Nursing Home Immunity - Covid-19

We all know that during Covid-19, none of us were prepared. The high-risk population (elderly) patients posed the biggest risk for complications from the virus and death. If you have ever had a loved one in a nursing home, you know that they are far different than a hospital. The staff is generally patient aids and nursing aides, and usually, there is an RN in charge of the unit. Doctors make rounds very quickly, if at all once a week, and there are no patient and/or resident checkups unless something is brought to the staff's attention, and even then, there is no guarantee your loved one will be seen. If your loved one gets very ill (anything outside something that can be treated with oral pills) will require a hospital visit.


The only time this changes is if there is a rehabilitation section of the nursing home that offers physical, occupational therapy, and/or assistance with ADL (activities of daily living) skills where the patient may be recovering from a stroke, severe illness, and/or cardiac rehab. There are some inpatient rehabs attached to hospitals and some facilities that are commonly tied to nursing homes. In those facilities, the care is generally more sophisticated, and doctors make rounds; there is IV medication and many treatment modalities available, including testing similar to a hospital but even with all of this, still not prepared for a pandemic.


In my home state of New York, we currently have a very serious scandal that they are still investigating. It was when our Governor, Andrew Cuomo, sent covid positive and recovering patients back to nursing homes without the needed resources, skill, space, equipment, and professionals to care for them. Unfortunately, because of this, many died from covid 19, and we still do not have the full number of deaths from this deadly decision because much of the data was and continues to be hidden. The last number I saw is north of 15,000 deaths. The nursing homes that tried to decline taking back covid 19 positive or recovering patients were threatened to lose their license, so they had no choice but to comply, and many died. "New York Post reported a top aide at Governor Cuomo apologized to Democratic legislators for withholding the nursing home data. The newspaper reported Melissa DeRosa said “we froze” out of fear the true numbers would “be used against us” by federal prosecutors." I can tell you if this were any family member, I would be in Albany every day until justice was served, and those who cooked the books made deadly decisions and hid the date from the public. This is an ongoing investigation, and I feel awful for all of those involved.


 

In the early days of the COVID-19 pandemic, wanting to allay concerns of healthcare providers and assure that persons affected by the virus would receive needed treatment, many states enacted liability shields for healthcare providers, including nursing homes. These shields protect nursing homes from civil liability for COVID-19 related deaths and injuries. To avail itself of such immunity, a nursing home must prove its acts or omissions that caused the harm at issue that occurred in the course of providing healthcare services in support of a state’s COVID-19 response. Many immunity orders and laws require good faith on the part of the nursing home and only cover conduct occurring while the state was in a declared state of emergency.


To date, more than half of all states have enacted some form of liability safeguard for nursing homes and other long-term care facilities. Many states conferred these liability shields via executive order, including Connecticut and Pennsylvania, partly due to the exigency and the time needed to enact legislation. Several states, on the other hand, enacted immunity laws via legislation. These states include New York, New Jersey, and Massachusetts. In April, New York granted nursing homes qualified immunity through the Emergency or Disaster Treatment Protection Act, which was included in the state’s budget. Few states have extended immunity to cover criminal liability. The federal government has its own immunity grant for health care providers, embodied in the Public Readiness and Emergency Preparedness Act (“PREP Act”).


Attached is a state immunity chart updated as of June 2021

State_Immunity_Worksheet_2
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Attached here are the definitions, timing of these orders, and exemptions from nursing home immunity. Unfortunately, the burden of proof of negligence will lie with the family and be difficult to prove but certainly not impossible.


State_Immunity_Summary_Final
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Download PDF • 607KB

On March 30, 2021, New York state repealed the Skilled Nursing, Assisted Living, Home Care & Hospice - COVID-19 Immunity Law.


While I'm certainly biased as to why these immunities were made and given that the immunity provision in Cuomo’s budget came 18 months after the GNYHA (Greater NY Hospital Association) delivered $1.25m to the Cuomo-controlled New York State Democratic committee that was supporting the governor’s re-election bid, it is a tragic situation that needs to be investigated, learned from and those that made these rules held accountable for the death of so many elderly people.

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