It may come as a surprise that the nursing home industry has spent over $4 million on federal lobbying over the last year and employs at least twelve full-time lobbyists, according to POLITICO. These lobbyists have now been tasked with a new challenge: protecting the nursing home industry from coronavirus-related lawsuits. Recent legislation passed in New York shields nursing home executives from civil and criminal liability concerning allegations of COVID-19 negligence.
The American Health Care Association, which represents nursing homes, argues that it would spell disaster if nursing homes were held liable for resident deaths from coronavirus. But many homes have long been cited for poor infection control and other problems; the pandemic has only brought their failures to light. To make matters worse, residents may now be more vulnerable to abuse because family members (who might witness neglect and abuse and reported it) are no longer allowed to visit. The Centers for Medicaid and Medicare Services (CMS), which regulates nursing homes on the federal level, stopped family visitation on March 13, 2020.
So, what happens if a resident (or more likely, the family of an ill or deceased resident) wants to sue a nursing home for negligence, abuse, or neglect related to COVID-19? The answer: they may not get far in their quest for justice. First, the Trump administration rolled back Obama-era protections that supported a nursing home resident’s right to sue. Trump’s policies prioritize arbitration, and advocates for the elderly are pushing to restore the right to sue.
The advocates’ efforts may not mean much, however, because, secondly, at least 20 states have already moved to limit nursing home liability in the wake of COVID-19. New York is among them. Gov. New York recently signed new measures to limit nursing home liability. Article 30-D of the Public Health Law (Emergency of Disaster Treatment Protection Act) grants nursing home executives legal immunity from COVID-19 negligence claims. Some politicians have since come under fire following allegations that they have been easily swayed by the nursing home industry, which supported his gubernatorial campaign. Greater New York Hospital Association, which owns some nursing homes in addition to hospitals, donated $1 million to politicians in 2018, according to Fox News. Now that donation, as well as three other donations from hospital executives, are under scrutiny in light of this new legislation, which protects nursing homes from litigation. The legislation has also relaxed recordkeeping requirements for nursing homes and hospitals. Without this documentation, it is harder to prove what facilities did or didn’t do to protect patient well-being during COVID-19. Yet a spokesperson for New York State has stated that “no one is shielded from liability for gross negligence, or intentional criminal conduct.” But nursing home neglect can be insidious, like failing to regularly implement a strong infection control program, something for which countless homes have been cited even before the pandemic.
During at least one of his press briefings, Gov. Cuomo has said that “nobody” can be held responsible for coronavirus deaths. He maintains that the legislation will protect healthcare workers. But New York State Assembly Member Ron Kim disagrees. He asserts that in mid-March 2020, upon realizing that they could not protect residents from COVID-19, nursing home executives pushed Gov. Cuomo to include a provision in the state budget that would shield nursing homes from liability in the event of COVID-19 deaths. The budget provision, which Assembly Member Kim asserts was passed “in secrecy”, states that officials “shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing healthcare services” to deal with the pandemic. Assembly Member Kim is now pushing for legislation that would repeal this provision and hold nursing homes accountable.
If your loved one has been abused or neglected in a nursing home and you’d like to hold the home accountable, don’t hesitate to contact a nursing home abuse attorney today. Call (877) 238-4175 or email firstname.lastname@example.org for your free case consultation.