July 23, 2020

States Move to Shield LTC Facilities from Civil Liability

By Samuel Brooks, Robyn Grant and Michael F. Bonamarte
Will families be able to sue nursing homes after loved ones died from COVID-19?

Will families be able to sue nursing homes after loved ones died from COVID-19?

The novel coronavirus has swept through U.S. nursing homes like a three-alarm blaze, causing mass fatalities as officials struggled to contain it. To date, more than 50,000 residents of long-term care facilities have died from COVID-19 since January 2020.[1] In 42 states, as many as 45 percent of all COVID-19 deaths were in long-term care facilities. In six states -- Delaware, Massachusetts, Oregon, Pennsylvania, Colorado, and Utah -- deaths in long-term care facilities accounted for over 50 percent of all COVID-19 fatalities.[2]

At the Life Care Center nursing home in Kirkland, Washington, at least 35 residents died from COVID-19 in March after the facility held a Mardi Gras party, despite that many residents exhibited severe respiratory illness symptoms and temperatures that registered off the charts. In Richmond, Virginia, a facility with a history of twice as many health deficiencies as other homes in the state reported 35 deaths by April 8, 2020. These fatalities continued to climb for months in facilities all around the country.

Despite these horrific deaths, states are increasingly moving to allow long-term care facilities to escape accountability from civil and, in a few states, criminal liability for negligent acts resulting in the death or harm to a resident. The effort to escape liability, spearheaded by the long-term care industry, took hold even before it became clear that residents of long-term care facilities would suffer most from the COVID-19 outbreak.    

To date, over 26 states have granted some degree of immunity from civil liability to long-term care facilities and health care providers.[3] Three states have granted facilities and providers immunity from criminal and civil liability.[4]  Initially, the majority of states that granted immunity did so through executive orders signed by governors, but increasingly, state legislatures have passed such laws. Although many of the executive orders and laws contain similar language, the breadth and length of immunity varies from state to state. Most of the orders and laws with immunity provisions bar actions alleging ordinary negligence. Those immunity provisions require that the resident or family prove that the facility acted recklessly, willfully or wantonly, or was grossly negligent, with those terms sometimes used interchangeably.   

Pandemic as Cover

For the most part, the executive orders and laws contain language that limits the immunity to the period in which the governor for the state declared a public health emergency due to the coronavirus.  However, this period of time could prove to be years, and would only end when a state’s governor declared the emergency to be over. Further, there are concerns that the industry will use the pandemic as cover to push for future immunity from liability for negligent care.  For years, the industry sought to limit or remove liability for substandard care. Now it is clear that the industry has seized on this public health crisis to pursue that objective.  Advocates for nursing home residents say they are greatly concerned that the industry will seek to make permanent temporary immunity provisions to escape accountability for negligent care that occurs after the COVID-19 crisis ends. For instance, in Ohio, the legislature is considering a bill providing blanket immunity to long-term care facilities for all periods of times when the governor declared an emergency, not just COVID-19.

Congress seems poised to take up the issue. A sweeping bill introduced in May by Tennessee Rep. Phil Roe, M.D., would grant long-term care facilities broad blanket immunity from both state and federal claims of negligence. Senate Majority Leader Mitch McConnell has signaled that any future COVID-19-related relief bill must contain broad immunity provisions for businesses, including long-term care facilities. 

Potential federal legislation raises the prospect of precluding federal and state tort actions and also raises concerns that Congress may bar residents and families from bringing lawsuits regarding discrimination based on a resident’s race or disability. These suits, which generally seek injunctive or declaratory relief, often lead to systemic changes that cannot be addressed in individual tort claims.  Although the House bill does not mention these types of claims, many advocates for residents of long-term care facilities are gravely concerned about this issue.

In its push for immunity, the long-term care industry has sought to portray COVID-19 as an unforeseeable catastrophe that excuses them from their basic standards of care. However, early data show a strong correlation between facilities with a history of poor quality of care and infection control procedures and COVID-19 outbreaks, according to the Centers for Medicare and Medicaid Services (CMS).[5] For decades, residents and advocates have seen a steady decline in quality of care as more homes are bought up by for-profit corporations, which, through cost-cutting measures, seek to maximize profits from long-term care facilities. An analysis of federal and state data  by The New York Times found that for-profit homes trail non-profit homes in many quality of care measures.[6]  The report also said that for-profit facilities were cited for violations at a higher rate than their nonprofit counterparts. Another study directly ties the purchase of nursing homes by investment organizations to decreases in staff hours and staff quality[7].  In May, a U.S. Government Accountability Office report showed that prior to Covid-19, as many as 82 percent of nursing homes in the United States were cited for infection prevention and control deficiencies, with half of those homes having persistent problems.[8]

