California Assisted Living, Nursing Homes Want Immunity from Legal Claims

HAYWARD, CALIFORNIA - APRIL 14: Adrina Rodriguez (L) talks with a nurse through a window as she visits her father who is a patient at the Gateway Care and Rehabilitation Center that has tested negative for COVID-19 on April 14, 2020 in Hayward, California. (Photo by Justin Sullivan/Getty Images)

Groups representing hospitals and long term care homes have asked Gov. Gavin Newsom for broad immunity against legal claims from residents in their care who suffer any injury or death during the COVID-19 pandemic.

The reason? Those groups say the pandemic has stretched staffing thin and made medical resources scarce, unprecedented circumstances that demand immunity from legal action.

An April 9 letter signed by the California Medical Association, the California Association of Health Plans, the California Hospital Association, the California Assisted Living Association, LeadingAge California, and the California Association of Health Facilities requested an executive order they said was imperative to help the care providers they represent save lives.

Nearly half of reported deaths in California blamed on coronavirus have been residents of assisted living and nursing homes. In recent weeks, the state has begun releasing limited information about current coronavirus cases and cumulative deaths in facilities regulated by the California Department of Public Health and the California Department of Social Services.

California has some existing protections for physicians and health care providers in times of emergency. The new language proposed by industry trade groups is written broadly, to relieve facilities from the threat of civil and criminal suits, as well as administrative sanctions, for injury, death, and loss stemming from caretaking services during the pandemic.

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“Skilled nursing facilities have been on the front lines of fighting the COVID-19 pandemic and have suffered from a lack of access to testing and personal protective equipment, diminished nurse staffing and inconsistent directives from county, state and federal agencies,” said Deborah Pacyna, a spokeswoman for the California Association of Healthcare Facilities. “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.”

Advocates for older and disabled residents of care facilities, including Senior and Disability Action, California Advocates for Nursing Home Reform, and the Consumer Advocates for RCFE Reform have all objected to the request.

Read the April 9 letter to Gov. Gavin Newsom, above.

Pat McGinnis, CANHR’s executive director, points out that the state has waived minimum staffing requirements and halted visits to care facilities from regulators, local public advocates, and family members. “We’ve suspended most of the rights for residents, and now the industry wants to suspend their right to sue for elder abuse,” McGinnis said.

Advocates also argue that because long term care facilities in California are overwhelmingly operated for-profit, corporate entities compromise care.

“They are typically understaffed,” said Jessica Lehman, the director of Senior and Disability Action. “Often, staff are forced to work at multiple jobs and multiple facilities, and they themselves are more at risk of contracting the virus and spreading it.”

The governor has not said whether or how he will act on the industry request. Similar arguments have persuaded sixteen other states to offer facilities some level of immunity for actions in care facilities during declared emergencies related to coronavirus, either through executive order or legislation.

At the federal level, Congressman Kevin McCarthy, a Republican from Bakersfield, has supported Missouri Senator Mitch McConnell’s call for liability as an essential part of any future COVID-19 relief package. Speaker of the House Nancy Pelosi has said Democrats are “disinclined” to support that call.