As residents perish, nursing homes fight for protection from lawsuits

In New York, a powerful lobbying group called the Greater New York Hospital Association, which represents hospitals that in some cases own nursing homes, drafted the legislation that expanded protections for the industries. The association spent nearly $3 million lobbying the New York state assembly in 2019 alone, state records show.

The law specifically states that short-staffing doesn’t qualify as “gross negligence” or other grounds on which a nursing home can be sued.

But some state lawmakers say they weren’t given proper notice about the liability protections, which were passed as a part of the state’s budget bill — and now they have regrets.

“I’m very much opposed to what we enacted, and also not happy with how we did it. It was inserted in the budget as an amendment from the governor in the last hours, or day, or so of our work on the budget,” said New York state Assemblymember Richard Gottfried (D-New York City), chair of the state assembly’s health committee. Gottfried said he’d like the legislation repealed, but expects a “very uphill fight.”

“People can look at this as a technical legal issue, but if your loved one is being mistreated in a nursing home or is the victim of mistreatment or negligence, or if a hospital or nursing home is guilty of health and safety violations, you want something done,” Gottfried said.

Lever, the Cuomo spokesperson, responded that “elected officials cannot be blindsided by language in a bill, unless they don’t read it.”

In California, a coalition of nursing homes and provider groups wrote to Democratic Gov. Gavin Newsom in early April asking for unusually broad protections from liability. The groups, which collectively spent $1.1 million lobbying the state government in the last year, suggested an executive order that would shield them from “any administrative sanction or criminal or civil liability or claim,” unless there is “clear and convincing evidence of willful misconduct,” according to a letter obtained by POLITICO.

Advocates for nursing home patients in California expect Newsom to sign an executive order at some point in the coming days. Newsom’s office did not respond to a request for comment.

And a separate letter to lawmakers sent by nursing home and hospice associations in Connecticut used track changes to amend language suggested by other health care lobbyists so it would mimic nursing homes’ preferred language on legal liability.

In early April, Democratic Gov. Ned Lamont signed an executive order giving civil liability coverage to nursing homes and other health care providers. It did not use the exact language suggested by the associations but gave them a similar level of legal protection.

Other states passing new laws and issuing executive orders providing some level of protection for nursing homes ranged from deep red Alabama and Arkansas to Democratic-led Illinois and Michigan. In Pennsylvania, Democratic Gov. Tom Wolf signed an executive order granting immunity to health care practitioners — but the industry is pushing for broader protections.

“The last thing these providers and those on the front lines should have to be concerned with is the threat of an impending lawsuit,” Zach Shamberg, president and CEO of the Pennsylvania Health Care Association, said in a statement.

But the nursing home industry has consistently received criticism for failing to meet federal standards for measures like proper handwashing and isolating sick residents. The vast majority of nursing homes were cited for deficiencies in infection prevention and control between 2013 and 2017, according to a new federal watchdog report, which noted “many of these practices can be critical to preventing the spread of infectious diseases, including Covid-19.”

“You’ve got facilities full of really sick patients that are cycling in and out of the hospital. It’s going to be a challenge for any lawyer to prove that the specific breach on the nursing home’s part is what caused that person to contract Covid,” said Michael Brevda, a partner at Senior Justice Law Firm, which is pursuing at least eight lawsuits related to coronavirus in nursing homes in New York, Florida and Pennsylvania.

The back-and-forth on Capitol Hill over whether to enact a national liability protection for nursing homes and other industries is proving more complicated.

While Senate Majority Leader Mitch McConnell (R-Ky.) and House Minority Leader Kevin McCarthy (R-Calif.) have already said broad immunity protections for businesses are “absolutely essential” for Republicans to sign off on another coronavirus relief bill, most Democrats are vehemently proposed.

Senate Republicans have not released any public proposals for expanding liability protections. One lobbyist who had seen multiple proposals from the nursing home industry said that, similar to some state laws, the industry had advocated for a high bar for liability, such as cases of gross negligence.

McConnell, along with a top ally, Sen. John Cornyn (R-Texas), is working to craft the legislation, which they say won’t protect bad actors.

“We should not put our health care workers in an impossible situation where we ask them to do everything they can to help and then we punish them by subjecting them to litigation when somebody claims that they could or should have done better,” Cornyn said on the Senate floor last week.

Mark Parkinson, president and CEO of the American Health Care Association, said in a statement to POLITICO, “We encourage states and the federal government to take action to extend immunity provisions to the long term care providers and other health care sectors associated with care provided during the COVID-19 pandemic.”

“Long term care workers and centers are on the frontline of this pandemic response and it is critical that states provide the necessary liability protection staff and providers need to provide care during this difficult time without fear of reprisal,” Parkinson said.

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