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Newsweek Spotlights Leitner Varughese Warywoda Efforts for Nursing Home Neglect Justice

For Vivian Rivera-Zayas and her family, the troubles began in January 2020 after her 78-year-old mother Ana Martinez experienced complications from knee-replacement surgery and doctors sent her to Our Lady of Consolation, a nursing home in West Islip, New York, for a few weeks of therapy.

Ana was supposed to return to her Williamsburg apartment by the end of the month, but her discharge was postponed again and again. Then came New York Gov. Andrew Cuomo's March 12 order locking down nursing homes in response to COVID-19. Without daily visits from her family or much access to the Spanish-language newscasts the Puerto Rican native preferred, Ana had little understanding of how the pandemic was spreading across the country and zeroing in on elderly care facilities.

At the end of March, Our Lady of Consolation staff told Ana's daughter Vivian over the phone that it would be promptly discharging Ana, even though by that point she had developed stomach pains, a severe cough, and difficulty breathing. Struggling to figure out what was happening, Vivian began to receive vague and conflicting updates from facility employees every time she called. First they assured her Ana was healthy, then suggested they would be discharging her with an oxygen tank to help her breathe.

Finally, on the day Ana was supposed to return home, the nursing home transferred her to the hospital. The doctors there soon informed her family that Ana had a collapsed lung, and then reported her kidneys had failed. Two days later, on April 1, Vivian received a call from the ICU that caused her to collapse onto the floor, crying out to God. Her mother was gone, having died from COVID-19.

But for Ana's family, the pain wasn't over. In the months that followed, Vivian and her sister Alexa Rivera tried to launch a lawsuit against the Our Lady of Consolation nursing home, so they could uncover what had happened to their mother: why the non-profit facility hadn't sought more extensive treatment when her COVID-19 symptoms first emerged, why they had been ready to discharge her when she had signs of a deadly disease, why more hadn't been done to help her as she lay in her bed, confused and struggling to breathe.

In response to a request for comment on the matter, a spokesperson for Our Lady of Consolation issued a statement that read in part, "As we are constrained by HIPAA obligations, we cannot comment on the care provided to any individual."

The statement also noted, "Catholic Health and Our Lady of Consolation Nursing & Rehabilitation Care Center focus on delivering high quality, compassionate care, which is integral to our mission. We are proud of the extraordinary sacrifice and efforts our highly-trained clinical staff made and continue to make during this ongoing pandemic."

One after another, law firms refused to take the family's case — because the Cuomo administration had recently pushed through a law shielding nursing home owners and operators from legal liability for their actions during the pandemic.

"They got away with killing our mom, and we wanted answers," says Vivian. "But they were telling me the nursing home executives had immunity."

As The Daily Poster reported last May, the Cuomo administration quietly inserted the liability shield provision into the state's 2020 budget bill after a powerful health care industry group that donated more than $1 million to Cuomo's political machine drafted and lobbied for the law.

The provision was ostensibly designed to help nursing homes as they made difficult decisions in the face of an unprecedented emergency. But the law extended the protections not just to medical staff, but also to corporate executives — and critics worried that the law would allow the facilities' owners and operators to cut corners and risk people's lives without repercussions.

As lawmakers pushing to revoke the measure noted in a legislative memo that month, the immunity law "egregiously uses severe liability standards as a means to insulate health care facilities and specifically, administrators and executives of such facilities, from any civil or criminal liability for negligence."

Now, as Cuomo's handling of nursing homes during the pandemic has exploded into a national scandal amid revelations of suppressed COVID death counts alongside reported threats against Cuomo critics and allegations of sexual harassment, The Daily Poster has found the law is indeed insulating nursing home administrators and executives from civil or criminal liability for their actions.

Over much of the past year, the provision has apparently had a chilling effect across the state, causing many lawyers to refuse all new nursing home-related negligence cases, whether or not they seem to be directly related to COVID-19, and limiting the scope of other legal actions begun before the pandemic. Though New York has seen more than 15,000 nursing home deaths, there have only been a handful of wrongful death cases filed in the state, according to data compiled by the law firm Hunton Andrews Kurth, which has been tracking COVID-related cases.

The result of the immunity law, say those affected like Ana's daughter Vivian, is that they have no way to demand accountability, no way to seek justice. And while efforts are now mounting to revoke the statewide liability shield once and for all, the impact of the law in New York State and beyond will continue to linger, the pain of those who say they were harmed by the law won't soon go away.

"I think the law they passed gave the facilities an excuse to do the bare minimum to keep these people alive," says Vivian. "Cuomo said the COVID-19 threat to nursing home residents was like 'fire through dry grass.' My mother was dry grass — and they brought in the matches."

"Lobbying Money Well Spent"

On April 3, 2020, as the media was reporting on how New York was becoming a global coronavirus hot spot, Cuomo signed into law the state's budget bill for the year, which included a little-noticed provision on page 347 that noted that executives, board members, trustees, and other corporate officials at nursing homes and other health care facilities "shall have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services" related to COVID-19.

The liability shield, which covered both lawsuits and criminal prosecutions, was made retroactive to March 7, 2020. A Cuomo spokesperson would later insist the measure wasn't due to industry influence — but lobbyists suggested otherwise.

The day before the measure became law, the Greater New York Hospital Association (GNYHA) — a major lobbying group that represents hospital systems, including some that own nursing homes, that has donated more than $1.25 million to Cuomo's political operation — sent out a memo stating it had "drafted and aggressively advocated for this legislation."

As GNYHA noted to its members in the announcement, "You and your heroic workers have enough to agonize over without having to worry about liability for decisions and actions made under extraordinarily challenging circumstances."

The provision's effect was immediate.