Concerns Over Giving Nursing Homes Civil Immunity Protections

Health care facilities are asking states to exempt them from legal liability as the coronavirus continues to take a heavy toll. Some advocates say this gives poorly run businesses cover.

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By now, it seems clear that the people most vulnerable to the coronavirus are older adults with underlying health conditions like residents of nursing homes. And while the federal government does not track COVID-19 deaths at these facilities, by some estimates, there have been more than 10,000. So, fearing a flood of lawsuits, nursing homes have been seeking and gaining temporary immunity from potential lawsuits in some states. NPR's Ina Jaffe covers aging, and she has this report.

INA JAFFE, BYLINE: These are unprecedented times, says Cory Kallheim. He's the vice president for legal affairs and social responsibility at LeadingAge, a trade group for nonprofit senior services, including nursing homes.

CORY KALLHEIM: They're dealing with certain situations here that are out of their control.

JAFFE: Kallheim says that health care facilities need immunity from civil suits because of the shortages of both testing and personal protective equipment. Nursing homes don't want to be held legally responsible for a bad outcome that was beyond their control. Also, he says the guidance from scientists and federal agencies is constantly changing.

KALLHEM: We don't have an understanding of how this is spread. We're getting more information as we move forward each day, each week. And it's putting a real tax on what our providers are able to do.

JAFFE: But advocates for nursing home residents say that the immunity measures are just giving bad facilities a free pass. Richard Mollot is the executive director for the Long-Term Care Community Coalition.

RICHARD MOLLOT: Providing blanket immunity to nursing homes for any kind of substandard care, abuse or neglect is an extremely poor and dangerous idea anytime and particularly so in regard to COVID-19.

JAFFE: Because residents are at risk, says Mollot, not just from the virus but because their usual defenders - friends and family and government watchdogs - are barred from facilities.

MOLLOT: When have nursing home residents ever been more vulnerable than at this time? And it's right at this time that we've taken away any mechanism of accountability. And this situation is just particularly outrageous to me.

JAFFE: At least half a dozen states have granted health care providers temporary immunity from civil lawsuits. New York also grants them immunity from criminal liability. Kallheim points out that none of these measures offer protection in cases of gross negligence or willful misconduct.

KALLHEM: To think that the civil immunity is going to protect everybody from all suits I think is not the case.

JAFFE: Nursing homes have been ground zero for COVID-19. There have been numerous reports of facilities with dozens of infections and deaths. What many of them have in common - their most recent health inspections found that they didn't have measures to control infections as required. Richard Mollot says that shows some nursing homes weren't doing their jobs even before COVID-19.

MOLLOT: So the immunity gives them total carte blanche to do as much or as little or whatever they want to do it. And there'll be no repercussions for even significant, abject neglect.

JAFFE: The immunity protections for health care providers and personnel will only last as long as the COVID-19 emergency lasts. What's concerning to both advocates and health care providers is that no one knows how long that will be. Ina Jaffe, NPR News.

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