Advocates for nursing home residents fear that liability protections will serve as a green light for operators to pursue cost-cutting measures that put already-vulnerable residents at risk.
One in every 32 nursing home residents in America has died of COVID-19, but Senate Majority Leader Mitch McConnell is hoping to protect those very facilities from coronavirus-related lawsuits.
McConnell’s so-called “red line on liability” would make it harder for employees and customers to sue companies for exposing them to COVID-19. If approved, that measure would also apply to nursing home patients and their families, making it nearly impossible for them to sue nursing home operators over coronavirus-related negligence.
The contentious proposal, included in the Senate GOP coronavirus relief bill introduced last week, would:
- move cases to federal court;
- raise the standard of proof plaintiffs must meet;
- narrow the definition of gross negligence;
- prevent facility staffing or resource shortages from being considered gross negligence;
- give families only one year to file lawsuits;
- and force families to obtain expensive affidavits and official medical records before filing a case.
Democrats have called such protections a non-starter. While the nursing home industry has argued that a shield is necessary to protect them from lawsuits that might arise from having made difficult decisions during the pandemic, advocates for nursing home residents fear that such protections will destroy what little accountability there is for nursing homes. They’re also concerned that it will serve as a green light for nursing homes to pursue cost-cutting measures that put already-vulnerable residents at risk.
“There’s nothing that will be worse for the nursing home crisis than the liability shield that McConnell is pushing,” said Alex Lawson, executive director of Social Security Works, an organization focused on advocating for elderly, disadvantaged, and at-risk populations. “It is literally a 007 license to kill, except it’s not based on anything other than profit. When you remove any check on safety from a corporation, they will drive to the limit on that one.”
McConnell’s focus on liability protections—even after nursing homes have become a source of mass deaths—is “disastrous,” Lawson added.
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More than 40,000 of the nation’s 1.3 million nursing home residents have died of COVID-19, according to the Centers for Medicare and Medicaid Services (CMS), but the real death toll is likely much higher. The New York Times estimates that 59,000 residents and staff members of nursing homes and other long-term care facilities have died of complications related to the virus, accounting for more than 40% of all coronavirus deaths in the United States.
Those deaths have come amid widespread failures in infection control, shortages of staff and personal protection equipment, and allegations of sub-standard care—all of which Lawson said are the inevitable result of nursing home operators engaging in a sort of pay-to-play politics with the Trump administration for the past three years. He cited the administration’s rollback of infection control protocols, which allowed nursing home owners—most of which are private equity firms and other for-profit operators—to skirt accountability, reduce staffing costs, and avoid costly fines for violations.
“The Trump administration is feeding from the trough of private equity nursing home money, and in return, was passing policies that weakened nursing homes’ ability to stand up to anything,” he said. “It’s just the story of corruption.”
The American Health Care Association, which represents long-term care facilities, has spent roughly $13.5 million since the beginning of 2017 lobbying the federal government, according to the Center for Responsive Politics.
Advocates have said that while lawsuits against nursing homes are rare, they represent an important oversight tool to prevent facilities from cutting corners. By essentially taking away the ability of residents and their families to take legal action over coronavirus-related negligence, the government would be removing the last remaining form of accountability that nursing homes have to face.
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In March, CMS ordered federal and state inspectors to only enter facilities that were categorized as needing infection control oversight, allowing other facilities to operate with minimal regulation. This all but halted oversight during the pandemic. The agency also waited until June—three months into the pandemic—to clarify that facilities with outbreaks needed state inspections.
“The nursing home industry was given a holiday from any type of monitoring, oversight, or accountability during the COVID-19 pandemic, and most of that is still continuing to this very day,” Richard Mollot, executive director of the Long Term Care Community Coalition, a New York-based nonprofit, told Mother Jones.
Without the legal option, most nursing home patients and their families would have no other path to try to obtain justice or financial compensation. In fact, in many states, they already lack that option. At least 28 states have enacted laws or executive orders protecting healthcare providers, which in some cases includes nursing homes, from liability lawsuits, according to the National Consumer Voice for Quality Long-Term Care.
Still, the nursing home industry and McConnell are after more. If they succeed, Lawson worries the consequences will be devastating for an already-decimated long-term care system.
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“The Republican offer is a total disaster. It does nothing to actually address the nursing home crisis,” he said. “I cannot think of a more disastrous policy to ensure an accelerating nursing home crisis than what Mitch McConnell offered in his so-called relief package.”
Keya Vakil Keya is a reporter at COURIER, where he covers everything from healthcare to climate change. Prior to joining Courier Newsroom, Keya worked as a researcher in the film industry and dabbled in the political world.
