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Important Message re COVID-19 and SNF Industry's Request for Immunity

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Nursing Home Trial Lawyers

Important Message re COVID-19 and SNF Industry's Request for Immunity

Dear Friends,

This week, our Governor is considering issuing an executive order broadly granting immunity to healthcare providers for all misconduct short of fraud or intentional conduct. This broad means even nursing homes cannot be sued for negligence, gross negligence, or even recklessness.

Many will debate the wisdom and necessity of such immunity, or any immunity, during the current crisis. Some suggest the governor should not gone so far, and should instead still allow suits for cases of gross negligence and recklessness in nursing homes. There are many strongly held opinions on both sides of the debate.

I want to share with you my thoughts on the nursing home industry’s attempt to piggyback on the sympathies we all feel for frontline healthcare providers in hospitals.

First, we are all immensely grateful to the brave physicians, nurses, nursing assistants and other healthcare staff at hospitals and healthcare facilities across the country who are risking their lives every day to take care of us. My statement and views are only directed at large nursing home chains.  

One of the arguments raised by the industry is they don’t want be sued for deficient care that results from staffing shortages during the current pandemic.

This concept of “staffing shortages” in nursing homes is an important issue that affects anyone who may one day need nursing home care or who currently has a family member in a nursing home. And here is the message I want to share with you:

While it may be true that currently-in these unprecedented times- nursing homes may face staffing shortages, before the current pandemic started, neglect didn’t happen in nursing homes because there was a lack of nurses and aides willing and able to show up to work.

The number one reason why neglect happens in nursing homes is because the owners of these facilities choose not to use money federal funds to hire enough staff.

It’s a pretty simple formula. The nursing homes tell the government how high the needs of their residents are, and the government pays the nursing homes the amounts necessary to meet those needs. The higher the needs of the residents reported by the nursing homes, the higher the reimbursement paid by the Government. In return, the government expects the nursing homes to use that money to provide a certain, definitive level of staffing. The problem is, the level of staffing the nursing homes actually provide is almost always astronomically lower than the staffing levels the government expects them to provide.

Many studies show a direct link between understaffing- which before the Corona Virus pandemic was rampant in nursing homes- and development of pressure ulcers, falls with injuries, infections, abuse of chemical restraints, and other forms of neglect.

But today, when its estimated that 20% of COVID-19 deaths in the United State are suffered by nursing home residents, large nursing home chains are being given blanket immunity, without being asked to give back anything in return.

You may be asking yourselves, what do I want the nursing home chains to give back in return? Aren’t they expected to do enough, in the face of this global pandemic?

There is a two part answer to this question: Number 1- Elder Neglect- the root cause of which is always greed and fraud- is vastly different from cases of medical malpractice, which center on actions by physicians that are below the standard of care.

Today, physicians fighting the pandemic are faced with extremely difficult choices, and there is some merit to the argument that if they make the wrong decision, given the current circumstances, they should not be sued absent fraud or intentional conduct.

But in a nursing home, the nurses and caregivers have to play the cards they are dealt, and the people dealing those cards are the owners of the facilities.

Number 2, its important for the public to know that in nursing homes, whoever controls the money, controls the level of care. There is something well known to those familiar with the nursing home industry as “Related Party Transactions.” This is when the same people who own the nursing home also own the building the facility pays rent to and the entities that provide services to the nursing home, such as management, marketing, payroll services, etc..

By law, the administrator of the nursing home has to be in charge of making sure the revenues received by the facility are spent in the best interests of the residents. But in reality, the owners deplete revenue by making inflated payments to themselves, leaving the facility woefully understaffed, while raking in millions in profits every year, which they use to buy up more facilities, which they then use to engage in the same related party transactions.

Given what I know about how the industry works, its disturbing to think that the Governor would mention large nursing home chains with a poor history of care in the same breath as the healthcare workers risking their lives to fight this global pandemic.

So back to the question- what should the public demand from nursing homes in return for this blanket immunity?

I have a very reasonable, and enforceable suggestion: Before granting any immunity, the Governor should require all nursing homes to agree to the following conditions.

  1. Properly store piles of PPE for the next pandemic (This can be determined by an advisory board).  Proper PPE stockpiles should become part of all state inspections.
  2. Proper staffing. Not minimal staffing, which large chains usually aspire for and many times do not even meet. But proper staffing- the staffing the Federal Government expects them to provide, and pays them to provide.
  3. All related party transactions must be PROVEN to be at market value or they are disallowed expenses and can not be used for reimbursement calculations. That means, nursing homes should not be allowed to inflate the actual cost of operations by paying themselves more than market value, and than expecting the government to reimburse them based on those inflated costs.
  4. And finally, In future expansions, if a chain attempting to purchase a facility violated any of these conditions in the last two years, the sale should be denied by the state.

I implore you to reach out to the Governor’s office, and press them to put these conditions on nursing homes in return for the same immunity granted to hospitals, physicians and front line nurses. The nursing homes should have to sign off on these conditions, and if they don’t sign, they should not be given any immunity.

Thank you for listening, and thank you in advance for calling the governor’s office.

You may contact him by:

  • Submitting an online comment here.
  • Or contacting his office via telephone at: (916) 445-2841.
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