Covid Pits Nursing Homes Against Seniors’ Groups Over Liability

Nursing homes are taking on the nation’s senior citizens’ groups over whether to extend new liability protections to long-term facilities.

Senate Republicans, with the backing of industry groups, want new liability shields to cover a host of health-care businesses, including hospitals, doctors’ practices, and nursing homes, as a way to encourage them to reopen their doors.

Groups led by AARP, the nation’s largest nonprofit for seniors, are pushing back on new liability shields. AARP is opposing executive orders in 19 states that have granted some kind of lawsuit protection for nursing homes. They warned the leaders of the Senate Judiciary Committee against passing legislation that mirror those protections for assisted living facilities, according to a spokesman for the group.

“While some circumstances may be beyond the facilities’ control, it is essential that long-term care providers, as well as health care providers more broadly, remain responsible for any negligent actions that fail to protect the health and lives of residents,” Nancy LeaMond, executive vice president and chief advocacy and engagement officer for AARP, wrote lawmakers in a letter Tuesday.

The Covid-19 outbreak has stepped up pressure on nursing homes to protect their residents, but Congress has yet to agree on how to react. Some lawmakers have sought to expand oversight of the industry and demanded federal authorities outline new safety guidelines for the industry and others to follow.

Photographer: Scott Olson/Getty Images

The CMS and CDC will work together in their effort to prevent Covid-19 outbreaks at hospitals and nursing homes.

People who live or work in long-term care facilities, such as assisted living and residential care facilities and nursing homes, have been disproportionately affected by the spread of Covid-19, according to data gathered by the Kaiser Family Foundation. In the 23 states that publicly report data on deaths, more than 10,000 reported fatalities resulting from Covid-19 in long-term care facilities, about 27% of all deaths on those states.

Democratic leaders have said they don’t back expanding liability protection, but hospital and doctors’ groups such as the American Hospital Association and the American Medical Association in recent weeks have lobbied in favor of such moves.

Liability Protections

The Covid-19 outbreak “created an unprecedented public health emergency” and many long-term care facilities are concerned about facing lawsuits while they try to follow new federal safety guidelines, Mark Parkinson, president and CEO of the American Health Care Association/National Center for Assisted Living, said in a statement to Bloomberg Government. His organization represents the interests of assisted living and senior living communities.

“Long term care workers and centers are on the frontline of this pandemic response and it is critical that states provide the necessary liability protection staff and providers need to provide care during this difficult time without fear of reprisal,” he said.

Parkinson’s group is up against a powerful foe in AARP, which spent $2.2 million on lobbying in the first quarter of 2020 and spent more than $7 million last year, according to federal lobbying disclosures. The AHCA spent $980,000 in the first quarter of 2020 and almost $4 million in all of 2019, according to disclosures.

AARP’s state advocacy efforts have been expanding in recent years, laying the groundwork for drug pricing measures passed by dozens on states, according to the group.

Consumer groups such as Public Citizen and the Center for Justice and Democracy have sided with AARP against broad liability protections for businesses.

Recovery Seen `Stunted’

Senate Republicans, however, have said the protections are needed to restart the U.S. economy.

John Cornyn (R-Texas), leading the effort to create a liability protections bill, said on the Senate floor Tuesday that goal is to “prevent frivolous and nuisance lawsuits from harassing our frontline health care workers and small businesses” which are making an effort to operate safely.

“Without limiting liability for our small business owners and workers, our economic recovery will be stunted as a result of the fear of the negative impact of these frivolous lawsuits,” he said. “That’s the situation we need to address and prevent.”

Sen. John Barrasso (R-Wyo.) recently called nursing homes a “prime target” for frivolous lawsuits.

Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) said at a hearing on Tuesday any federal liability protections would be “limited” and not preempt state laws. He also cautioned that the legislation would “not give bad actors a break.”

Sen. Dianne Feinstein (D-Calif.), ranking member of the Judiciary Committee, said one of the reasons long-term care facilities have been reporting so many cases of Covid is “unsafe working conditions” that workers have documented. She said tort laws that allow workers and other to sue these facilities are a “powerful incentive” to ensure businesses protect them from harm.

Democrats have historically opposed limiting tort laws, said Keith Roberts, chairman of the law firm Brach Eichler’s litigation practice. A likely compromise is that Republicans may try to make liability protections a condition of new state aid, he said.

To contact the reporter on this story: Alex Ruoff in Washington at aruoff@bgov.com

To contact the editors responsible for this story: Paul Hendrie at phendrie@bgov.com; Robin Meszoly at rmeszoly@bgov.com