia Williams of Virginia Beach.
The nursing home where her sister lives lets Williams know how she is doing, but Williams said she is frustrated with the lack of transparency in Virginia. Families feed on rumor rather than facts, she said.
Because of the code interpretation, Virginia is an outlier among its neighbors. North Carolina, Tennessee, Maryland and West Virginia all routinely publish the names and locations of facilities with the virus, along with the number of residents and staff infected, and the number who have died.
Virginia lists the number of outbreaks — defined as at least one person becoming infected by another without any other means of contracting the illness — that have occurred in local health districts. But most districts include multiple cities and counties.
For example, the health department reports two outbreaks in long-term care facilities for the Alleghany Health District. They could be anywhere in Salem or Covington or Roanoke, Botetourt, Craig or Alleghany counties.
When asked if the department could publish the numbers by locality, spokeswoman Julie Grimes said, “If VDH determines that we can share additional information about these individuals, without compromising their protected health information, we will include the data on our website.”
“Individuals” means the homes.
Salem attorney Ross Hart, who practices elder law and serves as a guardian for a number of people living in long-term care, said Virginia code treats businesses as individuals throughout the code.
“If it is capable of a tax identification number, it is a person,” he said.
Some lawmakers said they want to change the state code, but the earliest that could happen is August.
Joani Latimer, director of the Office of the State Long-Term Care Ombudsman, said the governor should immediately ask the attorney general to reconsider his interpretation of the code. After all, the code was relaxed to allow absentee ballots without witness signatures, and for hospitals and nursing homes to add beds without going through a lengthy regulatory process.
“I think it’s in the public interest to look really carefully again at that,” she said. “Part of what is concerning here, and a legitimate question is, there have been lots of flexibilities created in this COVID-19 situation in terms of how our regulations and standards are being implemented. This seems so clearly one that needs some flexing to serve the overarching interest of the commonwealth.”
Why are so many dying?
The Kaiser Family Foundation has been gathering information reported by the states about cases and deaths in long-term care. Five states do not report this data, and not all provide the numbers of deaths.
In 36 states that report deaths, an average of 41% of their deaths were linked to long-term care. Virginia’s percentage was 59.
“We did what we were supposed to do. We locked the facilities down in terms of visitors. We already had infection-control measures in place, but we put in additional measures,” said Keith Hare, CEO of the Virginia Health Care Association and Virginia Center for Assisted Living. “We knew that once the virus entered a facility, we really had lost half the battle.”
Hare said the majority of the people living in Virginia’s nursing homes are very poor and incredibly sick and frail, and they have multiple illnesses.
“From the beginning we have paid a fair amount of attention, as I think we should have, to hospitals and their ability to have supplies and testing and the support they need to meet the crisis. Meanwhile, the clear epicenter has been nursing homes,” Latimer said.
These homes aren’t hospitals and did not have stockpiles of masks, gowns and other protection needed to keep staff and residents from contaminating each other. They are often understaffed, relying heavily on certified nursing assistants, who are among the lowest-paid health care workers. Many CNAs work multiple jobs to make ends meet, increasing the likelihood for cross-contamination across homes.
At the beginning of the outbreaks, Virginia’s health department, again citing privacy, did not allow homes to be notified when any of their staff were exposed to the virus at another facility. That restriction has since been lifted.
“We started in this virus without the level of personal protective equipment we needed. We tried to obtain additional supply lines. We were cut off,” Hare said. “Then on top of that there had been significant lack of testing.”
Virginia has lagged nearly all states in testing per capita. Until mid-April, its testing strategy did not place long-term care residents on the priority list. A month before, the first residents of the Canterbury Rehabilitation & Healthcare in Henrico County were infected with the coronavirus. More than four dozen residents have died in that outbreak.
When the virus first appeared in the state, Virginia shipped its tests to the Centers for Disease Control. Slowly the state initiated its own testing in the state’s consolidated laboratory, but found that swabs, reagents and other supplies were difficult to get.
On April 20, Northam brought in Dr. Karen Remley, a former health commissioner, to coordinate the testing being done by the state, its universities, hospitals and commercial labs. Since then capacity has grown from about 2,000 tests a day to about 7,000 a day.
The additional capacity permitted homes with outbreaks to ask local health departments to do so-called point prevalence surveys, when all residents and staff are swabbed on the same day in order to determine how many are affected.
South Roanoke Nursing Home was one of the first in the state to ask for this survey after three staff members and a resident developed symptoms. The tests were administered April 23, but results were not known for nearly a week, and even then some were inconclusive.
By then, seven residents who tested positive had died. Three more were in a hospital and 33 others had tested positive. At least 10 residents have died.
Earlier this month, Northam said Virginia now has the capacity to do more of these surveys and is using the National Guard to help administer them. The health department said that it had identified 100 facilities that should be tested, but that they could do only a handful of surveys each week.
In response to a Freedom of Information Act request, the department reported that it conducted 42 point prevalence surveys from April 21 through May 10. Of these, 29 were in long-term care facilities. The others were in prisons, schools and workplaces.
The agency said that it had results for 13 of the surveys, and that an average of 230 tests were given for each survey. It did not provide information as to the total number of tests or the number of positive results, as it said that information is still being analyzed.
When asked last week if Virginia would test all nursing home residents in two weeks as recommended by the White House, Northam said, “That perhaps is a bit of an ambitious goal.”
West Virginia began on April 20 testing every resident and every staff member at every long-term care facility and posting the results. As of Friday, the state had reported 335 cases of COVID-19 in the homes that resulted in 32 deaths.
