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What is the Rush?

Published on June 19th, 2020

Forbes published an article by Patricia Barnes about the nursing home industry’s demand for blanket immunity.  Judge Barnes writes:

“Granting broad immunity to nursing homes that failed to put in place reasonable protections for vulnerable residents during the pandemic represents an appalling abuse of the rule of law.

About 20 states already have granted nursing homes immunity from civil lawsuits stemming from the coronavirus pandemic and now the U.S. Congress is poised to do so. What’s the rush?

There has been no serious investigation into how nursing homes performed in the pandemic and there is plenty of reason for concern.

The Centers for Medicare & Medicaid Services reported Friday that 31,782 nursing home residents have died from COVID-19 as of May 31, which is about 33% of the nation’s known coronavirus deaths. The highest number of deaths occurred in New York, New Jersey and Connecticut, which were among the first to grant civil immunity to nursing homes.

A grant of immunity effectively eliminates civil legal redress for and on behalf of nursing home residents who died due of COVID-19 due to negligence and abuse.

Nursing home immunity makes it difficult, if not impossible, for family members of the ability to find out what happened to a loved one who died during a lockdown, alone and behind closed doors.

Worse still, society is left without the means to hold bad nursing homes operators accountable for patient abuse and neglect. It’s the equivalent of signing a blank check with no name and no ending date.

A waiver under the present circumstances is the equivalent of signing a blank check. Who is the beneficiary?

The AARP reports that approximately 70 percent of the nation’s 15,600 nursing homes are for-profit corporations. In recent years, corporate nursing home owners have been criticized for using business models that squeeze profits out of nursing homes by leaving facilities poorly staffed and under-resourced. These corporations likely will be the primary beneficiaries of an immunity waiver.

The Canadian Armed Forces in April dispatched 1,675 troops to more than 30 hard hit nursing homes in Ontario and Quebec to provide humanitarian relief.  In some homes the Army found:

  • COVID-19 positive residents wandered freely among non-positive patients.
  • Staff wore the same protective equipment in COVID-19 positive and non-positive units.
  • “[A] general culture of fear to use supplies because they cost money.”
  • Expired medications apparently were dispensed for weeks.
  • Rotten food and cockroach/fly infestations.
  • Some patients didn’t get three meals a day.
  • Patients left for hours in soiled pads and diapers.

The New York Times recently investigated deaths at the Isabella Geriatric Center in New York, where more than a 100 residents died. Two nurses said employees there wore the same personal protective equipment to handle both Covid and non-Covid residents, thus “creating avenues for the virus to spread.”

It is common sense and costs little money to segregate COVID-19 patients and non-positive patients. Failure by a health care facility to do so could easily rise to the level of neglect.

Some states have adopted nursing home immunity laws and executive orders that go far beyond protecting front-line doctors and nurses.

The definition of health care provider in New York, Massachusetts, and North Carolina includes “a health care facility administrator, executive, supervisor, board member, trustee,” or other corporate managers.

Connecticut’s waiver is so broad that it could be characterized as a “blanket.” Gov. Ned Lamont’s executive order grants protection from civil liability to any “health care professional or health care facility” for “any injury or death” sustained as a result of an “act or omission” in the course of providing medical services in support of the state or federal government’s response to  COVID-19 outbreak.”

Given the circumstances, it seems ironic that Republicans are rushing to protect nursing home corporations during an election cycle where they are dependent upon the support of older Americans.”

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