Wednesday, May 27, 2020

Looking at Reasons for Opposition to Federal Immunity for Long-Term Care Facilities Related to Covid-19

A long-time friend and advocate for quality of life as we age contacted me today to discuss what to think about any attempts at federal legislation to immunize long-term care facilities from liability related to Covid-19.  I admitted I hadn't had time to think about this yet!  So, I'm starting my thinking now.   My blogging colleague, Becky Morgan, said earlier this month that even at the state level, immunity is not an "easy" issue.  

Historically, when Congress passed the Nursing Home Reform Act of 1987, it was an important attempt to create minimum national standards for quality of care, in light of a long nightmare of horror stories about inadequate care across the nation.  But, even as it established standards (such as a prohibition on "restraints" without documented medical necessity), it did not establish a "right to sue" by individuals claiming failure to comply with the standards.  That was probably a compromise worked out with the various lobbying groups, but the consequence of that was states were left to decide on their own about whether and to what extent rights exist for a patient to sue for negligent care. So, one could say that it would be "unprecedented" for Congress to actively shield the long-term care industry from quality of care standards, stepping on the toes of the states.   (Plus, at first blush, I don't see how Congress has any authority to craft immunity for facilities that are not subject to Medicare/Medicaid funding and oversight).

On the other hand, depending on how broad or narrow any such legislation was drafted, limited immunity might be appropriate on a narrow ground.  States have been relying on existing federal Medicare/Medicaid law that effectively prevents nursing homes from turning away Covid-19 infected residents as long as they have open beds and the patient qualifies for Medicaid/Medicare.  So those nursing homes have been, in effect, forced to take infected patients, which greatly increases the potential for cross infection, even with "good" infectious disease procedures in place.  But isn't this a "problem" that should be fixed, rather than pasted over?  

Advocacy groups on behalf of older persons, disabled persons, and consumers and workers are making it clear they oppose broad federal immunity.  See the May 11, 2020 letter to Senate Chairman Graham and Ranking Member Feinstein, signed by California Advocates for Nursing Home Reform, The Center for At Risk Elders (CARE), Center for Medicare Advocacy, Community Legal Services in Philadelphia, Justice in Aging, Long-Term Care  Community Coalition, National Association of Local Long Term Care Ombudsmen, National Academy of Elder Law Attorneys, National Association of Social Workers, National Association of State Long Term Care Ombudsman Programs, the National Disability Rights Network, Services Employees International Union, as well as individual law firms.  

See also the letter of May 11, 2020 sent by AARP.

Addendum:  See also  140 Groups Now Oppose Immunity; Nursing Homes Want Immunity and New York Regrets Giving It to Them, posted May 14, 2020 on Public Citizen.

https://lawprofessors.typepad.com/elder_law/2020/05/looking-at-reasons-for-opposition-to-federal-immunity-for-long-term-care-facilities-related-to-covid.html

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