COVID-19 and Nursing Home Litigation Update: Nursing Home Immunity

Last week, in our continued effort to inform our clients and provide answers to questions we are receiving from the community, Fried & Bonder published COVID-19 and Nursing Home Litigation. In the article, which analyzed potential liability for COVID-19 related deaths, we also raised the possibility that legislation protecting nursing homes and other long term care facilities (“LTCFs”) from litigation may be on the horizon.   Indeed, as the COVID-19 death toll at nursing homes and other  LTCFs climbs to nearly 12,000, the industry is pushing states to provide immunity from lawsuits.

To date, approximately 17 states, Georgia being one of them, have passed laws or signed Executive Orders protecting LTCFs, their employees and staff from litigation related to COVID-19 related injury and deaths.  Massachusetts and New York, for example, have each passed laws that specifically immunize the facilities.  Governors in Connecticut, Georgia, Michigan and New Jersey have issued Executive Orders that immunize facilities.  Other states, like Louisiana, Wisconsin and Kentucky passed laws that do not specifically identify nursing homes, though these measures will likely be interpreted to include nursing homes.  Similarly, in Illinois and Arizona, the governors signed Executive Orders that do not specifically list nursing homes but do extend immunity to health care providers broadly.  It is expected the immunity will reach nursing homes and LTCFs.  Protections in virtually all these states either identify nursing home facilities specifically or extend to “any facility that provides health care services by a licensed professional” in response to the COVID-19 emergency.  See Governor Kemp’s Executive Order here.

Blanket immunity for all acts is not likely.  Nor is the protection indefinite.  Extreme neglect and instances of gross negligence or egregious business decisions are largely exempted from these protections.  For example, the decision to lie or misrepresent to families information regarding Coronavirus cases or the health or diagnosis of a family member would likely be considered an intentional act or a  business decision and would probably not be covered under an immunity Order.  A complete failure to adequately train employees to render sensitive care, or improperly utilizing unlicensed professionals to render certain care, may be acts that fall outside the immunity.

Except in a few states, the immunity protections for health care providers will only last as long as the COVID-19 state of emergency lasts.  This does not mean a potential lawsuit may wait until a particular state lifts its state of emergency declaration.  Rather, any act committed during the state of emergency that leads to a COVID-19 related injury or death inside a nursing home or other LTCF, will, at first blush, be protected under the immunity law or Executive Order.

Making issues more complicated, The Department of Health and Human Services Centers for Medicare and Medicaid Services  (“CMS”), one of the agencies responsible for designating regulations to LTCFs, has relaxed many of its operational directives due to the emergency.   On March 4, 2020, CMS put out its first memo  related to COVID-19 – part of their regulations related to infection and control programs.   These regulations were updated on March 13, 2020.  On April 2, 2020, both the Center for Disease Control (“CDC”) and CMS issued renewed guidance on key recommendations for nursing homes and other LTCFs in dealing with COVID-19 risks.

While these guidelines put nursing homes and LTCFs on notice of appropriate standards of care, as a result of the emergency, shortages of workers and shortages of supplies, CMS has also waived or relaxed many directives originally enacted for the safety of the residents.  For example, in March, CMS announced it would temporarily postpone routine inspections of facilities, suspend citations to LTCFs for failing to keep appropriate levels of supplies (like PPE, N95 respirators and gowns) when shortages result from circumstances outside their control.  CMS also temporarily waived minimum reporting data, staffing data and pre-admission screening.

In the last article, we discussed the different responsibilities of RNs and LPNs and potential liability when unauthorized personnel render care that leads to an injury or death.    The April 24, 2020 CMS update responded to a question regarding waiver of federal requirements as follows:

CMS expects nursing homes to utilize waivers only for their expressed intent. For example, if CMS has waived requirements for duties that are typically performed by administrative or non-direct care staff, we expect providers to reallocate these staff to perform other duties that support resident care and well-being.

There is no doubt that most staff in nursing homes and other LTCFs are doing the best they can under these difficult circumstances.  If called to task, there are very good reasons for staff and supply shortages.  As a result, these facilities should not be held responsible for bad outcomes that were beyond their control.  Nonetheless, these very circumstances, though understandable in most cases, make their residents even more vulnerable to infection and neglect.  Moreover, information changes daily on how the virus spreads and what measures are most effective to prevent it.  For now, the industry continues to push hard for broad immunity and, for the most part, states are responding. It remains to be seen how broad the immunity reaches and what circumstances will be required to get around it.

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