Senior Care Facilities Seek Legal Immunity During Coronavirus Pandemic
Tuesday, April 21, 2020
Photo by Matthew Bowler
Groups representing California’s nursing homes and assisted living facilities are joining hospitals and other health care providers in pushing Gov. Gavin Newsom to relieve them of liability for decisions made during the coronavirus pandemic.
They’re asking for immunity from administrative and civil lawsuits and criminal prosecution. They argue the legal protection is needed to "save Californians' lives."
"California's health care workers and those serving in supporting roles are on the front lines of a crisis unlike any our state has ever faced,” wrote the health care providers in a letter this month to Newsom. "Sadly in the coming days and weeks, they will face wrenching, life-threatening decisions in managing scarce resources amid arduous conditions."
The letter goes on to say that health care providers should be given the "support they need to make the best possible decisions, including protections from future legal action as long as that liability protection does not excuse willful misconduct."
The coalition of industry representatives includes the California Assisted Living Association, the California Association of Health Facilities, the California Hospital Association, the California Medical Association, the California Association of Health Plans and LeadingAge California.
Advocates for people in elder care said during a news conference Monday that such immunity should not be given to nursing homes and assisted-living facilities.
Pat McGinnis, executive director for California Advocates for Nursing Home Reform, said it would give these facilities a free pass and result in dangerous consequences.
"What it would do is excuse elder abuse," McGinnis said during the news conference that was held via Zoom. "We worked long and hard to get the elder abuse laws established in California."
Such sweeping immunity would remove the last layer of protection for nursing home residents when their lives are already threatened by COVID-19, McGinnis added.
“The staffing requirements have been suspended,” McGinness said. “They’re not allowed to have visitors. The long-term ombudsman can’t visit. Even the health care inspectors are not visiting these facilities and now the industry wants to suspend their right to sue for elder abuse, including elder financial abuse.”
More than 3,000 residents and staff at state nursing homes have been diagnosed with the virus, according to the California Department of Public Health. The actual count is likely much higher because of test shortages and lack of mandatory reporting on the part of the facilities.
During the pandemic, nursing homes have also suffered from “diminished nurse staffing and inconsistent directives from county, state and federal agencies,” said the California Association of Health Facilities in a statement to KPBS.
“We are seeking baseline protection from the expected surge in litigation that will inevitably engage in the second-guessing of caregivers seeking to do their best under impossible circumstances,” the statement said.
But advocates argued that the industry bears much of the blame. They believe the spread and devastation at nursing homes is a product of decades of shoddy infection control practices. And they say nursing homes themselves are responsible for the insufficient staff.
“The decisions which fostered this dereliction were made, not by frontline workers, but owners and management who have routinely placed profits over care,” said lawyer Mike Dark of California Advocates for Nursing Home Reform. “Broad immunity will indulge these past failures and encourage new ones by removing incentives to engage in critical thinking and to act reasonably for the welfare of residents.”
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