Despite a recent GAO report detailing persistent infection control violations at nursing homes throughout the United States, many states are waiving liability for these facilities during the COVID-19 pandemic.
To date, at least 20 states have issued executive orders or enacted legislation temporarily absolving long-term care and assisted living facilities unless “gross negligence” or “willful misconduct” can be proven.
Deaths in long-term care facilities, whose residents can be most at risk from the novel coronavirus, account for at least half of COVID-19 deaths in 18 states (as of May 18), according to data from the Kaiser Family Foundation. One-third of all COVID-related deaths in the U.S. were among nursing home residents and workers, The New York Times recently reported. With almost every such facility on lockdown and families, visitors and ombudsmen barred from visiting, advocates charge that little can done to hold facilities accountable aside from the media. One example is a package by ProPublica that found that many homes put residents at unnecessary risk of preventable infections.
Although the Centers for Medicare & Medicaid Services (CMS) is focusing its inspections on infection control and prevention, staffing shortages, lack of personal protective equipment, and even outright violations are being ignored or result in mere wrist slaps, Toby Edelman, a senior policy attorney with the Center for Medicare Advocacy (CMA), said in a telephone interview.
“There’s no consequences, no enforcement,” Edelman said. “So facilities can take the risk that it won’t even be identified because they’re going in quickly and they’re doing a sample. And even if they cite it, most of the time, they’re going to call it no harm, and there will be no penalty. It’s ridiculous.”
A recent CMA report concluded: “Granting broad immunity to nursing facilities under these circumstances increases the enormous risks that residents are already facing. Further, granting such immunity also fulfills the nursing home industry’s longstanding efforts to avoid accountability by preventing litigation.”
The report provides a state-by-state breakout of executive orders and legislation temporarily exempting facilities from liability. Gross negligence or willful misconduct can be difficult to prove under normal circumstances, let alone when outside observers are not allowed inside, Edelman said.
“For the bad actors, the management, the owners, the real estate investment trusts that own the property and don’t care about what’s happening, this is like heaven on earth,” she said. “No rules, no oversight, and more money and immunity. Really, how is that possible? How are we saying that’s acceptable? It’s just terrifying.”
Liability waivers further complicate investigations by state and local authorities into multiple deaths at nursing homes, such as those in Kirkland, Wash. and northern New Jersey. Many of these facilities have a history of problems, as Jordan Rau and Anna Almendrala reported for Kaiser Health News.
Geriatrician Michael Wasserman, M.D., agrees that assisted living facilities, nursing homes and other congregate living facilities should have expanded liability protection during this time. In addition, health care professionals in these facilities deserve protection beyond that already afforded to physicians and hospitals against negligence claims arising from the COVID-19 pandemic. That this does not mean that such institutions and professionals should have blanket protection from neglect or willful misconduct that results in patient harm or death, he added.
Wasserman, who also is president of the California Association of Long Term Care Medicine (CALTCM), expressed that opinion in a May 5 letter to Gov. Gavin Newsom. The association represents the state’s skilled nursing facility medical directors, physicians, nurse practitioners, physician assistants, and other health care professionals providing care in nursing homes, assisted living communities, and other post-acute and long-term care settings.
“To be clear, we do not seek an order granting immunity for willful misconduct,” Wasserman wrote. “We merely request that ordinary negligence causes of action arising out of the circumstances, including unavoidable shortages of equipment and staff, created by COVID-19 in our care settings, be excluded from litigation.”
Federal exemptions and violations
Facilities may also be exempt from some federal liability under the Public Readiness and Emergency Preparedness Act, (PREP), which is retroactive to February 4, 2020. Nursing home associations have requested HHS Secretary Alex Azar to provide “the fullest extent of legal immunity available under the law in connection with their efforts in responding to COVID-19, including the immunity provided under the PREP Act.” However, there is no immunity against federal enforcement actions, whether civil, criminal, or administrative, according to the HHS General Counsel.
“Regulations about standards of care evolve and change rapidly (and) providers’ access to needed personal protective equipment and testing is limited and often insufficient,” Katie Smith Sloan, president and CEO of Leading Age, an association of non-profit providers, including nursing homes, said in an emailed statement. “Our members are working hard to do the right thing and are focused on their missions of providing care.”
States recognize that providers require legal protection as a result of actions related to combatting the COVID-19 pandemic due to the rapidly changing natures of this virus and the changing state and federal guidance, according to Sloan. The organization is pursuing protections on the federal level with a coalition asking for uniform and consistent relief as well.
By law, every nursing home receiving Medicare or Medicaid payment must undergo a standard survey during which teams of state surveyors conduct a comprehensive on-site evaluation of compliance with federal quality standards. These surveys must occur at least once every 15 months, with a statewide average interval for surveys not to exceed 12 months. The GAO report found that 82% of inspected nursing homes were cited for infection prevention and control deficiency in one or more years from 2013 through 2017.
Violations ranged from improper hand hygiene to failing to implement preventive measures during an infectious disease outbreak, such as isolating sick residents and using masks and other personal protective equipment to control the spread of infection, according to the review. About 40% of surveyed homes were cited during 2018 and 2019. Almost all deficiencies (99%) were cited as “not severe,” meaning they posed no actual harm or potential for minimal harm.
But these are precisely the types of deficiencies that, if they had been taken care of, would have helped mitigate severe outbreaks, Edelman said.
Meanwhile, the pandemic requires all providers to take unusual measures in a difficult time amid a shortage of personal protection equipment, beds and other supplies, according to Wasserman, yet they still need to provide optimal care,
“We at CALTCM agree that support must be given to our providers to make appropriate decisions under these difficult circumstances without fear of excessive legal action, providing their conduct does not constitute willful misconduct,” his letter to Governor Newsom said.
Wasserman, who has been a geriatrician for more than 35 years in a variety of roles, including as a nursing home administrator, said in a telephone interview that he knows of managers and staff who should have been held liable for egregious actions that resulted in patient harm.
Wasserman said that he would defer to lawyers about the language in statutes or regulations that extend immunity from liability, but notes that he has heard from colleagues “who are scared to death that if someone dies of COVID-19, they’re going to get sued.”
Researchers will likely find that at least 250,000 seniors could die from the coronavirus in nursing homes and assisted-living facilities, he added. “That means there could be a quarter of a million potential lawsuits,” he said. “That can’t happen because, if it does, it will destroy the industry.”
He is in favor of some liability protections but agrees that the behavior of some administrators has caused patient harm during the pandemic, and they should be held legally liable.
“As a clinician, when it comes to the immunity issue, there are two sides to this story,” he said. Some patients will die during the pandemic simply because they are old, frail, and susceptible to the deadly virus, he said, “But also as a clinician, I do not want to see facilities get away with neglect or willful misconduct.”
Senate Majority Leader Mitch McConnell (R-Kentucky) reportedly wants to include liability protection for nursing homes in the next stimulus package, the Wall St. Journal reported. However, liability protection only goes so far, according to this Bloomberg Law article. Insufficient staffing or lack of infection control practices could be enough to initiate a negligence claim.
Not all states are releasing case data from individual nursing homes, but you may be able to obtain some information by city or county. In addition to infection control, many facilities struggle with staffing issues. You can cross-reference updated data from the Long Term Care Community Coalition. They found national staffing averages were well below the amount of time needed to ensure that residents receive sufficient clinical care and “have exacerbated issues in facilities nationwide before and during the pandemic.