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POLITICO features Leitner Vaughese Warywoda lawyers fighting for nursing home victims' rights

Lawyer Justin Varughese discusses unfair nursing home immunity law
Leitner Varughese Warywoda featured in POLITICO

As residents perish, nursing homes fight for protection from lawsuits


As an unprecedented catastrophe unfolds in which more than 28,000 people have died of Covid-19 in care facilities, the nursing home industry is responding with an unprecedented action of its own: Using its multi-million dollar lobbying machine to secure protections from liability in lawsuits.

At least 20 states have swiftly taken action within the last two and a half months to limit the legal exposure of the politically powerful nursing home industry, which risks huge losses if families of coronavirus victims successfully sue facilities hit by the pandemic. Now, the industry is turning its energies to obtaining nationwide protections from Congress in the upcoming coronavirus relief bill.

The nursing home industry is one of the lobbying world’s quiet powerhouses. The state actions to protect the industry came after it spent tens of millions of dollars in lobbying and other advocacy per year, according to a POLITICO review of state and federal records. At the federal level, the industry has spent more than $4 million on lobbying over the past year, employing more than a dozen full-time lobbyists and drawing on an army of contractors including Brian Ballard, former lobbyist for President Donald Trump, and ex-Mississippi Gov. Haley Barbour, a former Republican National Committee chairman.

In early April, nursing home giant Life Care Centers of America — the multi-state chain whose facility in Kirkland, Washington, was the nation’s first epicenter of coronavirus — hired a team of four former aides to ex-Sen. Bob Corker (R-Tenn.), who was close with Senate leadership, to lobby on Covid-19 issues.

Industry advocates, including the American Health Care Association, which represents nursing homes, argue it would be disastrous for care facilities to be held liable for the deaths of elderly residents, who are far more vulnerable to coronavirus than the rest of the population. They also contend nursing homes have been forced to fight the virus while facing shortages of critical protective gear and testing capabilities because of flawed federal policies over which they have no control. They are also adapting to new federal regulations on the fly.

But lawyers and victims’ advocates point to reports of horrifying neglect and egregious misjudgments by nursing homes across the country that they allege contributed to the deaths of residents, and said that, in many states with weak regulations, the threat of a lawsuit represents a crucial protection for the most vulnerable people.

“The stuff that we’re seeing, it’s pretty awful,” said Brian Lee, a former ombudsman and executive director of Families for Better Care, an advocacy group focusing on long-term care. "The ask from the industry is sweeping. This is about the owners protecting their business and their profits.”

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Lee contends some homes have been negligent in failing to protect elderly people from infection.

"They’re supposed to have emergency plans in place,” he said. “It’s supposed to include how to work through a pandemic. They were supposed to be ready for this, they’re not.”

Advocates for the elderly note that nursing homes already have significant legal protections under law – which were further strengthened when the Trump administration watered down Obama-era policies that had blocked homes from forcing residents to forego their right to sue in favor of arbitration. The many homes with documented poor safety records shouldn’t be protected if they, say, fail to send symptomatic residents to the hospital or neglect to set up proper hygiene protocols, advocates claim.

“Knowing the public regulatory system is pretty weak, they want to stop any other place where they would be held accountable — and that would be litigation,” said Toby Edelman, an attorney with the Center for Medicare Advocacy.

Edelman noted that residents of nursing homes are especially vulnerable to fraud and abuse during times like these when relatives are barred from making visits, where they might witness and report any neglectful practices.

“To me, that’s a frightening combination,” said Edelman, referring to the protection against lawsuits and the lack of a real-time checks on standards of care.

A broader debate over whether to shield corporations from coronavirus-related lawsuits has divided Congress along party lines, with Democrats arguing sick and vulnerable people need to maintain their right to sue, and Republicans arguing businesses will not be able to survive the onslaught of legal action that’s to come without extra protections. But there is far less of a partisan divide among states, where the push for changes in liability for nursing homes has been bipartisan, from Mississippi to Connecticut. In several states, Democratic governors have taken the lead via executive order.

Indemnifying nursing homes is “incredibly unfair, incredibly unjust and leaves an already vulnerable population exposed,” said Justin Varughese, a New York trial attorney who is planning to sue nursing homes in the state, which recently imposed new limits on their liability, signed by Democratic Gov. Andrew Cuomo. “We really need [lawmakers] to amend the breadth of the law to protect the vulnerable here.”

Varughese pointed to cases in which, for example, a nursing home left a dozen or more residents in a room with no personal protective equipment and no consideration for social distancing — situations that he said encouraged the spread of Covid-19, and should be grounds for lawsuits. But the law recently enacted in New York requires that he must be able to show “gross negligence,” a difficult-to-prove legal standard that involves a reckless disregard for safety.

Cuomo signed both the new law expanding liability protection for nursing homes and an additional executive order that relaxes recordkeeping laws for nursing homes and hospitals, which lawyers and victims’ advocates say could further handicap their work.

“If they don’t document what they did and didn’t do, how can they be held accountable for what they did and didn’t do?” said Varughese.

Like many other governors and state lawmakers, Cuomo insists that the industry requires greater legal protection in handling a massive emergency.

“The state was using every type of facility: hospitals, nursing homes, adult care facilities, hospices, ambulatory care facilities, surgery centers, all as possible diagnostic and treatment centers for Covid as we were preparing to face the surge," said Cuomo spokesperson Dani Lever, explaining the decision to relax record-keeping rules and shield owners from some types of liability. "Under the law, health care professionals and facilities [still] must act in good faith, and no one is shielded from liability for gross negligence, or intentional criminal conduct."

In New York, a powerful lobbying group called the Greater New York Hospital Association, which represents hospitals that in some cases own nursing homes, drafted the legislation that expanded protections for the industries. The association spent nearly $3 million lobbying the New York state assembly in 2019 alone, state records show.

The law specifically states that short-staffing doesn’t qualify as “gross negligence” or other grounds on which a nursing home can be sued.

But some state lawmakers say they weren’t given proper notice about the liability protections, which were passed as a part of the state’s budget bill — and now they have regrets.

“I’m very much opposed to what we enacted, and also not happy with how we did it. It was inserted in the budget as an amendment from the governor in the last hours, or day, or so of our work on the budget,” said New York state Assemblymember Richard Gottfried (D-New York City), chair of the state assembly’s health committee. Gottfried said he’d like the legislation repealed, but expects a “very uphill fight.”

“People can look at this as a technical legal issue, but if your loved one is being mistreated in a nursing home or is the victim of mistreatment or negligence, or if a hospital or nursing home is guilty of health and safety violations, you want something done,” Gottfried said.