With The Wall Street Journal reporting that coronavirus deaths in the US have now topped 10,000, nursing homes and other health care facilities in some states are reportedly seeking and obtaining temporary immunity from potential civil suits.
California, Florida, Michigan, Illinois, Massachusetts, New Jersey, Iowa, Indiana, Louisiana, Maryland, Virginia, Washington and Pennsylvania are among the states reported to be seeking or already covered by orders that will protect them from civil prosecution during the pandemic.
Aged care peak body LeadingAge has argued that it is critical for operators to have immunity because of the shortage of tests and PPE and shortfalls in drugs, respirators, and ventilators.
“It’s unprecedented times that we’re dealing with,” Cory Kallheim, LeadingAge’s vice president of Legal Affairs and Social Accountability. “So, it puts (nursing homes) in a really, really difficult spot. They’re doing the best they can in the difficult circumstances.”
Mr Kallheim also pointed to the constantly changing guidance from the federal government, as well as the understanding of the virus itself, as a need for the protections.
“We don’t have an understanding of how this (virus) is spread,” he says. “We're getting more information as we move forward each day, each week. And it’s putting a real tax on what our providers are able to do.”
In New York, one of the epicentres in the US, nursing homes are covered by the Emergency Disaster Treatment Protection Act which protects protect health care facilities and professionals from liability that could come from treating COVID-19 patients.
While this immunity does not extend to harm or damages caused by willful or criminal misconduct or gross negligence, it will cover harm or damages if they stem “from a resource or staffing shortage” – a major issue for US nursing homes where outbreaks have occurred.
The guidance from the Centers of Medicare & Medicaid Services (CMS) also suggests it won’t sanction operator for infection-control issues caused by inadequate PPE.
However, they will still be liable for improper use of supplies such as they are available.
Case in point: the first round of COVID-19 inspections found that 36% of facilities were not following proper hand-washing protocols, while 25% did not demonstrate proper use of personal protective equipment (PPE).
So, operators may still face sanctions – or criminal prosecution – if they don’t meet standards.
