Sen. Sherrod Brown headshot
Sen. Sherrod Brown (D-OH)

Senior living and care providers found themselves on the hot seat with the release of a new report from a national consumer advocacy organization that has the support of a U.S. senator and takes several industries to task for seeking COVID-19-related immunity from lawsuits.

The report, “Corporate Accountability: The Next Coronavirus Casualty,” from Public Citizen, was released during a press conference Thursday with U.S. Sen. Sherrod Brown (D-OH) that blasted proposals supported by U.S. Senate Majority Leader Mitch McConnell (R-KY) to grant businesses — including the long-term care industry — immunity from lawsuits related to the COVID-19 pandemic.

Businesses, according to the report, have failed to respond to worker concerns and have not put in place reasonable protections from the coronavirus.

“Workers and consumers need protections from corporations, not the other way around,” Brown said in a statement. “We must hold corporations accountable to keep people safe, especially during this endemic, when millions of Americans are risking their health and safety to go to work.”

The senior living and care industry has taken action to secure protections from liability in lawsuits that may stem from the coronavirus pandemic. Nineteen states have granted at least some types of long-term care providers new immunity from civil liability, either by executive order or statute. The industry now is working to obtain nationwide protections from Congress in the upcoming coronavirus relief bill.

“The COVID-19 pandemic has been challenging for senior living providers on many levels, among them dealing with ongoing shortages of PPE and supplies, and navigating the often-conflicting guidance issued by regulators,” Argentum President and CEO James Balda told McKnight’s Senior Living. “We support reasonable liability protections for senior living communities and their staff, who are on the front lines and have been working closely with our state partners as they communicate with their state lawmakers on this issue.”

Mark Parkinson, president and CEO of American Health Care Association / National Center for Assisted Living, told McKnight’s Senior Living that the pandemic created an “unprecedented public health emergency,” and there is concern about the potential liability of healthcare providers, including long-term care facilities, responding to the pandemic and providing care while following updated guidance issued by federal agencies. 

“The CARES Act includes Good Samaritan language that provides additional federal liability protections for volunteer health care professionals during the COVID-19 emergency response. The Public Readiness and Emergency Preparedness Act (PREP Act) provides broad immunity protections to healthcare professionals who administer or use countermeasures covered by declarations issued by the Secretary of Health and Human Services. In March, the Secretary of HHS issued a letter and guidance urging state governors to take action to protect healthcare professionals, who are working round the clock during the pandemic, from medical liability,” Parkinson said.   

“While we appreciate these initial steps and support from the federal government, more needs to be done to afford appropriate legal protection to those that are working hard to prevent and contain this virus from spreading. 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,” he added.  

The American College of Health Care Administrators was one of several provider advocacy organizations that signed a May 20 letter to U.S. Rep. Nancy Pelosi (D-CA) and U.S. Sen. Chuck Schumer (D-NY) asking Congress to provide “reasonable liability limits” to protect providers from lawsuits related to COVID-19.

“The virus that causes COVID-19 is far more easily transmitted than we knew, and viral transmission occurs before the manifestation of symptoms. …We should not be held liable for something that we did not know was happening and had no way to prevent from spreading,” ACHCA President and CEO Bill McGinley told McKinght’s Senior Living

The Public Citizen report focuses on 20 companies, including senior living community and nursing home operators, as examples of why the consumer advocacy group says Congress should not grant businesses immunity from coronavirus-related lawsuits. 

“Nursing homes and other long-term care facilities have also become an epicenter of the virus,” the report states. “Older Americans are particularly susceptible to the virus, especially individuals with underlying conditions This vulnerability makes it vital to take every reasonable precaution to protect the people who live and work at these institutions. When workers have been denied PPE and steps to protect residents not taken, the results have been catastrophic.”

A Brookdale Senior Living assisted living and memory care community in New Jersey is mentioned because, according to media reports, an 83-year-old resident with dementia wandered from the community four times. In April, police found the woman walking at night and returned her to the community, the report states, adding that the resident tested positive for COVID-19, as did 10 other community residents.

Life Care Centers of America, which operates senior living communities in addition to nursing homes, also is featured in the report, which says that federal health inspectors identified safety protocol breakdowns prior to the pandemic at several of the network’s facilities. Across the company’s network, there have been more than 2,000 cases and 250 deaths among residents and workers, according to report authors.

Five other long-term care facilities are named, as well as grocery and “big box” stores and companies in the meat, warehouse / logistics and other industries.

“These 20 companies are just a few of the most well-known examples of companies that put profit before consumer and worker health during the course of the pandemic,” the report concludes.

The AARP also has come out against immunity for long-term care providers.

In other coronavirus-related news:

  • More than 2,800 assisted living community residents and post-acute nursing patients at CareOne have recovered successfully from COVID-19 so far. New Jersey Gov. Phil Murphy previously gave a shoutout to the provider for working with the state to move its residents from one facility to accommodate residents from another facility ravaged by the virus.
  • Aegis Living has introduced outdoor living rooms as part of a comprehensive reopening plan in response to the COVID-19 pandemic for families to safely visit loved ones.
  • A South Dakota retirement community installed a “visitor booth” with Plexiglas to provide families the ability to have face-to-face conversation from a safe distance.
  • The U.S. Equal Employment Opportunity Commission posted an updated and expanded technical assistance publication addressing questions arising under the federal equal employment opportunity laws related to the COVID-19 pandemic. The publication provides guidance for employers as employees return to work. 
  • As the coronavirus slows its spread in senior living communities, residents still face another health battle in loneliness.

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