Forbes: Nursing Home Immunity “An Appalling Abuse of the Law”

A June 12 report by the Centers for Medicare and Medicaid Service disclosed that 31,782 nursing home residents died as a result of COVID-19 as of May 31, 2020. This accounts for about one-third of the known COVID-19 deaths in the United States, according to a column in Forbes, with “the highest number of deaths” occurring in the states of New York, New Jersey, and Connecticut. The column notes that these states “were among the first to grant civil immunity to nursing homes,” a grant that “effectively eliminates civil legal redress for and on behalf of nursing home residents who died due of COVID-19 due to negligence and abuse.”

According to the Forbes columnist, the granting of immunity to nursing homes that may not have established “reasonable protections for vulnerable residents” in the face of the coronavirus pandemic is “an appalling abuse of the law.” Such grants have occurred in roughly 20 states, with Congress preparing to take comparable federal action—even though, the columnist notes, no serious inquiry has been held into nursing homes’ handling of the coronavirus pandemic. Broad immunity for nursing homes would impede the ability of victims’ family members to uncover what happened to their loved ones “who died during a lockdown, alone and behind closed doors.” It also removes the broader public’s ability to hold “bad nursing homes operators accountable for patient abuse and neglect.

Such a grant of immunity is “a blank check,” the column argues, asking: “who is the beneficiary?” The answer may be for-profit corporations, which comprise about 70% of the 15,600 nursing home facilities in the US. These corporations and their owners, who “owners have been criticized for using business models that squeeze profits out of nursing homes by leaving facilities poorly staffed and under-resourced,” are likely to benefit most from immunity waivers, according to Forbes.

While there has yet to be any broad public accounting of what led to so many nursing home deaths in the US, the columnist writes, Canada may offer some ideas. Canadian Armed Forces personnel who offered relief to at least 30 homes in April found conditions that included the following: COVID-19 patients moving “freely among non-positive patients,” staff wearing the same personal protective equipment in units with COVID-positive residents and units without, a “culture of fear to use supplies because they cost money,” the dispensing of medications weeks after they expired, rotten food, pestilence, residents who did not receive three daily meals, and residents “left for hours in soiled pads and diapers.” The columnist notes that a New York Times investigation found that a New York nursing home that suffered more than 100 resident deaths allowed employees to wear the same PPE when dealing with COVID-positive and non-positive residents, which cause “avenues for the virus to spread.” According to Forbes, a healthcare provider’s failure to separate positive and non-positive residents “could easily rise to the level of neglect.”

And yet immunity waivers in states like Connecticut protect these facilities and their owners from liability for such neglect, in some cases going as far to protect any “health care professional or health care facility” from liability for “any injury or death” resulting from either an “act” or an “omission” that occurred while care was being provided in relation to the COVID-19 pandemic. Which could prevent nursing homes whose neglect led to resident deaths from ever being held accountable. “It’s the equivalent of signing a blank check with no name and no ending date,” Forbes concludes.

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