By Abigail Abrams, TIME, May 14 2020
It was 11 p.m. on a Sunday in early May when Penny Shaw, a 76-year-old in Braintree, Massachusetts, picked up the phone and reported her nursing home to the local police. The staff on duty had just told her they couldn’t provide any of their usual care because they had no personal protection equipment (PPE). Since the coronavirus pandemic hit, the staff is supposed to wear PPE when helping all patients, but only the home’s administrator, who doesn’t work late on weekends, could give it out. So the certified nursing assistants wouldn’t be able to get masks, gloves or gowns until the morning.
Shaw was angry that her facility had put its staff, and her fellow residents, in that position, and so she called the cops. “They always make poor decisions and they continue to make poor decisions,” Shaw says. “I have to speak up for myself and other people.”
Since a nursing home in the Seattle area became one of the first major U.S. coronavirus outbreaks in March, nursing homes’ residents and staff have borne a heavy load of the pandemic’s burden. Deaths in long-term care facilities now make up at least one third of coronavirus fatalities in most states. Nursing home employees have become first responders to a disease whose contours are still unknown, though more than 80,000 Americans have died. But while the U.S. government’s slow and patchy response to the pandemic has made nursing homes’ job harder, so have the problems the industry faced long before COVID-19 erupted.
Some nursing home residents, like Shaw, are just angry at the way their facilities are handling the pandemic. Others are already starting to take legal action, suing nursing homes for neglect, abuse and wrongful death. To protect itself, the nursing home industry has launched a broad and successful lobbying effort to secure immunity from potential lawsuits over the way facilities are treating patients during the pandemic, a move consumer advocates say raises long-term questions about the oversight of an industry that has racked up standards violations for years.
Nursing homes say the legal protections are necessary for staff to do their jobs as the pandemic has created an unprecedented situation that has left them struggling to care for a high-risk population while managing PPE, testing, frequently changing state and federal guidance and staffers calling in sick. “Long term care workers and centers are on the frontline of this pandemic response and it is critical that states provide the necessary liability protection staff and providers need to provide care during this difficult time without fear of reprisal,” Mark Parkinson, president and CEO of the American Health Care Association (AHCA), which represents for-profit nursing homes, said in a statement.
While the federal government has provided legal protections for some health care professionals during the pandemic, they have not explicitly included nursing homes. So the industry has focused much of its lobbying push at the state level, where it has seen quick results. At least 18 states have granted nursing homes and other long-term care facilities some legal immunity related to the pandemic, either through laws or governors’ orders. And industry groups have made moves in at least 10 other states to secure similar protections.
Consumer advocates, industry watchdogs and personal injury attorneys say that providing legal immunity to thousands of private companies is dangerous. They contend the pandemic has exposed longstanding problems in the industry, such as staffing shortages and infection control violations, and that taking away its legal liability will make it harder to hold facilities to account now and in the future. “They’ve gotten to under-invest in infection control. They’ve gotten to under-invest in facility safety design. They’ve been allowed to stack people three to a room and four to a room,” says Matthew Cortland, a health care lawyer who is legally responsible for four people in a skilled nursing facility in Massachusetts. “Now instead of being liable for the pain and suffering that they’re causing, we’re going to bail them out with a liability shield? That’s a horrible precedent.”
The changes are coming at a moment when visibility into the quality of care at nursing homes is already low, advocates say. In normal times, the federal government establishes broad regulations for nursing homes and states take the lead on their oversight. If problems at facilities arise, residents can take complaints to their states’ ombudsmen, who investigate and advocate on their behalf. In many facilities, family members also provide an extra set of eyes and assist with tasks such as feeding and personal grooming. During the pandemic, however, the federal Centers for Medicare and Medicaid Services advised nursing homes to restrict visitors except for end-of-life situations, limited the presence of ombudsmen, suspended inspections by state surveyors except those related to COVID-19 or for violations that pose “immediate jeopardy,” and said it would not enforce most penalties for this time.
While most agree many of these steps were necessary to contain the virus, the changes have also blocked most of the ways people outside a nursing home can know what is happening inside. “All of a sudden, you have this just total lack of monitoring and accountability. And then on top of it, you’re taking away even the remote possibility that you could be held legally responsible,” says Richard Mollot, executive director of the New York-based Long Term Care Community Coalition that advocates for nursing home residents around the country. “It’s basically a license for neglect.”
