Liability creates accountability. And liability changes behavior.

By Laura Karas for Harvard blog.

Immunity from liability disincentivizes nursing homes from expending the time, money, effort, and resources needed to keep residents safe.

The COVID-19 pandemic has highlighted the stakes of the issue: granting legal immunity to nursing homes for COVID-related care is tantamount to leaving our most vulnerable out on the street corner.

According to data from the Center for Medicare and Medicaid Services, there have been over 216,000 confirmed COVID-19 cases and over 53,000 COVID-19 deaths among nursing home residents.  These figures are likely underestimates, as nursing homes have had to adjust to federal reporting guidelines.  Recent data indicate that deaths in nursing homes are on the rise in states with COVID-19 resurgences.

Kimberly Hall North in Windsor, Connecticut, was one of many nursing homes ravaged by COVID-19.  Reports in June of this year cited 47 deaths among its 138 residents, a death toll exceeding one-third of the nursing home’s resident population.

Many States Have Granted Nursing Homes Immunity from Liability

Connecticut, which was hit particularly hard by COVID-19 in the nursing home setting, acted quickly to grant immunity to nursing homes, shielding them from liability in a move that has threatened the health and safety of residents across the state.

Relevant portions of Connecticut’s executive order read as follows (emphasis mine):

any health care professional or health care facility shall be immune from suit for civil liability for any injury or death alleged to have been sustained because of the individual’s or health care facility’s acts or omissions undertaken in good faith while providing health care services in support of the State’s COVID-19 response, including but not limited to acts or omissions undertaken because of a lack of resources, attributable to the COVID-19 pandemic, that renders the health care professional or health care facility unable to provide the level or manner of care that otherwise would have been required in the absence of the COVID-19 pandemic . . .

Connecticut was not alone in granting legal immunity to nursing homes; more than a dozen other states have imposed similar protective measures.  Although immunity may make sense for hospitals or clinics that treat coronavirus patients, the inclusion of nursing homes in the definition of a “health care facility” subject to immunity was unwarranted and dangerous.

Nursing homes are fundamentally different from hospitals or clinics; the former are not designed to treat the acutely ill but rather to provide long-term care to individuals unable to live independently and care for themselves.

Nursing home residents’ close living quarters, advanced age, high frequency of comorbid health conditions, and need for personal care all demand stringency in precautions, frequent point-of-care testing for residents and employees (even those who are asymptomatic), and rapid and effective containment efforts when new COVID-19 cases are identified.

When one-third of a nursing home’s population is decimated in a matter of months, it points to failed outbreak management. COVID-19 deaths due to a failure by nursing homes to take adequate preventive and outbreak response measures should find no protection under the laws of our nation.

Over 30 years ago, in response to findings of rampant abuse and neglect of nursing home residents, Congress passed the Nursing Home Reform Act of 1987, which mandates that skilled nursing facilities “provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.” 42 U.S.C. § 1395i-3(b)(2).  If evidence exists that nursing homes failed to take the proper preventive steps to avert a COVID-19 outbreak, then they violated their legal duty under the Nursing Home Reform Act, and should be held liable.

States, Facing Pressure to Hold Nursing Homes Accountable, Show Signs of Reversal

Under pressure, states have begun to reverse immunity orders. In New York, state lawmakers introduced bills to repeal liability protections for nursing homes soon after the passage of New York’s Emergency or Disaster Treatment Protection Act in April 2020, which had granted nursing homes broad immunity. In early August, Governor Cuomo did away with immunity for hospitals and nursing homes vis-à-vis care not related to COVID-19, but facilities remain shielded for care provided in the course of COVID-19 treatment.

Notably, New York State’s original grant of immunity to nursing homes was one of the most sweeping in the country; nursing homes were only liable for gross negligence, intentional criminal or reckless misconduct, and intentional infliction of harm, and were not liable for harm resulting from a “resource or staffing shortage,” such as a lack of personal protective equipment.

Asserting Nursing Home Residents’ Enforceable Rights

Families and nursing home residents in Connecticut, New York State, and other states with similar immunity orders can take action: they can encourage the Attorney General to bring suit against state governments that have deprived nursing home residents of their legal rights under the Nursing Home Reform Act and the Civil Rights of Institutionalized Persons Act of 1980 (CRIPA, 42 U.S.C. § 1997 et seq.), a law designed to protect institutionalized persons in settings like nursing homes, correctional facilities, and other forms of residential care.

CRIPA empowers the Attorney General to investigate and sue when a “pattern or practice” deprives residents of their constitutional or federal statutory rights.  Private, for-profit nursing homes may fall outside of the purview of CRIPA, which applies only to institutions owned, operated, or managed by a U.S. state or political subdivision of a state, or which provide services on their behalf.

In late August, the Department of Justice sent requests to New York State, New Jersey, Pennsylvania, and Michigan to gather data on COVID-19 infections and deaths at state-run nursing homes as a step toward determining whether a federal investigation under CRIPA is warranted.  At issue here is whether states ordered nursing homes to admit patients with confirmed or suspected COVID-19, and whether states prohibited nursing homes from testing for COVID-19 prior to admission.

The Bottom Line

As Gregory Stroud writes in an editorial for The Connecticut Examiner, “immunity from civil suits is not simply a matter of dollars and cents.”  Liability creates accountability.  And liability changes behavior.

The good news is that deprivations of legal rights have a remedy, and suits against state governments for their imprudent and right-infringing immunity orders could provide a path to justice for the vulnerable and high-risk nursing home population.