Profits Vs. Care

Older adults and their families are now seeing the direct result of what happens when profits are put in front of patients’ and residents’ care and wellbeing. The coronavirus has illuminated the devastation of these practices on our nation’s most vulnerable elders. Nevertheless, the industry is now seeking to be excused from its years of cost-cutting and inadequate care by urging states and the federal government to shield them from accountability while residents die alone by the tens of thousands.   

Allowing long-term care facilities to escape accountability for their negligent actions means that residents and families will have no recourse for egregious harm that happens during the COVID-19 emergency.  Consider the impact of these laws and requests in the following two scenarios:

Scenario 1:  A resident with dementia, diabetes, incontinence and limited mobility does not receive the care she needs. She is at risk of pressure ulcers. The facility fails to assist her with eating and drinking, does not keep her clean and dry, and does not reposition her regularly.  She becomes malnourished, dehydrated and develops severe pressure ulcers, which become infected, resulting in sepsis. She is hospitalized and dies from the infection.

Even though this resident’s death is not coronavirus-related, in most states the facility may be able to avoid liability because the death occurred during the COVID-19 emergency. For instance, the New York law makes a superficial attempt to tie immunity to providers responding to the COVID-19 emergency. To avoid liability, the facility could tie its negligent act to its COVID-19 response, however robust or lacking that response was.

Scenario 2:  A resident is living in a facility that has failed to properly train staff in infection control techniques. As a result, staff do not follow appropriate hand hygiene protocols and improperly don and doff personal protective equipment. In addition, the facility does not adequately screen staff for the virus. The resident contracts COVID-19 and dies.  

Even though infection control practices, training and screening are completely in the facility’s control, the facility may avoid liability once again if it is able to make a connection to its response to COVID-19 and demonstrate that it was acting in good faith. These elements -- requiring negligent actions to be tied to a facility’s COVID-19 response and good faith -- are common in many state immunity laws and executive orders. 

State immunity provisions create yet another significant barrier to pursuing legal action: For residents or families to prevail in court, it is likely that they would have to show that the facility’s actions or inactions were grossly negligent or reckless misconduct.  This heightened standard of proof allows facilities to escape accountability for acting carelessly and may have the terrible effect of deterring some residents and families from seeking to hold them accountable. All 26 states that have granted immunity to facilities from liability have included this heightened requirement of proof. 

Discovery and fact-finding will be necessary to determine whether a facility’s actions or omissions, resulting in the death or harm of a resident, stemmed from its response to COVID-19.  Further, determinations of good faith, recklessness or gross negligence will have to be made as part of any trial. All of this must be done in addition to the normal work that goes into prosecuting these incredibly difficult and time-consuming cases. These additional elements may have a chilling effect on the decision of residents, their families, and attorneys to take legal action.

Since the outset of the pandemic, hospitals, nursing homes, and other health facilities have complained of shortages of personal protective equipment (PPE) and sanitation supplies. The long-term care industry says facilities should not be held accountable for their negligence due in part due to PPE shortages. However, long-term care facilities are already afforded civil or criminal liability protections where shortages or other events outside of their control prevent them from obtaining necessary equipment. Facilities that made good faith efforts to comply with standard practices and to obtain necessary equipment, but were unable to do so due to shortages, will already be protected from liability in court. Instead, the industry is asking that all facilities -- whether or not they made good faith efforts to follow accepted practices and obtain equipment -- be excused from the harm their acts or omissions resulted in.

Civil Liability as a Tool

Immunity would impact residents in other extremely serious ways. Liability for inadequate care is not just about money. Civil liability has always functioned as a tool to incentivize long-term care facilities to comply with laws and regulations. For years, federal and state oversight of long-term care facilities has decreased. Often, facilities will choose to pay a federal or state fine in lieu of compliance because it costs them less. However, facilities have long known that care that departs from the accepted standards and results in the harm or death of a resident may result in civil liability, and this knowledge has served as a tool for residents to try and obtain better quality care. To deprive residents of this during this deadly crisis will inevitably lead to facilities’ failed compliance.

