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Last year, the federal government reportedly gave nursing homes liability protections to shield themselves from an onslaught of wrongful death lawsuits from the families of COVID-19 victims, as the coronavirus tore through these facilities. About 200 lawsuits in nearly half the states have already been filed, and the industry says it’s bracing for many more.
However, an emergency preparedness law expanded by Congress in 2020 limiting health providers’ exposure to coronavirus-related lawsuits, as well as the Trump administration’s broad interpretation of those protections, are currently upending litigation against nursing homes. Powerful nursing home lobbies reportedly spent at least $4 million lobbying Washington last year, and were among the health groups that successfully urged Congress and statehouses last spring to grant expanded protections. They argued that they faced shortages of personal protective equipment and shifting guidance from the federal government on battling the virus.
The federal protections nursing homes have sought to invoke come from a 2005 law, the Public Readiness and Emergency Preparedness Act, which was passed in response to bioterror threats like anthrax and infectious diseases like avian flu. It shielded vaccine makers and drug manufacturers from legal liability under emergency circumstances to incentivize the rapid development of medical countermeasures. Last spring, Congress expanded liability protections to respiratory protective devices like N95 masks that were in short supply throughout the pandemic.
It was up to Trump’s health department to interpret how the liability protections should work in real life, including cases of life or death due to alleged negligence. Under his interpretation, the law essentially gives cover for decisions nursing home operators made about giving or withholding vaccine doses, protective gear, or other measures in the course of trying to control virus spread. The advisory clarifies that nursing homes and other facilities should earn this immunity as long as they made reasonable considerations about virus mitigation measures, regardless of whether they actually followed through. Only those totally disregarding such measures would fail to be covered by liability protections.
Residents and staff of nursing homes have been among those hit hardest by the virus, accounting for over 132,000 coronavirus deaths — over 20% of the nation’s death toll despite comprising less than 1% of the population. Cases and deaths in the facilities have plummeted since the winter after a robust vaccination campaign.
According to a litigation database, most of the wrongful death lawsuits accuse companies of failing to supply enough masks or protective gear, not enforcing safety measures to keep the virus from spreading, or withholding a resident’s COVID-19 diagnosis from family.
Recently, a federal judge in California found that a nursing home was shielded by federal liability protections, and another in Louisiana agreed to consider a similar request. And though most of the lawsuits are still pending, judges in at least 30 other cases have reportedly rejected nursing homes’ requests to change venues. But even when the courts have ruled against nursing homes, legal experts told POLITICO that appeals could drag out the cases for months or even years longer, which could discourage others from filing lawsuits.
Nursing homes had reportedly long complained that the federal government failed to quickly deliver on its promises to provide protective equipment, like masks and gowns, leaving residents and staff exposed to the virus at the start of the pandemic. The nation’s largest nursing home lobby claims that state and federal guidance on things like testing and PPE often conflicted and was too slow, which the organization says made it “nearly impossible” for facilities to follow ever-evolving best practices.
Plaintiffs who can’t press their liability claims in court because of the Prep Act can also seek compensation from a government fund maintained by a small HHS agency, the Health Resources and Services Administration. However, odds of success are low and the payout would be smaller, not to mention it would be taxpayers and not nursing homes footing the bill. The agency as of last month had reportedly received 50 complaints alleging that nursing homes caused death or harm from COVID because of poor infection control measures.
Now, some consumer groups and legal experts are calling on the Biden administration to revoke or narrow the previous administration’s guidance on liability protections.