It is a fight to level the playing field to be able to compete for jobs and careers on the basis of skills and make available apprentice training to all. In 1973 Al Percy launched a class action lawsuit to give workers like him a chance to better their lot in life. It would also ensure the availability of skilled workers to build the infrastructure of the future.
Case 1:21-cv-01421-NGG Case MDL No. 3011 Document 1 25-6 Filed 03/17/21 Filed 06/24/21 Page 54 Page of 154 of PageID 154 #: 310 384. Long Island seemed well-prepared for the coronavirus in early March, with movable walls to seal off hallways for the infected. But after the state order, a trickle of recovering COVID-19 patients from local hospitals turned into a flood of people. Infections from persons being shipped back from hospitals to nursing homes, exposing both staff and patients to infection. 385. The State Officers panicked in March, thinking that the hospitals were going to be overrun and said that they had to ship infected but recovering people out to make way for an expected huge surge. The surge fell short of the expectations, there was not any change in policy to accommodate the reality of the circumstances, there was no overload of the hospitals. The State Officers were relying upon their own evaluations, clearly bad policy by the State Officers. 386. The State Officers covered up the blunder by saying that the workers at the nursing homes, the staff, were the persons who brought the virus into and contaminated the nursing homes, alleging that it was not the patients who left the hospital. 387. The OAG reported data linking the number of nursing home deaths to the admissions policy contained in the March 25, 2020 which also prohibited nursing homes from requiringbCOVID-19 testing as a criterion for admission. This phenomenon was compounded by both the March 21 directive that largely paused the testing of downstate residents, and the under-reporting of nursing home deaths generally. AG Report page 37. 388. [Footnote 43 AG Report] DOH, Advisory: Hospital Discharges and Admissions to Nursing Homes, March 25, 2020 DOH Revised Report at pp. 4-5. AG Report page 71. 389. [Footnote 45 AG Report] While some commentators have suggested DOH’s March 25, 2020 guidance was a directive that nursing homes accept COVID-19 patients even if they could not care appropriately for them, such an interpretation would violate statutes and regulations that place obligations on nursing homes to care for residents. For example, New York law requires a nursing home to “accept and retain only those residents for whom it can provide adequate care. “See 10 NYCRR § 415.26(i)(1)(ii). AG Report page 72. 390. The CDC's guidance at the time of the March 25, 2020 state order was that COVID-19 patients who are medically stable can be discharged from a hospital to a nursing home, but only if the nursing home can implement all recommended infection control procedures. 391. The March 25, 2020 advisory has been removed from the state website, and the state’s directive to nursing homes is now much different. DOH issued an executive order on May 10, which states that hospitals "shall not discharge a patient to a nursing home, unless the nursing home operator or administrator has first certified that it is able to properly care for such a patient." The new order also required that a patient must be tested for COVID-19, and the test must be negative. 54
Case 1:21-cv-01421-NGG Case MDL No. 3011 Document 1 25-6 Filed 03/17/21 Filed 06/24/21 Page 55 Page of 154 55 of PageID 154 #: 311 392. The CDC's guidance at the time of the March 25, 2020 state order was that COVID-19 patients who are medically stable can be discharged from a hospital to a nursing home, but only if the nursing home can implement all recommended infection control procedures. 393. The March 25, 2020 memo did not say anything about making sure that a nursing home can care for a patient before making an admission decision and said they "must comply with the expedited receipt of residents." 394. The CDC's guidance at the time of the March 25, 2020 state order was that COVID-19 patients who are medically stable can be discharged from a hospital to a nursing home, but only if the nursing home can implement all recommended infection control procedures. CMS, a federal agency that regulates nursing homes, issued similar guidance, and also said that preferably, coronavirus patients should be cared for in a dedicated unit. 395. Since the mandate took effect, recuperating patients across New York state have been discharged to nursing homes, especially where the Owner Operator Defendants have facilities in Staten Island, Queens, Brooklyn, Bronx, New York City, and Long Island. 396. Lack of Compliance with Infection Control Protocols Put Residents at Increased Risk of Harm During the COVID-19 Pandemic, AG Report page 17. A facility is required to have an infection control program in which the facility: » investigates, controls, and takes action to prevent infections in the facility; » determines what procedures, such as isolation, should be utilized for an individual resident to prevent continued transmission of a disease; » maintains a record of incidence and corrective actions related to infections. AG Report page 17; » Restricts all visitors except for compassionate care, such as end-of-life situations; » Restricts all volunteers and nonessential personnel; » Cancels all group activities and communal dining; » Screens residents and personnel for fever and respiratory symptoms. AG Report page 18; and » incorporates COVID-19 into written emergency plans [footnote 26 AG Report] and instructions on infection control policies. AG Report page 18. 397. Preliminary investigations indicate that nursing homes significantly lacked compliance with infection control protocols resulted in increased risks to residents at a number of facilities. AG Report page 22. 55
