POLITICO features Leitner Vaughese Warywoda lawyers fighting for nursing home victims' rights
As residents perish, nursing homes fight for protection from lawsuits
By MAGGIE SEVERNS and RACHEL ROUBEIN 05/25/2020 09:46 PM EDT
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.
Lever, the Cuomo spokesperson, responded that “elected officials cannot be blindsided by language in a bill, unless they don’t read it.”
In California, a coalition of nursing homes and provider groups wrote to Democratic Gov. Gavin Newsom in early April asking for unusually broad protections from liability. The groups, which collectively spent $1.1 million lobbying the state government in the last year, suggested an executive order that would shield them from “any administrative sanction or criminal or civil liability or claim,” unless there is “clear and convincing evidence of willful misconduct,” according to a letter obtained by POLITICO.
Advocates for nursing home patients in California expect Newsom to sign an executive order at some point in the coming days. Newsom’s office did not respond to a request for comment.
And a separate letter to lawmakers sent by nursing home and hospice associations in Connecticut used track changes to amend language suggested by other health care lobbyists so it would mimic nursing homes’ preferred language on legal liability.
In early April, Democratic Gov. Ned Lamont signed an executive order giving civil liability coverage to nursing homes and other health care providers. It did not use the exact language suggested by the associations but gave them a similar level of legal protection.
Other states passing new laws and issuing executive orders providing some level of protection for nursing homes ranged from deep red Alabama and Arkansas to Democratic-led Illinois and Michigan. In Pennsylvania, Democratic Gov. Tom Wolf signed an executive order granting immunity to health care practitioners — but the industry is pushing for broader protections.
“The last thing these providers and those on the front lines should have to be concerned with is the threat of an impending lawsuit,” Zach Shamberg, president and CEO of the Pennsylvania Health Care Association, said in a statement.
But the nursing home industry has consistently received criticism for failing to meet federal standards for measures like proper handwashing and isolating sick residents. The vast majority of nursing homes were cited for deficiencies in infection prevention and control between 2013 and 2017, according to a new federal watchdog report, which noted "many of these practices can be critical to preventing the spread of infectious diseases, including Covid-19.”
“You've got facilities full of really sick patients that are cycling in and out of the hospital. It's going to be a challenge for any lawyer to prove that the specific breach on the nursing home’s part is what caused that person to contract Covid,” said Michael Brevda, a partner at Senior Justice Law Firm, which is pursuing at least eight lawsuits related to coronavirus in nursing homes in New York, Florida and Pennsylvania.
The back-and-forth on Capitol Hill over whether to enact a national liability protection for nursing homes and other industries is proving more complicated.
While Senate Majority Leader Mitch McConnell (R-Ky.) and House Minority Leader Kevin McCarthy (R-Calif.) have already said broad immunity protections for businesses are “absolutely essential” for Republicans to sign off on another coronavirus relief bill, most Democrats are vehemently proposed.
Senate Republicans have not released any public proposals for expanding liability protections. One lobbyist who had seen multiple proposals from the nursing home industry said that, similar to some state laws, the industry had advocated for a high bar for liability, such as cases of gross negligence.
McConnell, along with a top ally, Sen. John Cornyn (R-Texas), is working to craft the legislation, which they say won’t protect bad actors.
“We should not put our health care workers in an impossible situation where we ask them to do everything they can to help and then we punish them by subjecting them to litigation when somebody claims that they could or should have done better,” Cornyn said on the Senate floor last week.
Mark Parkinson, president and CEO of the American Health Care Association, said in a statement to POLITICO, “We encourage states and the federal government to take action to extend immunity provisions to the long term care providers and other health care sectors associated with care provided during the COVID-19 pandemic.”
“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,” Parkinson said.