As just one example, who has the liability in a state like New York where the Administration ordered nursing homes to take Covid-19 infected, or presumably infected patients?
And further ordered that nursing homes would not be allowed to test patients returning from hospitals?*
What a mess.
From Insurance Journal, May 10:
Faced with 20,000 coronavirus deaths and counting, the nation’s nursing homes are pushing back against a potential flood of lawsuits with a sweeping lobbying effort to get states to grant them emergency protection from claims of inadequate care.
At least 15 states have enacted laws or governors’ orders that explicitly or apparently provide nursing homes and long-term care facilities some protection from lawsuits arising from the crisis. And in the case of New York, which leads the nation in deaths in such facilities, a lobbying group wrote the first draft of a measure that apparently makes it the only state with specific protection from both civil lawsuits and criminal prosecution.
Now the industry is forging ahead with a campaign to get other states on board with a simple argument: This was an unprecedented crisis and nursing homes should not be liable for events beyond their control, such as shortages of protective equipment and testing, shifting directives from authorities, and sicknesses that have decimated staffs.
“As our care providers make these difficult decisions, they need to know they will not be prosecuted or persecuted,” read a letter sent this month from several major hospital and nursing home groups to their next big goal, California, where Gov. Gavin Newsom has yet to make a decision. Other states in their sights include Florida, Pennsylvania and Missouri.
Sats one insurance specialist: “Before March, going into 2020 the market was already distressed for long term care providers. Now I would say it’s about as difficult of a market that I’ve ever seen.”
At least 27,700 residents and workers have died from the coronavirus at nursing homes and other long-term care facilities for older adults in the United States, according to a New York Times database. The virus so far has infected more than 150,000 at some 7,700 facilities. In 15 states, the number of residents and workers who have died accounts for more than half of all deaths from the virus.
Watchdogs, patient advocates and lawyers argue that immunity orders are misguided. At a time when the crisis is laying bare such chronic industry problems as staffing shortages and poor infection control, they say legal liability is the last safety net to keep facilities accountable.
They also contend nursing homes are taking advantage of the crisis to protect their bottom lines. Almost 70% of the nation’s more than 15,000 nursing homes are run by for-profit companies, and hundreds have been bought and sold in recent years by private-equity firms.
“What you’re really looking at is an industry that always wanted immunity and now has the opportunity to ask for it under the cloak of saying, `Let’s protect our heroes,`” said Mike Dark, an attorney for California Advocates for Nursing Home Reform.
“This has very little to do with the hard work being done by health care providers,” he said, “and everything to do with protecting the financial interests of these big operators.”
New York
Nowhere have the industry’s efforts played out more starkly than in New York, which has about a fifth of the nation’s known nursing home and long-term care deaths and has had at least seven facilities with outbreaks of 40 deaths or more, including one home in Manhattan that reported 98.
New York’s immunity law signed by Democratic Gov. Andrew Cuomo was drafted by the Greater New York Hospital Association, an influential lobbying group for both hospitals and nursing homes that donated more than $1 million to the state Democratic Party in 2018 and has pumped more than $7 million into lobbying over the past three years.....MUCH MORE
While the law covering both hospital and nursing care workers doesn’t cover intentional misconduct, gross negligence and other such acts, it makes clear those exceptions don’t include “decisions resulting from a resource or staffing shortage.”....
*From May 6's "Re/Insurance: "Berkshire Hathaway will write pandemic cover 'at the right price', Buffett says" (BRK)":
DATE: March 25, 2020
TO: Nursing Home Administrators, Directors of Nursing, and Hospital Discharge Planners
FROM: New York State Department of Health
....No resident shall be denied re-admission or admission to the NH solely based on a confirmed or suspected diagnosis of COVID-19. NHs are prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-1 prior to admission or readmission.....
Underlining in original.