Lobbying for protection
The inundated nursing home industry has been pushing aggressively for civil liability immunity that protects providers from most legal action in cases of death, injury and property damage during the COVID-19 emergency period. Under normal circumstances, many nursing homes require disputes to be resolved through arbitration rather than in court, but residents and their families can still try to sue if something goes significantly wrong.
But the nursing home industry argues it should not be held responsible for problems that occur during this unique moment as they try to follow federal and state guidance. “The COVID-19 pandemic has created an unprecedented public health emergency. There is concern about the potential liability of health care providers, including long term care facilities, who are responding to the pandemic and providing high quality patient care while following updated guidance that has been issued by federal agencies such as CDC and CMS,” said Parkinson of the AHCA.
In the past, the AHCA has hired Ballard Partners, the lobbying firm of Brian Ballard, a former top Trump fundraiser who expanded his Washington practice after Trump won the White House. Ballard’s firm has earned about $1 million in lobbying fees from the AHCA since 2017 as the Trump Administration has repeatedly made moves favorable to the nursing home industry.
Since the onset of COVID-19, the Administration has said it is prioritizing seniors, and it recently created a commission focused on helping nursing homes navigate the pandemic. Health and Human Services Secretary Alex Azar wrote to governors in March urging them to take action so that health care professionals “feel shielded from medical tort liability.”
But the industry feels more needs to be done. Now much of the lobbying around liability protections is taking place at the state level. That activity has frequently been coordinated by state affiliates of the AHCA and of LeadingAge, the industry group that represents nonprofit nursing homes. Katie Smith Sloan, president and CEO of LeadingAge, said in a statement that “COVID-19 is a new disease, caused by a novel virus” and that the group’s “members are working hard to do the right thing and are focused on their missions of providing care.” In addition to states granting immunity, LeadingAge is “pursuing protections on the federal level with a coalition asking for uniform and consistent relief as well,” she said.
In New York, which has been the center of the country’s coronavirus outbreak, the Greater New York Hospital Association, which lobbies for hospitals and nursing homes, drafted the immunity law that Gov. Andrew Cuomo signed last month. The law goes further than most other state actions, in that it provides immunity for both civil and criminal liability from actions for nursing home patients with and without COVID-19. It does not cover gross negligence or intentional misconduct, but the law says actions that result from a “resource or staffing shortage” won’t fall under those exemptions.
Other states that have added immunity laws that would protect nursing homes from civil lawsuits include Alabama, Louisiana, Kentucky, Mississippi, Nevada, North Carolina, Rhode Island, Vermont and Wisconsin. Governors in Arizona, Connecticut, Illinois, Georgia, Massachusetts, Michigan and New Jersey have issued similar immunity orders that cover the nursing home industry or include categories such as “health care facilities,” which lawyers say would cover nursing homes. Virginia already had a law giving health care providers immunity during emergencies, and its governor clarified on April 28 that the law includes providers like nursing homes. Pennsylvania Gov. Tom Wolf issued an order on May 6 giving immunity to individual health care professionals, but it did not include health care facilities like nursing homes, which AHCA’s Pennsylvania organization noted with disappointment.
While these moves vary by state, many will stay in effect as long as a state of emergency is in place—something that could continue for months depending on the pandemic’s trajectory. There are some situations that would likely not be protected by these laws and orders, lawyers say, for instance if facilities lie to residents about COVID-19 cases, cover up virus outbreaks, or ignore certain federal guidelines.
As the industry seeks immunity, across the country, nursing home patients and their families have already started taking action against facilities that they say haven’t provided sufficient care during the pandemic. “Everybody is crying out, ‘Oh, this is an act of God. It’s a once-in-a-lifetime pandemic.’ Well, even acts of God and pandemics don’t give corporations a license to just completely abandon common sense,” says Dr. Roderick Edmond, a lawyer who is representing several families suing over COVID-19 deaths in an Atlanta assisted living facility.
Edmond says he has received calls about cases that he believes would meet any “gross negligence” standard, and thus fall outside the immunity orders. Still, that’s a high burden of proof, he says, and he fears it could discourage people from seeking relief if their loved ones do get hurt or die during the crisis.
An embattled industry
The nursing home industry was in trouble before COVID-19 struck. Nearly 70% of the country’s roughly 15,600 nursing homes are for-profit, and 57% are run by chains. For years, nursing homes have struggled to attract new residents, faced high staffing turnover rates and shortages, and often operated on thin margins with little room to upgrade their facilities.
Standards violations in facilities are common. As many as 3 million infections occur in skilled nursing facilities every year, killing 380,000 residents, according to the Centers for Disease Control and Prevention. Last year, infection control and prevention problems were the most frequently cited issue at nursing homes, and 63% of nursing homes were cited for at least one infection control violation in the last two inspection cycles, which go back to 2016, according to data analyzed by Kaiser Health News.
