Nursing home operators often condemned the devastating consequences as Covid seized the country five years ago and the emergent deaths in nursing homes began to attract more attention.
But over time, providers weren't equipped to protect themselves in courts and regulators to a surprising degree for some observers. Federal and state interventions were critical to help providers ultimately secure supply and hire the staff they need to combat the pandemic, preventing potential litigation related to attempts to manage the virus.
Close observers fear that their much-appreciated period of bounty is declining.
“There were far fewer personal injury cases than initially expected, but with retraining, that makes sense,” said Joseph Biancari, an attorney who represented nursing homes in several major community compliance cases. “They are very expensive cases to put together. It was hard to find someone to be the first. And I think the plaintiffs found it difficult to find an expert who says the nursing home did the wrong thing.”
Several legal experts said it would be difficult to prove McKnight's long-term care news in some cases that went to court considering the rapid guidance that was tied early in the pandemic.
One of the most important evidence came in 2023 when the Federal Ry judges found that they were not responsible for the deaths of two residents who died in March 2020 by the community.
There was also a serious penalty reversal, including a $600,000 fine against Kirkland, which was significantly reduced at the time of appeal.
In Maryland, an administrative law judge overturned Medicare and Medicaid services penalties for Sage Points totaling $440,000. Biancari said that while six or seven plaintiffs' lawyers have requested records from the facility, indicating that the case is being considered, none of them has made any progress following the ALJ decision.
In the appeal, SagePoint presented a record of its response to its early Covid Outbreak, including precautions such as testing asymptomatic residents. The procedure went beyond what was widely used or mandatory at the time.
These types of victory “really scared many plaintiffs' lawyers,” Biancari said.
Similarly, there may be important legal protections enacted by government leaders.
Preparation, state rules pledged protection
On March 10, 2020, then Director of Health and Human Services, Alex Hazard, enacted the Public Preparation and Emergency Preparation Act, or Preparation Act. Limited liability for “losses related to the management of medical measures such as diagnosis, treatment, and vaccines.”
It blocked a lawsuit of liability against the health care provider with the only exception of death or serious injuries that proved to be the result of “willful misconduct.”
Later that month, Hazard also urged the state to develop state liability protections and exemptions for health professionals in public health emergencies. Many had over 30 created their own regulations by mid-2020.
However, that web of protection does not catch all cases. Some providers, including veteran homes in Massachusetts and New Jersey, have paid millions. Others have not received any particular protections in the state.
“Fortunately, we have managed to apply state immunity in favor of nursing homes, but it continues to require considerable effort,” said Jeff Wolver, a lawyer at Hall Booth Smith.
“The courts also struggled to apply the prep law. Several early decisions have inadvertently narrowed the scope of their exemption,” Wolver told McKnight last week. “It was an unfortunate by-product of an early attempt to remove the case in federal courts under the PREP Act, but I feel that the law remains a viable defense and continues to pursue it when possible.”
In 2022, the Supreme Court decided to avoid issues of responsibility for personnel and allow federal judges to refer to state courts. Guidance from the Court of Appeals has slowed development in terms of the scope of protection based on both PREP and state immunity, Wolber added.
Still, some lawyers said the most powerful effect of immune clauses is to discourage what happens in many cases.
“Plaintiffs' lawyers are really good at picking cases they intend to win,” Biancari said. “I think many plaintiffs' lawyers weren't interested in them given all the hurdles they knew they would face before they faced the ju judge.”
Ultimately, Wolber added that it was impossible to prove that nursing homes had triggered infection, the protection liability law and early “active” defence tactics that appear to “seem to be chilled by the few businesses that decided to pursue some of the early community's claims.”
Funds reduce the threat
Given that many of the early citations and civil lawsuits are related to nursing homes that do not have control over the spread of nursing homes, additional funding that would help them pay for critical personal protective equipment and technological advances did not occur too soon.
Thousands of nursing homes have been covered by federal provider relief funds that cover healthcare-related costs and losses in revenue caused by the coronavirus. The government provided a target distribution of over $9 billion for nursing homes and infection control needs.
Smaller facilities also help to apply for payroll protection programs to offset rising labor costs.
Many states also used additional funds from the U.S. Relief Act to support providers through fee add-ons and other supplemental payments.
Mark Reagan, managing shareholder of Hooper at Lundy & Bookman, said some states' legal disclaimers, federal association relief funds and more than Supplemental Medicaid Dollars had the most impact.
However, that money will run out in 2023 and 2024, and the bailout dollar could pose additional risks five years after Covid first began. The government continues to audit providers and ensure that they are properly funded and used. In January, the Department of Justice announced it would force California nursing home chains to pay $18 million that allegedly scam PPPs by receiving unqualified grants.
Future concerns
Nursing facilities are still inflated in staffing costs, crushed by increased insurance rate hikes, and far fewer domestic businesses offer nursing home policies, Reagan said.
And in some respects, Covid, the disease, is legally under threat. Ulber pointed out that all states' immunity and preparation methods have a sunset. Providers could also face higher expectations when it comes to care for and containment of infectious diseases, as vaccines have changed the landscape in terms of incidents, hospitalizations and deaths.
“On the other hand, people will say, 'You should know what you're doing so far.' And they're right,” Reagan said. “The question is really… what can we do to reconfigure the facility in the worst case scenario? We don't know if the facility will now be given the benefit of doubt from the regulator.”
Spencer Brook, a lawyer for Crowell in New York, agreed.
“I think the providers are much more adapted to their compliance obligations, which should reduce liability,” Bruck said, noting that facilities need to continue to strengthen infection control, staffing and emergency preparedness policies. “However, the forgiveness providers have received for responsibility for their actions during Covid remains in that era and remains in the increased compliance.”
Despite the new covid cases in nursing homes at historically low levels, legal cases that ju apprentices may now feel less willing to understand or allow lapses in care may now become members.
“In five years, memories will fade,” Reagan pointed out.
