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Immunity for Nursing Homes

COVID-19 is a global disaster, the scale and extent of which is unprecedented in most of our lifetimes, with the possible exception of those few people alive today who survived the 1918 Flu Pandemic. That said, it’s not as if the need to contain infectious diseases is something skilled nursing facilities (SNFs) could not have anticipated. Prior to COVID-19, by law, and to be licensed and certified by the California Department of Public Health, SNFs must always comply with a wide range of standards and guidelines to track, protect, and prevent infectious diseases in their facilities.

Of course, operators of facilities will always look for excuses as to why residents were exposed to, and died from, infectious diseases regardless of COVID-19. The operators will claim that  problems could not be prevented, because no one could have foreseen such a terrible virus as COVID-19. The fact that the facilities were understaffing their buildings, did not follow proper hygiene protocols, did not quarantine infected residents, and did not follow guidelines for dealing with infectious diseases could be safely swept under the rug. At least that’s what the operators of such facilities are hoping and lobbying for – so far with reasonable success.

Last week, the Governor of Massachusetts filed legislation to give health care workers liability protections during COVID-19. Yesterday the State of Vermont issued a similar executive order. Add to that three other states, New York, New Jersey, and Illinois that are giving varying degrees of immunity to SNFs whose residents die during the current epidemic.

Now comes Florida’s largest advocacy group for long-term care providers requesting that the Governor provide “immunity from any liability, civil or criminal” for nursing homes, hospitals, and other facilities. And why not? If the current crisis has done anything it has sensitized people to the idea that infectious diseases spread rapidly and often through no fault of anyone. Anyone can be an inadvertent carrier who unwittingly spreads disease to others. It seems perfectly reasonable that hospitals and skilled nursing facilities shouldn’t be blamed when residents die from a global pandemic.

Yes, it seems reasonable until you critically analyze the situation. Hospitals and skilled nursing facilities that follow procedures and protocols are used to dealing with highly infectious diseases. Their nursing staff is trained to handle such problems because such events happen all the time. Disaster preparedness is one of the main reasons why people want to send their at-risk relatives to live in a skilled nursing facility in the first place. Such institutions are supposed to be equipped to deal with outbreaks of seasonal flu, or worse. They are funded precisely because they are supposed to deal with infectious diseases. In theory, a skilled nursing facility ought to be the safest place for an at-risk senior to be living right now. For multiple reasons, it’s not.

The facilities where residents are dying from COVID-19 are the ones that were understaffed, poorly managed, poorly trained, and ill-prepared. The disease caught them off guard because they didn’t follow procedures. Administrators used funds long allocated to fight and prevent infectious diseases to pad their bottom line. Money not spent on adequate staffing and preparation goes straight to profit.

These very same facilities are now trying to justify their poor management by asking state governments to give them immunity from prosecution. Not so fast! Before any such rules, regulations, or laws are passed to limit liability, lawmakers should be asking an obvious question: Weren’t you supposed to be planning and preparing for epidemics as part of your licensing requirements? Until SNFs can come up with a compelling answer to that one, we need to keep the current regulations in place.

Worse – the nursing home industry is getting an additional $1.5 Billion dollars as part of the federal COVID-19 stimulus plan, with no strings attached, while already getting paid by Medicare and Medicaid too for the services they are already providing.

The world will not become a safer place when we start giving immunity to reckless lawbreakers.

Attorney Wendy York of York Law Firm specializes in prosecuting elder abuse and wrongful death cases. For further information, please visit us at www.yorklawcorp.com.