COVID-19 has swept the nation’s nursing homes in dramatic fashion. Although equipment shortages and inadequate testing have strained the U.S. healthcare system as a whole, nursing homes have been particularly hard hit. Statistics released May 7 by the Kaiser Family Foundation reveal nearly 25,000 COVID-19 nursing home deaths.

Long plagued by a tarnished reputation for questionable care, the nursing home industry has grown increasingly concerned about a potential onslaught of COVID-related lawsuits and has begun pushing for legal protection from what it says are crisis conditions beyond its control.

“Now the industry is forging ahead with a campaign to get other states (in addition to New York) 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,” New York’s WABC-TV reported.

To date, 16 states have enacted some type of limitation on nursing home lawsuits and the list is likely to grow:

  • Alabama
  • Arizona
  • Connecticut
  • Georgia
  • Illinois
  • Kentucky
  • Massachusetts
  • Michigan
  • Mississippi
  • New Jersey
  • New York
  • Nevada
  • Pennsylvania
  • Rhode Island
  • Vermont
  • Wisconsin

States being targeted by nursing home lobbying groups include California, Florida and Missouri. 

New York Led The Way

New York state’s nursing home immunity law, the Emergency Or Disaster Treatment Protection Act, passed in an April budget bill following a March 23 executive order, is the nation’s first and most sweeping, the only law to provide criminal as well as civil immunity, as reported by Insurance Journal. The law gives legal protection to “any health care facility or health care professional” against legal liability acting “in response to or as a result of the COVID-19 outbreak,” as reported by Law360. The law loosens record-keeping requirements for facilities and provides legal immunity to health care providers acting in good faith. 

New York’s legislation protects nursing homes from claims of understaffing, shortages of medicine or personal protective equipment, or negligence. Lawsuits are still allowed in cases of gross negligence, reckless misconduct, or intentional, malicious harm. While these exceptions may seem like safeguards, one attorney representing New York nursing homes told Law360 that plaintiffs rarely win such cases.

Nursing Home Immunity Sparks Controversy and Concern

Nursing home legal protections have elicited a polarizing response. On the one hand, nursing home administrators have expressed a sense of relief for immunity from liability when their staff fall ill or don’t come to work. They also point to state and federal governments’ failures to provide testing kits and protective equipment as the true culprit, as reported by Law360.

“I understand the reaction to want to place these protections,” New Jersey Long-Term Care Ombudsman Laurie Facciarossa Brewer told MedTruth. (A long-term care ombudsman is an officially appointed independent advocate for long-term care residents.)

Brewer said that since criminal action can still be taken (in New Jersey), nursing homes are not overly incentivized to neglect residents. Additionally, Brewer stated that there is not just one type of nursing home and that some nursing homes were inadequately caring for residents before the pandemic as well as in the thick of the crisis.

On the other hand, for instance, senior rights activists in New York have expressed alarm over the alleged erosion of accountability “in a state nursing home system that has long been plagued by short staffing and lax oversight” according to Law360. Richard Mollot, a member of the New York Long Term Care Community Coalition, said that it’s “just not acceptable that you’re going to put people in harm’s way and then have there be no accountability.”

Diane Menio, executive director of the Pennsylvania Center for Advocacy for The Rights & Interests of The Elderly (CARIE), is opposed to her state’s nursing home immunity laws. 

“(Nursing home) residents have seen staff moving from the COVID unit to other units” and “residents have seen staff not using PPE (personal protective equipment),” Menio told MedTruth.

Menio, whose Philadelphia-based organization sent a letter to Pennsylvania Gov. Tom Wolf expressing concern over a potential nursing home immunity law, said that “in the best of times, (nursing homes) don’t have the proper staffing or resources to take care of people.” 

This immunity bill “takes people’s civil rights away,” she said.

Menio also drew attention to issues surrounding a lack of visitors, a sentiment echoed by Brewer. 

“One of the problems we’re having now is the oversight they’re having ordinarily is not happening” and that “We don’t want to take civil rights away from our most vulnerable people,” Menio said.

At publication, the American Health Care Association and National Center for Assisted Living had not responded to MedTruth’s request for comment. AHCA/NCAL is an industry association representing more than 14,000 nursing homes, assisted living communities, sub-acute care centers and homes for individuals with intellectual and developmental disabilities.

Loved Ones Facing Uncertainty

As nursing homes continue to combat the COVID-19 crisis, the families of residents are left in the dark, wondering if these immunity laws will permit nursing homes to do their best without fear of punishment, or whether this immunity will grant impunity to an industry increasingly run for profit. 

Unfortunately, as with any crisis, there are no easy answers in the day-to-day struggle to protect these vulnerable nursing home residents.