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Payback?

Published on June 26th, 2020

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.

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.”

I wonder why?

Private equity firms have also swooped in on the industry, and now control more than 15% of facilities nationwide, further slashing costs and taking steps to maximize profits over caring for the residents. 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 cut back on nursing staff, and these cuts are directly associated with declines in care standards and patient health.

In the past, the nursing home industry has hired Ballard Partners, the lobbying firm of Brian Ballard, a former top Trump fundraiser who started his lobbying practice once Trump won the White House. Ballard’s firm has earned more than $1 million in lobbying fees from the nursing home industry since 2017 as the Trump Administration has repeatedly made moves favorable to the nursing home industry.

During its first year, the Trump Administration limited penalties when they violate safety rules, switching from imposing a fine for each day a problem lasts to just one small 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 history of high number of infection control violations prior to the pandemic, 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.”

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