INDIANAPOLIS — Nursing homes and other long-term care facilities account for more than 40% of COVID-19 deaths nationwide, though testing gaps and flawed record-keeping obscure the true spread of the virus.
As deaths and cases escalate, legislators wrestle with the issue of legal immunity for nursing homes, which house some of the most vulnerable patients. At the request of the senior care industry, more than 20 states have passed new laws to shield senior care facilities from coronavirus-related litigation or protected them through executive orders.
Indiana clarified in early April that facilities providing healthcare services during a declared disaster emergency, including COVID-19, can’t be held civilly liable for care provided “unless the care resulted from gross negligence or willful misconduct.”
The nursing home industry says that protection will allow overburdened caregivers to do their jobs without the looming threat of a lawsuit during a worldwide pandemic. But patient advocates and some legal experts warn that sweeping immunity may protect bad actors and lower the standard of care in nursing homes.
“Families need that (legal) ability to hold facilities accountable if residents are harmed, neglected or abused and facilities shouldn’t be granted immunity from that,” an AARP Indiana spokesperson said via email.
With the protection, the state raises the legal bar for families trying to receive compensation for negligence or willful misconduct. To prove either charge, families must show that there were intentional violations or outrageous omissions of care — both complicated by the inability of families to visit their loved one’s facilities during the crisis.
Concerned about the lack of transparency, AARP Indiana repeatedly called for the state to publicize information about cases and deaths in long-term care facilities. The department of health ceded earlier this month and said it would create an interactive dashboard and release that information Wednesday.
The organization said that “a request to extend (liability protections) or make it permanent is something we will be watching very closely.
“While there may be some circumstances beyond facilities’ control for which they should not be held responsible, it’s important to get all the information possible before any kind of further immunity is granted for facilities.”
Industry advocates say that coronavirus-related lawsuits could tie them up in court and drain their finances, hurting their ability to provide care.
The National Health Care Association, representing thousands of nursing homes across the country, asked lawmakers to consider limited immunity for nursing homes “so that they can continue to offer quality care during this challenging time without fear of reprisal.”
The Indiana Health Care Association/ Indiana Center for Assisted Living, the local arm of the trade association, said that it supported the current immunity protection, saying that the protection “provides basic assurances to health care providers that their reasonable actions to provide patient care in response to the disaster emergency may be protected.”
Meanwhile, industry leaders and Republican governors, including Indiana Gov. Eric Holcomb, have pressured Congress to provide nationwide liability immunity for businesses in the next coronavirus relief bill, as “frivolous lawsuits” may slow the reopening of the economy and negatively affect businesses.
Complicating the issue of immunity is what nursing home operators, most of which are for-profit businesses, will do if they aren’t shielded from lawsuits.
Susan Feng Lu, a management professor at Purdue University, studied how nursing homes protected themselves from malpractice litigation before the coronavirus pandemic. She found that corporations restructured in the late 1990s to protect their assets amid a rapid increase in lawsuits and a legal environment they saw as friendly to plaintiffs.
“In 2000, in the United States, we had 17,000 nursing homes but today we only have (about) 15,500 nursing homes,” Lu said. “A lot of nursing homes actually went bankrupt or exited from the market … (or) the big nursing homes chains tried to sell those assets.”
Both actions protected nursing homes from financial troubles in the past, Lu said.
“So if we allow those residents to sue nursing homes, we can see more nursing homes that will claim bankruptcy or exit from the Indiana market,” Lu said.
Smaller nursing homes may continue to operate, but they may have little to no liability insurance, which would decrease potential settlements, discouraging personal injury attorneys from pursuing a case, Lu said.
Another complicating factor in the question of legal immunity could be the shift from private to government ownership — at least on paper — of many Indiana nursing homes. If a county hospital owns a facility, it could be held liable for the actions of that nursing home and taxpayer dollars could be spent in a settlement.
Throughout the state, Hoosier municipalities acquired the licenses of many nursing homes in what an IndyStar investigation found was a move to access bigger Medicaid payments. But the county hospitals that acquired the homes’ licenses didn’t use the extra money to improve care for the facilities, the newspaper found. And the homes continue to be privately operated and the properties privately owned.
Nationwide, for-profit chains account for 70% of facilities, non-profit facilities make up 23% of the market and government-owned homes account for up to 7% of homes. In Indiana, for-profit homes make up approximately 30% of the market, with non-profits accounting for 25% and government-owned homes making up 45% of all nursing home facilities.
Lu emphasized that, at some point, Hoosier seniors will need additional assistance and care that nursing homes provide. So regulators must balance penalizing nursing homes with allowing Hoosiers to seek damages.
“The fundamental question is, ‘If Indiana chooses not to protect nursing homes does the Indiana government have a good substitute for nursing home care?’” Lu said. “If yes, go ahead; help the elderly. If no, then I think that the government needs to think about a clever and good mechanism.”
Democratic gubernatorial candidate Woody Myers, the former State Health Commissioner, released a long-term care “overhaul” that would explicitly oppose any efforts for blanket immunity, contrary to the views of Republican governors.
“We shouldn’t allow for blanket immunity when there are specific areas of responsibility that are not met and injury occurs,” Myers said. “(If) there was an opportunity to remedy the situation and that was not reasonably taken, then I think there should be an opportunity for individuals to go to court to make the case.”