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Nursing homes free from liability as they address Covid-19

New York’s nursing homes, the sites of some of the worst outbreaks of coronavirus in the state, won’t face legal liability over shortcomings in care provided to residents during the pandemic.

Advocates for nursing home residents worry that a new state law gives nursing home operators a free pass to disregard care standards as they scramble to respond to the virus.

The Emergency or Disaster Treatment Protection Act, passed with little discussion April 6 as part of the state budget, was aimed primarily at protecting doctors, other health care workers and hospitals from being sued for how they handled Covid-19 patients.

The law also provides broad legal immunity for nursing homes during New York’s state of emergency.

“In a pandemic, it’s probably the right thing to do,” said James W. Clyne Jr., president of LeadingAge New York, which represents hundreds of nursing homes and assisted living facilities across the state. “It was a prudent step that people were trying to take so that you could have caregivers available to take care of people. Obviously, it’s a super difficult situation.”

Clyne said he had not heard pushback on the immunity law.

“I don’t think the first thing on everybody’s list is: Let’s think of ways to go out and sue people during a pandemic,” he said. “That might be some people’s No. 1 priority. My members’ No. 1 priority is keeping people safe and healthy under really difficult circumstances.”

But opponents of the measure said it applies even in nursing homes without any coronavirus cases and allows nursing homes to escape accountability for providing poor care.

“It’s utterly outrageous,” said Richard J. Mollot, executive director of the Long Term Care Community Coalition. “It’s blanket immunity, immunity from any neglect, any substandard care. The only thing it doesn’t grant immunity for is purposeful, like criminal-level behavior, So, if you stab somebody, you could be held liable, but otherwise you’re free. It’s mind-blowing.”

Mollot said his office already is getting reports that other causes of death could be climbing in nursing homes that didn’t have enough staff to provide proper care even prior to the pandemic.

“Who knows how many people are dying from pressure ulcers and falls and abuse. That normally happens, and now it’s undoubtedly happening more with the lack of staffing and the strains on staff,” said Mollot, whose nonprofit focuses on improving quality of care in residential facilities for the elderly.

Mollot said residents no longer have access to services such as occupational and physical therapy, causing their health to worsen.

Without visits from family members, some residents aren’t getting the nutritional supplements they are accustomed to and the nursing home won’t provide, he added.

“We’ve seen a lot of dehydration, which can happen pretty quickly and can be very dangerous to someone who’s older,” he said.

Mollot said he is also concerned that nursing homes are using hydroxychloroquine on residents with Covid-19, even though the drug is still unproven as a coronavirus treatment and potentially harmful.

States such as Illinois, Pennsylvania and Florida are considering following New York’s lead, said Brian Lee, executive director of Families for Better Care, a national watchdog group.

Lee said the nursing home industry has regularly lobbied for liability relief measures and has now used the pandemic to “gain sympathies” in state legislatures and governors’ mansions.

“I don’t know if you can just waive somebody’s right to due process because there’s a health crisis going on, but they’re doing it,” said Lee. “They’re trying to give these facilities cover, and it’s pretty dangerous because there is no accountability right now in these facilities. Zilch. There’s nothing.”

Lee and Mollot said nursing home residents have become more vulnerable since the pandemic because family members have been unable to check up on them and regulatory visits have dropped off.

“The nursing homes are policing themselves right now,” Lee said. “We’ve left the control of facilities that had a checkered history to begin with, a checkered regulatory history, and we left it to themselves to manage this crisis.”

Making nursing homes immune from liability won’t help people live, he said.

“It just helps protect the providers. It doesn’t protect the health care workers on the front lines and it certainly doesn’t help our parents or grandparents or spouses living in these facilities at all,” he said.

Gov. Andrew Cuomo said during his news conference on Saturday that the coronavirus crisis has overwhelmed nursing homes, but that should not be an excuse for operators to provide substandard care.

"The regulations still apply, right, even though you're in the middle of a global pandemic," he said. "For the nursing homes, one of the essential regulations is if you cannot provide appropriate care for a patient, you must transfer that patient. Period. That's the rule."

Cuomo said that regulation applies even in instances where nursing homes experienced staff shortages or couldn't get supplies and personal protective equipment.

The governor also said the state Health Department and the state Attorney General’s office will begin monitoring nursing homes to make sure they inform families when a resident tests positive for Covid-19 or dies from the virus.

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