Since April, groups representing California’s long-term care (LTC) facilities have been seeking immunity from the governor from criminal prosecution and civil and administrative lawsuits for decisions made during the COVID-19 outbreak.
The California Association of Health Facilities (CAHF), which represents nursing homes, said the state’s nursing homes are asking for the same immunity given to hospitals during emergencies, and expressed their concerns in the following excerpt from their April letter to the governor:
“California’s health care workers and those serving in supporting roles are on the front lines of a crisis unlike any our state has ever faced. Sadly, in the coming days and weeks, they will face wrenching, life-threatening decisions in managing scarce resources amid arduous conditions.”
The letter also asks that healthcare providers be given the “support they need to make the best possible decisions, including protections from future legal action as long as that liability protection does not excuse willful misconduct.”
Immunity being sought by LTC providers has been vigorously opposed by advocates for residents in LTC facilities. During a news conference, the executive director for California Advocates for Nursing Home Reform explained the advocates’ position, saying, “What it would do is excuse elder abuse” and remove protection for nursing home residents whose lives are already in jeopardy due to COVID-19. The director pointed out that staffing requirements had already been suspended, visitors are not permitted along with long-term care ombudsman and healthcare inspectors.
As July approaches, the advocates are attributing the lack of response supporting immunity from the governor to a shift in thinking related to media exposure of a need for more accountability, rather than less, which they believe would happen should legal immunity be given.
Compliance Perspective
Despite passage of state laws giving immunity to protect LTC providers from criminal prosecution and civil/administrative lawsuits related to the COVID-19 crisis, a facility’s failure to provide adequate infection control, staffing, and sufficient personal protective equipment (PPE) may be considered abuse and neglect, and could be deemed provision of substandard quality of care, in violation of state and federal regulations.
Discussion Points:
- Review policies and procedures that comprise the facility’s Infection Control Plan, staffing levels necessary to provide care required by residents, and the Centers for Disease Control and Prevention (CDC) and Centers for Medicare & Medicaid Services (CMS) guidelines for responding to COVID-19.
- Train staff about abuse, neglect, infection control, and CDC/ CMS guidelines for controlling the spread of COVID-19 among residents and others.
- Periodically audit to ensure that even during the COVID-19 crisis, residents are free from abuse and neglect, and that required infection control measures are followed.
