March 26, 2021 Features

Congregate Living Facilities and COVID-19

By J. Rita McNeil Danish, J.D.

The COVID-19 pandemic has opened our eyes to the myriad vulnerabilities in congregate facilities — specifically the prison health care system, nursing homes, colleges and universities, as well as the impact on essential workers. The State & Local Government Section of the American Bar Association examined the topic of the impact of COVID-19 on congregate facilities on both residents and staff in a panel discussion during the Section’s Virtual Fall Conference. Moderated by Public Contracting Committee Chair J. Rita McNeil Danish, the program featured experts in each area to speak to the deficiencies and inadequacies of the facilities. 

The program began with a discussion led by Duquesne University School of Law Associate Professor Jalila Jefferson-Bullock, M.A., J.D., on the impact of COVID-19 on prisoners. She identified the number of pandemic-related deaths of federal inmates to convey that the prison health care system is profoundly ill-equipped to handle the needs of inmates during a public health crisis. The presentation shared that prisoner infection rates outpace those of the general, non-incarcerated population by more than 150%, and prisoners are dying four times as often as prison staff who test positive are. Results are far worse for elderly inmates. She emphasized that while COVID-19 afflicts people of all health profiles, its grip on the elderly is the most arresting. 

Though some effort has been exerted, federal prison officials fail to adequately protect the rights of the imprisoned elderly. Prisons, by their very nature, struggle to care for an old and ailing population. This glaring deficiency is rendered indisputable by the novel coronavirus pandemic. Jefferson-Bullock closed by noting vulnerable inmates, especially the elderly, should be released to home confinement forthwith ¬– that anything less is profoundly inhumane and represents a colossal miscarriage of justice. 

Saint Lewis University School of Law Professor Ruqaiijah Yearby, J.D., M.P.H, a member of the school’s Center for Health Law Studies and executive director and co-founder of the Institute for Healing Justice and Equity, presented on the impact of COVID-10 on health care workers. Her presentation discussed the failure to protect health care workers, using the example of the plight of direct care workers that provide care in the residential and home-based settings She identified that most essential workers are employed in health care (30%) and a majority (76%) of all essential health care workers are women. States and localities, which retain the right to protect the health and safety of their citizens, have designated more than 55 million Americans as “essential workers” during the COVID-19 pandemic. Consequently, many women are unable to shelter at home or socially distance themselves from others because they are deemed “essential workers.” Even though these workers are deemed “essential workers,” they have not been provided the employment and safety protections (e.g., paid sick leave, health insurance and workers’ compensation) that are essential to keeping them and their families healthy and safe. 

Our panel’s final presentation was on the impact of COVID-19 on higher education institutions. Professor and Provost for Graduate and Professional Affairs at Touro College Patricia Salkin, J.D., discussed how college campuses are the new COVID-19 hotspots. With the reopening of college campuses in the fall of 2020, in accordance with the executive orders of governors of the respective states, there were new mandates for testing and the implementation of quarantine/isolation housing options and procedures. Challenges were presented with reopening, housing and the ultimate return of students to campuses, who had been home on breaks. Salkin’s presentation identified possible issues related to any future closings or other changes to education and services if spikes in the number of COVID-19 cases require action. Finally, the presentation identified that outbreaks on campus can bring unanticipated loss in revenue, class action lawsuits and loss of confidence in campus leaders.

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By J. Rita McNeil Danish, J.D.

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J. Rita McNeil Danish is a partner in the Chicago and Columbus, Ohio, offices of Taft Stettinius & Hollister, as well as principal of the consulting firm JD2 Strategists LLC.