By Nicolas Terry, LLM and Tara Sklar, JD, MPH
This post is part II of a two-part series on COVID-19 and care facilities. In the first installment we assessed the centrality of care facilities to the COVID-19 pandemic and outlined the infection risks for residents and workers. In this second installment we will explore how improved regulation and enforcement, combined with liability rules, provide the best path forward to improve an industry that, despite its deficiencies, claims it deserves exceptional immunity.
Regulatory Efforts Relax as Infections Rise
While care facilities face regulatory oversight by CMS, the Trump Administration has made efforts to relax requirements. For example, nursing homes are now penalized a single fine for most violations, rather than for each day there is a deficiency. This change led to a 30% drop in the average fines when compared to the Obama administration. This relaxed penalty has remained in place even as infection rates are rampant in nursing homes, with 63% cited for at least one infection control violation in 2019. Furthermore, there is an active CMS proposal to remove the requirement that every nursing home must employ an infection prevention specialist, and instead allow for infection specialists spending “sufficient time at the facility” to count.
Thankfully, in the midst of the pandemic the Trump administration has instituted new rules requiring more transparency among nursing homes, such as mandatory reporting of any COVID-19 cases directly to the Centers for Disease Control and Prevention, as well as to nursing home residents and their representatives.
Unfortunately, these notification requirements do not apply to other care facilities, despite their similar risk and, in some cases larger size (they outnumber nursing home beds in one third of the most-populated metropolitan statistical areas). As federal and state governments attempt to prevent the transmission of COVID-19 among older adults, it is essential to include all care facilities in these efforts and recognize how their immunity from liability could further erode basic industry standards of quality assurance and safety.
Liability and Calls for Immunity
Care facilities will face multiple claims for COVID-19 related deaths and injuries.
Most claims will be constructed from principles of ordinary negligence, though some skilled nursing facilities may also see medical malpractice claims alleging substandard diagnosis or treatment.
Typically, ordinary negligence will apply to allegations such as poor hygiene, the absence of social distancing protocols, and the failure to test, isolate, or hospitalize residents or staff.
For example, the first lawsuit filed against Kirkland alleges that the nursing home was aware of an outbreak of respiratory disease but “lacked a clear plan of action leading to a systemic failure,” as residents held a party and visitors were still allowed.
As already discussed, care facilities are subject to both federal and state quality and safety oversight; breach of these rules (including failure to report) also may constitute evidence of negligence. Subsequently, suit has been filed against the Healthcare at Foster Creek, an Oregon nursing home where nearly 30 people died; allegations include failure to inform residents or family members of test results in a timely or accurate manner, downplaying the risk of COVID-19, lies about safety practices, and failure to share information about the dangerous conditions at the facility.
Additionally, several states have passed care facility-specific legislation providing remedies for residents, their guardians, or their estates. For example, a Florida statute codifies the traditional standards owed by facilities as well as permitting civil enforcement of regulatory standards (the latter allowing for the award of attorney’s fees). Of course, defendants in negligence cases only owe a duty of reasonable care “in all the circumstances” and it is likely that care facilities will defend their conduct based on the extraordinary circumstances presented by COVID-19 including, for example, the absence of information about COVID-19’s asymptomatic transmission and pathology early in the outbreak or, later, the non-availability of testing kits.
Plaintiffs also may face difficulty in proving causation. First, given the nature of COVID-19, viral transmission remains possible even where reasonable care is taken; proving that a lack of care caused transmission is, therefore, problematic. Second, while a concurrent cause, such as a co-morbidity does not rule out liability, the unique (and many unknown) features of the virus combined with the multiple co-morbidities identified in vulnerable nursing home populations likely will create problems for plaintiffs.
Nursing homes that receive Medicaid funds also are likely concerned about potential claims under the False Claims Act alleging inadequate care or implied certification. Such actions are often initiated qui tam by whistleblowers, are notoriously difficult to defend, and usually result in very large settlements (for example, the Life Care chain reached a $145 million settlement with the Department of Justice in 2016 to resolve a lawsuit over false claims “for rehabilitation therapy services that were not reasonable, necessary or skilled”).
In some states, plaintiffs will be burdened by legislative reforms designed to reduce claims against providers. For example, Texas has a very low “cap” on recoverable noneconomic damages, which applies to nursing homes, while Indiana, which also has a broad definition of health care provider, requires that any complaint has to be presented first to a medical review panel. Some plaintiffs also will miss their day in court because of binding arbitration clauses contained in facility admission agreements. During the Obama Administration CMS moved to outlaw pre-dispute arbitration agreements. This was overturned by the Trump administration, although some state laws continue to regulate such agreements.
Of most immediate concern to plaintiffs may be the myriad of COVID-19 liability shields contained in executive orders or legislation that are designed to immunize healthcare workers and facilities during the pandemic. The intent of most of these provisions is reasonably clear; to protect front-line healthcare workers and healthcare facilities from negligence liability for acts and omissions undertaken in good faith subject to exceptions in cases of willful, criminal, or reckless conduct. Some states including Connecticut, Hawaii, Massachusetts, Mississippi, and Vermont seem to have gone further, including various types of care facilities in their shields. No doubt care facilities will rely on some of these provisions. However, they will have to persuade courts that the negligence alleged against them occurred as part of the emergency response to COVID-19 and not as acts or omissions that occurred prior to the emergency declaration or were unrelated to the response.
Such ambiguity is also found in the country’s broadest liability shield, contained in New York’s Emergency or Disaster Treatment Protection Act. That immunity applies to nursing homes, care workers, and even extends to any facility “administrator, executive, supervisor [or] board member.” Uniquely, the immunity also extends to criminal liability. That being said, the immunity still is tied to acts or omissions “in response to or as a result of the COVID-19 outbreak and in support of the state’s directives.” It is an open question whether that language applies to acts or omissions that contributed to the outbreak rather than its mitigation (for more detail on state liability shields see our new article in The Conversation).
Nursing home lobbyists reportedly helped draft the New York law, and they clearly have their sights set on broad protections against the thousands of suits they will be facing. Shielding an entire industry from liability is an extraordinary step. There is no evidence that the filed or threatened lawsuits are frivolous or that the damages claimed fall outside the norm. Rather, this is an attempt by insured for-profits with a history of misconduct to externalize the costs of their failure to exercise the minimum standards of care owed to their vulnerable customers.
Conclusion
A multitude of studies have documented the poor quality of care in nursing homes and other care facilities. The care facility industry is justified in pointing to the extraordinary nature of the COVID-19 pandemic and the extent of its potential liability exposure. However, neither justify extending immunities appropriately granted to first responders, emergency departments, and ED clinicians. Indeed, as the facts surrounding the response of care facilities to the pandemic become clearer, the opposite conclusion is supported; regulation and enforcement should be expanded, and residents should continue to be protected by the minimum standards of reasonable care.
Nicolas Terry, LLM is the Hall Render Professor of Law & Executive Director of the Hall Center for Law and Health at the Indiana University Robert H. McKinney School of Law
Tara Sklar, JD, MPH is a Professor of Health Law and Director of the Health Law & Policy Program at the University of Arizona James E. Rogers College of Law.