While South Roanoke waited for its results, it faced an additional problem: Dozens of its staff members were also infected, and the facility said it was advised not to bring in workers from other homes until it understood fully who was contagious.
Some family members praised the staff who continued to show up but expressed fear that there weren’t enough people to care for their relatives.
Hare said Virginia’s hospital association and the state’s volunteer Medical Reserve Corps are helping with staffing across Virginia.
The state has also helped to provide personal protective equipment and training staff on how to use it.
“I think the state has been frustrated that they couldn’t provide enough PPE because it could have prevented the spread,” he said.
About 50,000 Virginians work in long-term care.
“I am amazed at the courage of these individuals on the front lines. They went in to fight the battle. Take a step back and think about that. It’s one thing to know I have all the protection I need and we’ve got testing,” he said. “We don’t have the PPE. They knew it. We don’t have the tests. They knew it. We were learning how to isolate individuals after they contract the virus. They still went in, did their jobs and protected these residents and patients. That’s heroic.”
Latimer said that many of the homes have been overwhelmed and that communicating with families who cannot physically check on their relatives might have taken a back seat. That’s why it’s important for the state to provide the information from the homes.
“They are truly under siege. No one wants to be attacking them. They are at the battle lines and in many cases just heroically supporting the needs of the residents as best they can. They are in a tough situation, too,” she said. “We are all caught in this legal bind here that doesn’t seem to be serving the health interests of individuals.”
The federal Centers for Medicare and Medicaid Services has mandated that starting this month, all nursing homes must report cases of COVID-19 to the Centers for Disease Control. They are also to report on staffing and supplies of personal protective equipment, and to notify families about new cases and clusters of cases.
The CDC will then forward the information to Medicare, where it will be posted online. The first batch that is now being submitted is expected to be public by the end of May.
Nursing homes are already required to report infections to the health department’s licensing division.
Assisted living facilities and group homes are not considered health care providers. They are overseen by the Department of Social Services and will not be required to report COVID-19 information publicly.
“That’s why it’s important to address this at the state level, because the federal opening of data for nursing homes is good, but it doesn’t help out assisted living at all,” Latimer said.
Hare’s association has called for its members to be transparent, but there are no laws prompting them to do so.
The Alzheimer’s Association, Virginia Chapters, last week called on policymakers to implement necessary reporting.
“It starts with, we are trying to ensure people in assisted living and nursing facilities are in a safe environment,” said Carter Harrison, the association’s senior director of government affairs. “We need to know where the baseline is and where there are infections so we can then respond appropriately. Reporting is part of that for the public transparency and so we can find these hot spots and we can get the resources to them.”
Oliver, the health commissioner, has cited several sections of state code that define “person” as businesses and say the health department cannot disclose health information about a person.
Attorney General Mark Herring’s spokeswoman cited attorney-client privilege in declining to provide the opinion or offer more of an explanation.
Oliver said in an phone interview Friday that he had not talked directly with Herring but has had ongoing discussions with members of Herring’s staff who are assigned to the assist the health department.
“If the attorney general were to issue some decision around this that instructed us to act otherwise, I would certainly abide by that,” Oliver said.
Lawmakers interviewed last week either disagree with the interpretation or acknowledge that it’s a correct reading of the code — but a code in need of amending.
“There’s no reason this information shouldn’t be made available to the public,” said Sen. John Edwards, D-Roanoke.
“There has been a bipartisan consensus that this critical information can and should be released to the public. The governor’s opinion has been an outlier,” said Sen. David Suetterlein, R-Roanoke County.
Sen. Scott Surovell, D-Fairfax, said he suspects the Northam administration is taking a conservative approach to its reading of the law, but he doesn’t agree with it.
“The more information the public has, the better government we get and the better operation of these institutions we get. If these institutions knew this data was releasable and would be released, I would think they would take better measures to ensure their customers don’t get infections and die,” Surovell said.
Northam plans to call the General Assembly back to Richmond in August for a special session to address the upheaval that the pandemic has had on the state budget.
It is possible they could allow other bills to be discussed. If not, the issue would need to wait until the regular session in January.
“We need to take a good long look at that to ensure that we protect people,” said Del. Sam Rasoul, D-Roanoke. “The system should be serving people, not these institutions.”
Del. Mark Sickles, D-Fairfax, chairman of the Health, Welfare and Institutions Committee, said he is drafting legislation.
“I take Northam’s people at their word that they believe their interpretation is the law, so if that’s the case, we need to change the law,” Sickles said. “I think at this point, anybody considering using a nursing home would want to know the history of it and what they’re doing about it now.”
Northam has said he could support amending the code to allow for naming the homes, but it would depend on the bill’s language.
The nursing home and assisted living industry has donated a substantial amount of money in recent years — more than $1 million each year, according to the nonpartisan Virginia Public Access Project — to lawmakers and political action committees.
Northam’s PAC, The Way Ahead, has accepted $48,000 from the nursing home industry since 2018. Other legislators have accepted tens of thousands of dollars each from the industry in the past few years.
Legislators who have been vocal about wanting to change the law said they aren’t anticipating immense pushback from the nursing home industry. A few of them said they haven’t heard from anyone in the nursing home industry asking them to reconsider their position.
“I don’t expect — and I could be naive here — but I don’t expect a lot of debate on the big picture of whether we should be more open with information with this situation we have,” Sickles said.
Staff writer Amy Friedenberger contributed information to this story.
This article was written with the support of a journalism fellowship from the Gerontological Society of America, Journalists Network on Generations and the Retirement Research Foundation.