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A few paragraphs tucked into the middle of a 70-page coronavirus relief bill, which legislators passed unanimously and Gov. Roy Cooper signed in May, grants broad immunity to nursing homes against civil lawsuits for injuries and deaths incurred during the COVID-19 health emergency.
The legislation covers a wide range of measures that lawmakers wanted to support for adjustment to the state’s health emergency, including provisions for schools, unemployment claims and personal protective equipment. Several measures in the bill mention “nursing homes” by name, such as one section that alters the rules for witnesses to a natural death.
But section 3D.7(a), buried on page 25 of the legislation, adds a new section to Article II of the General Statutes titled the “Emergency or Disaster Treatment Protection Act.”
The section appears to deal with liability for “health care facilities” but defines them in a way to ensure that includes nursing homes and other long-term care facilities — the places where a high percentage of people dying from COVID-19 in North Carolina resided and where they contracted the disease.
The wording of the statute may appear to intend protection for hospitals trying to treat COVID-19 patients. But the statute is written broadly in a way that also extends that liability protection to nursing homes that otherwise could be liable for not testing, failure to report outbreaks, shirking cleaning and failure to take other essential steps to prevent the spread of the disease.
As long as nursing homes can blame any such shortcomings on staffing problems, the legislation appears to offer them a strong safeguard against being held accountable.
This provision in the legislation, despite its wording, was clear to legislators at the time.
N.C. Rep. Billy Richardson, D-Cumberland, called the provision a “get out of jail free card” for the nursing home industry.
“To me it’s an industry taking advantage of a situation to shirk their responsibilities to their residents, to the patients and the citizens of this state,” Richardson said last month. The trial lawyer said he tried to get the bill amended but was not successful.
Despite his misgivings, he and all other lawmakers voted in favor of the bill, which also included several popular bipartisan measures that lawmakers believed were urgently needed during the pandemic.
North Carolina is not alone in granting legal protection to nursing homes. At least 20 states, according to a June 9 Washington Post report, have passed similar measures for nursing homes and other health care facilities.
“Health care providers should have protection when acting in good faith to provide needed health care services during this unprecedented global pandemic,” said Adam Sholar, president and CEO of the N.C. Health Care Facilities Association, in a statement last week when asked why the nursing home industry needed legal immunity during a pandemic.
More than a quarter of the nation’s deaths of those who test positive for COVID-19 are those who lived in nursing homes, according to the U.S. Centers for Disease Control and Prevention. But in North Carolina alone, that figure rises to 45% of state deaths, according to DHHS, and was even higher earlier in the pandemic.
By executive order in March, visitors were barred from nursing homes statewide in an effort to prevent the new coronavirus, which causes COVID-19, from gaining a foothold. Many states issued similar restrictions to guard against the spread of the virus.
This also means the parade of family and others — and eyes that might spot something wrong — are no longer in buildings.
Many routine state and local inspections in nursing homes were also dropped to prevent the spread of the virus, though many have been examined for infection control measures, Sholar said in his statement.
Limiting liability for deaths and injuries amid a pandemic prevents families from getting answers about what happened to their loved ones, said Bill Lamb, board president of a group called Friends of Residents in Long Term Care.
“We are in extraordinary times, and the facilities out there are trying to make good-faith efforts to respond and provide care to their residents, and we know that,” he said.
“But we also know that there are lots of facilities out there that have engaged in dubious practices over time that even with regulations and oversight, bad things happen to people for the wrong reasons.”
Short-staffed homes were not unusual before the pandemic, he said.
“Staffing and adherence to standards of care like cleanliness and infection control measures are really important. It shouldn’t take a pandemic to make us aware of this,” Lamb said.
“North Carolina lags the nation on standards of care, ranking 46th in average nurse staffing hours and 37th in other direct care staff hours.”
However, Ben Popkin, a lobbyist for Friends of Residents, said the language of the bill allows staffing shortages in almost any situation during the pandemic.
“It seems like a complete liability (waiver) for any facility that could say any of the negative outcomes were a result of resource or staffing shortages,” Popkin said.
“It’s pretty close to a complete free pass if you can say whatever went wrong was a result of staffing issues. It seems pretty absolute.”
If a resident or staff member died due to gross negligence, he said, “and the facility could show that resulted from a resource or staffing shortage, it looks like this would give them immunity,” Popkin said.
Friends of Residents had been monitoring legislation, but the group was not consulted for the drafting of the language buried in the pandemic relief bill, he said.
“We try to persistently remind (lawmakers) it would be nice to have actual representatives of the residents and their families, too,” Popkin said.
The new coronavirus is remarkable for its virulence, but it wreaks particular havoc among older adults and those whose health is compromised. Though federal standards exist for infection control, some long-term care facilities still fail to meet them, and some have even been cited in inspections for these shortcomings.
Such sweeping generalizations should not be applied to all nursing homes, said Sholar in an emailed statement. Home operators, he said, “have done everything in their power to care for and protect their patients, residents and staff members.”
“Frankly, fighting it has been a significant challenge for the entire health care community, including nursing homes,” Sholar wrote. “… Our industry remains fully committed to following state and federal guidelines to protect nursing home residents and staff members.”
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