May 14, 2020 - Health

Nursing homes lobby for immunity from lawsuits amid pandemic

Two emergency medical staff of a private ambulance company sanitize a hospital gurney

An ambulance is sanitized after dropping off a patient at a New York City health center. Photo: Robert Nickelsberg/Getty Images

Gov. Andrew Cuomo "quietly inserted a provision" in New York's budget bill that extended legal protections to the nursing home industry, making it harder for families to sue them, the New York Times reported Wednesday.

Why it matters: Nursing home lobbyists have been pushing during the coronavirus pandemic for immunity from lawsuits, and New York is among "at least 15 states" to have introduced extended legal protections to the industry per AP.

  • The Greater New York Hospital Association, a lobbying group for hospitals and nursing homes, helped draft the state's legislation, designed to provide legal protections for workers in the health sector in general, not just nursing homes.
  • More than 5,300 nursing home residents have died from the novel coronavirus in New York alone, official figures indicate.

Zoom in: Per a statement from the Greater New York Hospital Association, the Emergency Disaster Treatment Protection Act "grants qualified immunity to hospitals, nursing homes, administrators, board members, physicians, nurses, and many other providers from civil and criminal liability arising from decisions, acts, and omissions" that occurred from Cuomo's March 7 emergency declaration through its expiration.

  • The bill covers liability stemming from the care of individuals with and without COVID-19.
"The immunity will not apply to intentional criminal misconduct, gross negligence, and other such acts but makes clear that acts, omissions, and decisions resulting from a resource or staffing shortage will be covered."
— Greater New York Hospital Association statement

Zoom out: Lobbyists have targeted states yet to decide on such protections to ensure the industry won't be held liable for "events beyond their control" during the pandemic, AP notes.

  • These include Florida, Pennsylvania Missouri and California, where Gov. Gavin Newsom received a letter this month seeking to ensure care providers won't be "prosecuted or persecuted" for making difficult decisions.

What they're saying: Reps for Cuomo stress that "nursing homes were not singled out for protection," the Times notes, with the measure also safeguarding other health care facilities.

  • Jim Clyne, chief executive of LeadingAge New York, which lobbied for the N.Y. law as it represents nonprofit nursing homes, told the NYT: "People need to know that they're not going to be sued as a result of going to work. Providers need to feel safe to take care of people."
  • Center for Medicare Advocacy attorney Toby Edelman told AP immunity declarations "could make even gross or willful negligence suits harder since homes could argue any deficiencies were somehow tied to the pandemic."
“What you’re really looking at is an industry that always wanted immunity and now has the opportunity to ask for it under the cloak of saying, 'Let’s protect our heroes.' This has very little to do with the hard work being done by health care providers and everything to do with protecting the financial interests of these big operators."
— California Advocates for Nursing Home Reform attorney Mike Dark to AP

Of note: For-profit firms run nearly 70% of over 15,000 nursing homes in the U.S.

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