En español | As the coronavirus death toll in America's long-term care facilities surges toward 30,000, the nursing home industry is aggressively seeking legal protection from aggrieved residents and their loved ones.
In many cases, the industry is getting what it wants.
At least 19 states have enacted laws or issued executive orders that either explicitly grant nursing homes and their workers legal immunity during the pandemic or that appear to do so, according to an AARP tally. While the immunity orders don't protect against gross negligence or willful misconduct, they generally apply to actions — or inactions — that allegedly caused harm, injury or death during the crisis.
Nursing homes say such measures are necessary during an unprecedented public health crisis, arguing that many factors that could lead to a resident's harm are out of their control. “Nursing homes are learning more about the novel coronavirus’ transmission and COVID-19's disease progression and symptoms daily,” said Katie Smith Sloan, president and CEO of LeadingAge, which represents not-for-profit nursing homes, in a statement.
"Regulations about standards of care evolve and change rapidly,” the statement said. “Providers’ access to needed personal protective equipment and testing is limited and often insufficient."
But many nursing home watchdogs say the orders shield the industry from responsibility for their actions during the crisis. “We all want to protect frontline workers,” says attorney Debbie Gough, who has sued nursing homes in New York and New Jersey, “but these immunity bills go farther than that. They protect bad actors as well.”
With nursing homes in lockdown and barring almost all visitors under federal orders, legal accountability is more critical than ever, advocates say.
"There are no visits, no families, no ombudsmen, not many surveyors,” says Toby Edelman, an attorney at the Center for Medicare Advocacy, referring to the types of people usually allowed in long-term care facilities. “Add immunity to that and it's not a good combination for residents. It leaves them very, very vulnerable.”
The nursing home industry is now lobbying for a sweeping federal immunity order, which would shield all of the nation's 15,600 nursing homes — 70 percent of which are for-profit — from lawsuits. And the industry is pressuring states with high COVID-19 death tolls in their long-term care facilities, such as California and Pennsylvania, to join the immunity bandwagon.
Advocates for nursing home residents, meanwhile, are calling for states with immunity orders to rescind them and for other states to resist adopting such measures. And they are working against federal immunity protection.
AARP is enlisting its state offices nationwide in the fight. “Governors across the country will be hearing from us over the coming weeks,” says Elaine Ryan, the organization's vice president for state advocacy and strategy integration. “These things are truly outrageous and an erosion of residents’ rights."
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Existing protections for nursing homes
Many nursing homes experiencing devastating COVID-19 outbreaks — New Jersey's Andover Subacute and Rehab Center I and II, and California's Gateway Care and Rehabilitation Facility, for example — were cited by health inspectors for failing to implement proper infection control prior to the pandemic.
Those facilities are not anomalies; 63 percent of nursing homes were cited for one or more infection-control deficiencies during the most recent two inspection periods, according to a Kaiser Health News analysis of federal records.
Gough wants accountability for “those who, leading into this, had a bad track record and allowed their facility to get hit harder than it needed to because they didn't do what they knew they should do.”
Immunity will make that difficult. That's particularly true in New York, whose immunity order absolves nursing homes of responsibility for keeping certain records during the pandemic. Without those records, Gough says, plaintiffs will be hard-pressed to substantiate even cases of gross negligence.
So far, Alabama, Arizona, Connecticut, Georgia, Hawaii, Illinois, Kansas, Massachusetts, Michigan, Mississippi, New Jersey, New York, North Carolina, Oklahoma, Rhode Island, Utah, Vermont, Virginia and Wisconsin have passed immunity measures for nursing homes. Legislation has been introduced in Minnesota, Missouri and Ohio.
The measures differ slightly from state to state, but most shield facilities from civil claims only, and just for the duration of the COVID-19 emergency.
The American Health Care Association, which is leading the national lobbying effort for nursing home immunity, did not respond to a request for comment.
In Florida, where 20 percent of the country's long-term care deaths from COVID-19 have occurred, there's mounting pressure from industry to pass immunity. Mariano Gracia, an attorney who handles nursing home negligence claims in the state, says laws there already offer protection from frivolous suits.
"Just because you think you have a claim doesn't mean you can go straight to the courthouse and file a lawsuit,” he says. “We have to go through a lot of legal vetting processes already, so there's no need for additional protection."
"[They] are attempting to capitalize on a very unfortunate situation to advance an agenda that they've been pursing for a very long time,” Garcia says, “which is insulation from liability that arises out of their inability to adequately staff, train and supervise their employees."
A push for federal immunity
Last week, the Senate Judiciary Committee held a hearing on general liability during the pandemic, prompting an AARP letter to Congress opposing a federal immunity law for long-term care facilities.
"There are certainly factors that are outside of a nursing home's control, but there are also factors that aren't,” says AARP's Bill Sweeney, senior vice president of government affairs. “There are situations where nursing homes took shortcuts or didn't do what they were supposed to do to protect the safety and health of staff and residents."
"In those instances,” Sweeney says, “the families and residents deserve recourse."
The Judiciary Committee seemed to focus on whether national standards for liability are needed to encourage businesses to reopen.
"Seems to me that one primary goal out of this hearing is to get the standards in place for business ... so people can understand what's expected of them,” said Chairman Lindsey Graham, a South Carolina Republican. “And if they do what's expected, they don't need to worry about getting sued."