‘A License for Neglect’ granted to Nursing Homes

A staggering one-third of COVID-19 fatalities in most states are occurring in long-term care facilities and nursing homes. With 28,100 deaths and 153,000 infections in nursing homes and elderly long-term facilities across the United States so far, the rampant growth is an exponentially growing situation. These numbers include both nursing home residents and workers. These cases are heavily concentrated along the east coast and the midwest, following the general pattern of COVID-19 cases. Many residents and family members feel that some care facilities are failing to take proper precautions to protect staff and elderly residents during the pandemic. As a result, many parties want to hold these negligent nursing homes accountable.

In response to this increase in legal action against them, nursing homes are currently arguing for civil liability immunity, meaning that they would be protected from any lawsuits filed against them during the period of COVID-19. Immunity laws have been signed across the country to protect nursing homes from being sued for criminal or civil lawsuits due to their shortages of staff members or resources throughout the pandemic. While these immunity laws are meant to protect nursing homes from being sued for COVID-19 issues that they cannot control, others fear that these laws could prevent them from being liable for intentional wrongdoing and carelessness. This topic has become highly controversial, as legal protections have not been specifically placed on nursing homes for their staff members.

“No one knows what the next steps will be to protect our elderly family members, both physically and legally. This pandemic has caused new issues to arise that we have not seen specifically in the legal field, but lawyers across the country are looking to help those in need,” said Attorney Lawrence Buckfire of Buckfire & Buckfire, P.C. in Southfield, MI. “People just want to protect their loved ones during this time, and if a nursing home is failing to protect those who live there, it is the nursing home should be held accountable.”

Generally, regulations for nursing homes vary on a state by state basis with the federal government giving general guidelines and low supervision. However, amidst COVID-19, nursing homes have taken upon further restrictions. In terms of visitors, nursing homes are currently instructed to reduce visitors as much as possible, with the exception of end-of-life situations. Nursing homes have been instructed to limit ombudsmen, who are government officials that provide oversight and look into complaints towards businesses. They have also been told to restrict any state inspections and to stop enforcing penalties. However, many family members of nursing home patients have begun filing lawsuits against the care facilities that have failed to follow these regulations and to provide adequate care.

These regulations have both protected and harmed nursing home residents and staff alike. Richard Mollot, executive director of the Long Term Care Community Coalition in New York that advocates for nursing home residents across the United States, explained that “All of a sudden, you have this just total lack of monitoring and accountability. And then on top of it, you’re taking away even the remote possibility that you could be held legally responsible... It’s basically a license for neglect.” In addition to these regulations that have been protecting some care facilities from liability, there has been an ongoing shortage of supplies needed to handle potential COVID-19 patients since March. States such as Maryland, Tennessee and West Virginia have begun testing all employees and residents of nursing homes. In May, the Federal Emergency Management Agency began sending extra supplies to nursing homes across the country. Another ongoing issue is deciding where to put nursing home residents when they come out of the hospital from critical care. Nursing homes do not necessarily want to take their residents back who still have COVID-19 or are recovering. Since hospitals are using their beds for patients in the most acute state, they are often pushing elderly patients out as soon as they are capable.

These actions force nursing homes to have to take the residents back into their care, putting employees and other residents at risk. Recent guidelines by the American Health Care Association stated that nursing home residents that have tested positive with COVID-19 should only be around other residents that have COVID-19. Nursing homes can only accept residents who have tested negative for COVID-19 or are symptom-free. As states begin to reopen, nursing homes and its staff members will continue to bear the brunt of the pandemic as they struggle to obtain supplies and care for their patients.