In response to coronavirus pandemic, the nursing home industry is seeking broad immunity from COVID-related harm. Through executive orders and state legislation, Governors and states are rapidly granting immunity to various health care providers, including nursing facilities.
The Nursing Home Industry’s Interest in Preventing Litigation is Longstanding.
When the federal standards of care for nursing facilities participating in Medicare, Medicaid or both (called Requirements of Participation) were revised in October 2016, they contained an explicit prohibition against mandatory pre-dispute arbitration provisions in nursing home admissions contracts. Such provisions prevent residents and their families from filing lawsuits against nursing facilities. Although the Requirements reflected the first comprehensive revision in 25 years, and strengthened resident protections in many areas, the nursing home industry filed a lawsuit solely about arbitration. A Mississippi federal district court granted a nationwide preliminary injunction on November 7, 2016. The Trump administration published proposed rules and then final rules, which permit pre-dispute arbitration agreements, with certain resident protections. Nursing facilities again filed a lawsuit challenging four provisions of the new regulations. The new rule was upheld by a federal district court in Arkansas in April 2020.
The Administration called for immunity in March. In a March 24, 2020 letter to Governors, HHS Secretary Alex Azar wrote, “For health care professionals to feel comfortable in expanded capacities on the frontlines of the COVID-19 emergency, it is imperative that they feel shielded from medical tort liability.” He continued, “Given variation in the scope of these state laws, it is particularly important for states to issue guidance publicly, outlining the available liability protections during the COVID-19 emergency.”
State nursing home trade associations call on their states for immunity. Following calls by the national nursing home trade associations for immunity, a number of state nursing home associations have sought immunity, sometimes jointly, sometimes with other health care providers at the state level. As described in detail in the Report, these states include California, Connecticut, Florida, Pennsylvania, and Washington.
A number of Governors have issued Executive Orders giving broad civil immunity to health care providers for acts and omissions, injuries and death, during the pandemic, except, generally, for willful misconduct, gross negligence, or actual malice. The Executive Orders typically also recite that the lack of resources or staff does not constitute willful misconduct or gross negligence. State legislatures also have enacted legislation to grant immunity to nursing facilities, among others.
Executive Orders and Declarations have been issued in Arizona, Arkansas, Connecticut, Georgia, Illinois, Indiana, Kansas, Michigan, Mississippi, Nevada, New Jersey, Pennsylvania, Rhode Island, Vermont, Virginia.
State laws giving immunity to nursing facilities, among others, have been enacted in Kentucky, Massachusetts, New Jersey, New York, and Utah.
During the COVID pandemic, longstanding regulatory protections for residents are waived, there are no family visitors, no ombudsman visitors, and few if any surveyor visits. There is limited enforcement, and facilities are receiving additional Medicare and Medicaid reimbursement. Granting broad immunity to nursing facilities under these circumstances increases the enormous risks that residents are already facing. Further, granting such immunity also fulfills the nursing home industry’s longstanding efforts to avoid accountability by preventing litigation.
The Center’s full report, with links to the Governors’ Executive Orders and state laws, is available at https://medicareadvocacy.org/wp-content/uploads/2020/05/Special-Report-Nursing-Home-Immunity.pdf
May 14, 2020 – T. Edelman
 81 Fed. Reg. 68688, 68790 (Oct. 4, 2016).
 American Health Care Association v. Burwell, 217 F.Supp.3d 921 (N.D. Miss. 2016).
 82 Fed. Reg. 26649, 26650 (Jun. 8, 2017).
 84 Fed. Reg. 34718 (Jul 8, 2019).
 The prohibition on requiring a resident to sign an arbitration agreement as a condition of admission, 42 C.F.R. §483.70(n)(1); the requirement that an arbitration agreement be explained in a language that the resident or resident’s representative understands, §483.70(n)(2)(i); the 30-day right of rescission for residents signing an arbitration agreement, §483.70(n)(3); and the five-year retention requirement, §483.70(n)(6).
 Northport Health Services of Arkansas v. United States Department of Health and Human Services, Case No. 5:19-CV-5168 (W.D. Ark., Apr. 7, 2020), https://cases.justia.com/federal/district-courts/arkansas/arwdce/5:2019cv05168/58185/44/0.pdf?ts=1586337487.
 See LeadingAge’s March 25 letter to HHS Secretary Azar, https://skillednursingnews.com/wp-content/uploads/sites/4/2020/04/LeadingAge-Secretary-Azar-Letter-PREP-Act.pdf; and a similar Statement by the American Health Care Association, April 14, quoted in Maggie Flynn, “Multiple States Take Steps to Shield Nursing Homes From Liability Amid CoVID-19 – But Rules Vary,” Skilled Nursing News (Apr. 19, 2020), https://skillednursingnews.com/2020/04/multiple-states-take-steps-to-shield-nursing-homes-from-liability-amid-covid-19-but-rules-vary/.