Additionally, the need for civil liability is heightened by the pandemic. In pre-coronavirus times, residents were visited by loved ones who paid close attention to the resident’s condition and spoke up when they had concerns. Entities such as the long-term care ombudsman program were able to meet with residents, observe conditions, and advocate on their behalf. And importantly, state survey agencies conducted inspections of homes on a regular basis and responded to complaints. Now, due to the pandemic, CMS has barred families and ombudsmen from entering facilities, and state survey agencies are rarely onsite. Consequently, there is little to no oversight in nursing homes. 

 The sad reality for many people who have lost loved ones in long-term care facilities during the pandemic is that by not being able to hold facilities accountable for their negligence, they will likely never know how their loved one died. Litigation is a vehicle to discover exactly what happened to residents in long-term care facilities. As a country, we have an interest in this information coming to light in part to be better prepared for a future pandemic.

Allowing facilities to escape accountability for their negligence also places nursing home workers at risk, and as a result, the communities in which they live. In its efforts to convince states to grant long-term care facilities immunity from liability for their negligent acts, the industry has disingenuously tried to make immunity about protecting health care workers from such suits. However, these workers are rarely sued for negligence. It is the facility that most plaintiffs seek to hold accountable, not underpaid and over-burdened workers. Granting immunity for long-term care facilities makes workers unsafe because facility owners see fewer reasons to comply with regulations to curb infection risk.

It has also become clear that COVID-19 is having a disproportionate impact on communities of color. A study from Yale found that black people were 3.5 times more likely to die than white people. [9] A recent New York Times article found that the disproportionate impact of COVID-19 on non-whites is true for nursing homes as well.  It said that homes with a significant portion of minority residents were twice as likely to be hit by the coronavirus than homes made up mostly of white residents.[10] Experts have attributed these stark numbers, in part, to racial inequalities in access to healthcare[11].  Consequently, people of color are being harmed more than others in long-term care facilities, and it likely will be people of color who are most impacted by executive orders and laws that prevent nursing home residents from holding facilities accountable for their negligent actions. The result: immunity laws and executive orders perpetuate racial disparities in health care.

A Call to Action

Many lawmakers apparently fail to understand that granting immunity to long-term care facilities eliminates rights and protections of residents who have been seriously injured or killed. To-date, industry lobbyists have dominated the conversation. Lawmakers need to hear directly from long-term care facility residents, their family members and advocates about the critical need to preserve the only remaining avenue available to consumers to purse justice and accountability.

All of us must urge our lawmakers to reject immunity, and instead send a message that our country will not tolerate negligent care of our parents, grandparents, friends, and neighbors. They deserve better. 

About the authors:

Samuel Brooks is a project manager at the National Consumer Voice for Quality Long-Term Care.

Robyn Grant is director of public policy and advocacy at the National Consumer Voice for Quality Long-Term Care.

Michael F. Bonamarte is a partner at Levin & Perconti, Chicago, Illinois, and a supporter of the National Consumer Voice.

[1] As of June 18, 2020:  https://www.kff.org/health-costs/issue-brief/state-data-and-policy-actions-to-address-coronavirus/?utm_source=web&utm_medium=trending&utm_campaign=covid-19

[2] https://www.kff.org/health-costs/issue-brief/state-data-and-policy-actions-to-address-coronavirus/; https://www.kff.org/coronavirus-covid-19/issue-brief/state-reporting-of-cases-and-deaths-due-to-covid-19-in-long-term-care-facilities/

[3] These states are: AK, AL, AR, AZ, CT, GA, HI, IL, KS, KY, MA, MD, MI, MS, MT, NC, NJ, NV, NY, OK, PA, RI, UT, VA, VT, and WI.

[4] These states are: NC, NJ, and NY.

[5] https://www.cms.gov/newsroom/press-releases/trump-administration-unveils-enhanced-enforcement-actions-based-nursing-home-covid-19-data-and

[6] https://www.nytimes.com/2020/05/07/business/coronavirus-nursing-homes.html

[7] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3537612

[8] https://www.gao.gov/products/GAO-20-576R

[9] https://www.medrxiv.org/content/10.1101/2020.05.07.20094250v1.full.pdf

[10] https://www.nytimes.com/article/coronavirus-nursing-homes-racial-disparity.html

[11] https://www.medicalnewstoday.com/articles/racial-inequalities-in-covid-19-the-impact-on-black-communities#What-explains-the-disparities?-And-how-does-racism-play-into-it?-