Faced with 19,000 dead, care homes seek shield from claims of inadequate care

Faced with 19,000 coronavirus deaths and counting, the nation's nursing homes are pushing back against a potential flood of lawsuits with a sweeping lobbying effort to get states to grant them emergency protection from claims of inadequate care.

At least 15 states have enacted laws or governors' orders that explicitly or apparently provide nursing homes and long-term care facilities some protection from lawsuits arising from the crisis.

And in the case of New York, which leads the nation in deaths in such facilities, a lobbying group wrote the first draft of a measure that apparently makes it the only state with specific protection from both civil lawsuits and criminal prosecution.

Now the industry is forging ahead with a campaign to get other states on board with a simple argument: This was an unprecedented crisis and nursing homes should not be liable for events beyond their control, such as shortages of protective equipment and testing, shifting directives from authorities, and sicknesses that have decimated staffs.

“As our care providers make these difficult decisions, they need to know they will not be prosecuted or persecuted,” read a letter sent this month from several major hospital and nursing home groups to their next big goal, California, where Gov. Gavin Newsom has yet to make a decision.

Other states in their sights include Florida, Pennsylvania and Missouri.

Watchdogs, patient advocates and lawyers argue that immunity orders are misguided.

At a time when the crisis is laying bare such chronic industry problems as staffing shortages and poor infection control, they say legal liability is the last safety net to keep facilities accountable.

They also contend nursing homes are taking advantage of the crisis to protect their bottom lines.

Almost 70% of the nation's more than 15,000 nursing homes are run by for-profit companies, and hundreds have been bought and sold in recent years by private-equity firms.

“What you're really looking at is an industry that always wanted immunity and now has the opportunity to ask for it under the cloak of saying, 'Let's protect our heroes,'” said Mike Dark, an attorney for California Advocates for Nursing Home Reform.

“This has very little to do with the hard work being done by health care providers,” he said, “and everything to do with protecting the financial interests of these big operators.”

Nowhere have the industry's efforts played out more starkly than in New York, which has a fifth of the nation's known nursing home and long-term care deaths and has had at least seven facilities with outbreaks of 40 deaths or more, including one home in Manhattan that reported 98.

New York's immunity law signed by Democratic Gov. Andrew Cuomo was drafted by the Greater New York Hospital Association, an influential lobbying group for both hospitals and nursing homes that donated more than $1 million to the state Democratic Party in 2018 and has pumped more than $7 million into lobbying over the past three years.

While the law covering both hospital and nursing care workers doesn't cover intentional misconduct, gross negligence and other such acts, it makes clear those exceptions don't include “decisions resulting from a resource or staffing shortage.”

Cuomo's administration said the measure was a necessary part of getting the state's entire health care apparatus to work together to respond to the crisis.

“It was a decision made on the merits to help ensure we had every available resource to save lives,” said Rich Azzopardi, a senior advisor to Cuomo. “Suggesting any other motivation is simply grotesque.”

Nationally, the lobbying effort is being led by the American Health Care Association, which represents nearly all of the nation's nursing homes and has spent $23 million on lobbying efforts in the past six years.

Other states that have emergency immunity measures are Alabama, Arizona, Connecticut, Georgia, Illinois, Kentucky, Massachusetts; Michigan, Mississippi, New Jersey, Nevada, Rhode Island, Vermont and Wisconsin.

Their provisions vary but largely apply to injuries, deaths and care decisions, sometimes even to property damage.

But there are limitations: Most make exceptions for gross negligence and willful misconduct, and they generally apply only during the emergency.

Toby Edelman of the Center for Medicare Advocacy is troubled that homes are getting legal protections while family members aren't being allowed to visit and routine government inspections have been scaled back.

“Nobody is looking at what's happening,” she said, adding that immunity declarations could make even gross or willful negligence suits harder since homes could argue any deficiencies were somehow tied to the pandemic.

“Everything can't be blamed on COVID-19. Other things can happen that are terrible,” she said.