A hat-tip to Samuel Brooks, Program Manager of the National Consumer Voice for Quality Long-Term Care, for pointing out a potential loophole contained in the definitions of Senate Bill S. 4317 known as the “Safe to Work Act.” Provisions within the definitions appear to suggest that medical facilities could escape liability for wrongful actions for five years or more during the declaration of the coronavirus emergency.

They are thus receiving near blanket immunity for actions that might be considered, in non-pandemic times, malfeasance (an act that is illegal or wrongful), misfeasance (an act that is legal but improperly performed), or nonfeasance (a failure to act that results in harm).

A goal much-desired by long-term care facilities that are notorious for cost-cutting measures involving short-staffing (particularly during evening hours), inadequate training, and stinting on equipment and supplies. All of which may severely impact infection control during a time when the most vulnerable cohort of coronavirus victims are the elderly residents of adjunct medical care facilities.

Is there a loophole?



Here are excerpts from a letter from the National Consumer Voice for Quality Long-Term Care to Congress…

Dear Majority Leader McConnell, Speaker Pelosi, and Minority Leaders Schumer and McCarthy:

As advocates for our country’s 1.3 million nursing home residents, we write to strongly oppose the provisions in the Safe to Work Act (“S.4317”) that allow nursing homes to escape accountability for negligent care that harms or results in the death of nursing home residents during the COVID-19 pandemic. We also oppose any provisions that would make it easier for nursing homes to discriminate, under the guise of COVID-19 prevention, against residents or workers based on race, disability, sex, or national origin.

S.4317 grants blanket immunity to nursing homes from liability for all negligent care that harms residents for the next five years. In doing so, it endorses the provision of care to nursing home residents that departs from established standards and allows nursing homes to provide that care without fear of repercussion. S.4317 is harmful and unnecessary. It will imperil nursing home residents and further perpetuate the horrific effects the crisis is having on residents and families across the country.

The devastation in nursing homes could have been prevented. Over 59,000 residents of long-term care facilities have died from COVID-19 since the pandemic began. It is increasingly becoming clear that nursing homes that experienced high infection rates and deaths from COVID-19 were facilities with histories of inadequate infection procedures, low staffing, and a higher number of violations. The Centers for Medicare & Medicaid Services has stated that there is a connection between poor quality homes and COVID-19 outbreaks and research supports this conclusion. A report released by the General Accountability Office in May detailed how, prior to the pandemic, 82% of facilities in the United States had been cited for infection control violations, with over half of those having persistent problems. In addition, two recent studies show that facilities with histories of inadequate staffing and poor quality ratings experienced higher numbers of COVID-19 infections in their facilities.

S.4317 does not just excuse negligent care that results in harm to residents from COVID-19. Almost all harm that may befall a resident, be it malnutrition, failure to provide necessary medicines, or potentially even abuse will be excused under S.4317. Making matters even worse, S.4317 proposes to extend immunity for the next five years, meaning that current and future nursing home residents must reside in facilities that can disregard safety and health standards with impunity until 2024.

Importantly, nursing homes already have sufficient protections from lawsuits. Nursing homes that made good faith efforts to comply with standard practices and to obtain necessary equipment, but were unable to do so due to shortages, will avoid liability because they acted reasonably. Consequently, the Safe to Work Act is not about protecting nursing homes who fell victim to supply shortages due to the pandemic, but about protecting homes that provided poor quality care during the crisis that harmed or killed nursing home residents.

Legal liability has always functioned as a safeguard for nursing home residents by incentivizing nursing homes to provide quality care and comply with laws and regulations. It has served as a silent overseer of nursing homes who know that individuals in this country will not stand for neglect and inadequate care. Due to lockdowns, this oversight is even more important, as residents are deprived of the protection of their families, nursing home ombudsmen, protection and advocacy agencies, and nursing home regulators. Judicial recourse is one of the last remaining protections for residents. S.4317 removes this safety net and places nursing home residents in jeopardy at a time when they are the Americans suffering most from the COVID-19 outbreaks. As a nation, we cannot tolerate rewarding nursing homes for years of cost-cutting and profit-maximizing by relieving them of responsibility.

We urge you to reject immunity, and instead send a message that our country will not tolerate negligent care of our parents, grandparents, friends, and neighbors. They deserve better.

The letter is signed by…

  • California Advocates for Nursing Home Reform
  • The Center for At-Risk Elders
  • Center for Independence of the Disabled
  • Center for Medicare Advocacy
  • Center for Public Representation Justice in Aging
  • Law Firm of D.F. Truhowsky
  • The Long Term Care Community Coalition
  • National Association of Local Long-Term Care Ombudsman
  • National Academy of Elder Law Attorneys
  • National Association of State Long-Term Care Ombudsman Programs
  • The National Consumer Voice for Quality Long-Term Care
  • National Disability Rights Network
  • New York Association on Independent Living
  • Rivera & Shackleford, P.C.
  • Service Employees International Union

The full letter, in context, may be found here.

A subject matter brief may be found here.

Bottom line…

Americans should always have access to remedies in law. It is up to attorneys, as officers of the court, to discourage frivolous or meritless lawsuits. In many cases, filing a legal action is not about recovering monetary damages, considering that most residents are retired or disabled and are near the end of their lives – but to hold individuals and facilities accountable for their actions on behalf of others who are similarly situated.

Let your federal legislators know how you feel.

-- steve

P.S. Disclaimer: My sister has been a California State-Certified Ombudsman for almost ten years.

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