The federal government, thanks in part to industry lobbying efforts, has made moves to help the struggling industry. During its first year, the Trump Administration changed the way that facilities are penalized when they violate rules, switching from imposing a fine for each day a problem lasts to just one fine for most violations—a move that resulted in a more than 30% drop in the average fine from the Obama Administration. Despite the industry’s high number of infection control violations, in July, CMS proposed removing a requirement that every nursing home employ an infection prevention specialist at least part-time to help eliminate “excessive administrative burden.” Instead, the agency would require that infection specialists spend “sufficient time at the facility.”
Private equity firms have also swooped in on the industry, and now control more than 10% of facilities nationwide, further slashing costs and taking steps to maximize profits. When private equity firms take over nursing homes, a recent study by researchers at the University of Pennsylvania, University of Chicago and New York University found that they tend to cut back on nursing staff, and these cuts are directly associated with declines in care standards and patient health. Private equity-backed facilities regularly push back against such critiques. “If you look at the private equity structure, there are clinicians involved at the ownership level,” Michael Smith, president of Marquis Health Services, a subsidiary of a private investment firm, told Skilled Nursing News, defending the model. “They are experts in the field. They wanted to invest in something they knew about.”
Even in nursing facilities without private equity ties, understaffing is common. Nursing home jobs are notoriously hard to fill, in large part due to tough working conditions, low pay and limited benefits. There is no federal minimum staffing ratio that nursing homes are required to meet, and that is a major problem, says Charlene Harrington, a professor emerita at the University of California, San Francisco’s nursing school. Nursing homes should have enough nurses and aides to provide at least 4 hours and 6 minutes of care per patient, she says, but about 75% of homes did not meet this standard before the pandemic.
Barbara Duffy, a lawyer who defends nursing homes and sits on the legal committee of nursing home trade group AHCA, says that facilities are limited in what they can pay workers by the fact that they rely on Medicaid to pay the majority of patients’ bills. Advocates are skeptical of that defense. “If it’s true that they cannot provide safe care and humane care with the amount of money they’re being given to provide that care, then they need to go back to the government and say, ‘We can’t do this,’” says Nina Kohn, a law professor at Syracuse University and an expert on elder law. “Instead, what the industry does is it takes the money and it takes the residents and it doesn’t provide the care they need.”
Patient advocates worry the pandemic could exacerbate these fundamental issues. The way that nursing homes are paid means they may also have an incentive to accept more new COVID-19 patients than they otherwise would, given the challenges of controlling the virus. Patients who are discharged from a hospital and need to recover from COVID-19 in a nursing home will likely have their stay covered by Medicare, which on average reimburses nursing homes more than double what Medicaid does. During the pandemic, the Trump administration has waived a rule that typically limits Medicare to paying for 100 days of skilled nursing care at a time, meaning these patients can stay longer as they convalesce. Last October, the Administration also introduced a new payment formula that offers higher rates for patients with certain conditions, including those who use ventilators or have other respiratory problems.
As more states grant liability protections during the crisis, advocates worry the combined prospects of more money and legal immunity could further compromise patient care while reducing incentives to address the industry’s systemic problems. “If you’re just looking at the bottom line, why would you even be concerned about it?” says Mollot, the nursing home advocate from New York. “Just pile in as many residents as you want.”
Parkinson, the AHCA leader, said the suggestion that nursing homes were operating during the pandemic with financial gain in mind was “really disappointing.”
“These claims are completely false and an insult to these health care providers,” he told TIME. “Keeping residents safe and providing high quality care is the number one priority for our long term care providers,” he said. The industry “will continue to work with local, state and federal health officials to ensure all possible actions are taken to protect our nation’s most vulnerable and our heroes on the front lines.”
As states start to re-open, long-term care facilities’ struggle to keep up with the competing demands of sick patients and limited resources will only intensify, whether or not they can be sued. Nursing homes are still vectors for the virus, and even if some visitation restrictions or stay-at-home orders ease, these facilities will still be facing the same issues they were before the pandemic, just with more fragile patients and increasingly worn-out staff.
“Underlying the request [for immunity] is essentially an admission that nursing homes are not capable of taking care of their residents,” says Mollot. “If they were doing a good job on a regular basis, if they were prepared to provide appropriate care, appropriate staffing, I don’t think that we would have seen how this has played out in nursing homes, how devastating it’s been.”