Pennsylvania nursing homes in line to be shielded from COVID-19 lawsuits

Pennsylvania lawmakers on Friday passed a coronavirus liability shield for nursing homes, hospitals, and a collection of other businesses, providing protection from lawsuits long sought by the chronically underfunded long-term care industry as it struggles to operate during the COVID-19 pandemic.

The legislation, decried by advocates for the elderly, would eliminate liability for damages or personal injury related to COVID-19 unless gross negligence, recklessness, willful misconduct, or intentional harm can be shown “by clear and convincing evidence.”

Rep. John Hershey, a Republican from central Pennsylvania, praised the bill as offering protection for businesses, schools, nursing homes and others from frivolous lawsuits. “Businesses deserve protection from lawsuits where no party is at fault for injuries or damages. They don’t need to be burdened with court costs and protracted legal battles when they are operating in good faith,” Hershey said.

Currently, 28 states provide homes with immunity from civil liability, including New Jersey, which also shields nursing homes from criminal liability, according to Sam Brooks, a program manager with Consumer Voice, an national advocacy group for high-quality, long-term care.

Pam Walz, a supervising lawyer at Community Legal Services of Philadelphia, said the change sets the bar for liability “much higher than the normal negligence standard.”

“We’re especially concerned,” Walz said, “because courts are the last line of oversight during the pandemic, since nursing home inspectors and other oversight agencies haven’t been able to have eyes in facilities during much of the time since March.”

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Jacquelyn Bethea, whose 59-year-old son died in April of COVID-19 in a Philadelphia nursing home after what she described as a period of terrible care, said the immunity bill is bad for families. “They’re just going to have to suffer because these lawmakers are trying to protect the owners of these facilities,” Bethea said. “I think it’s horrible because so many people have died from their neglect and negligence and just not caring.”

The liability shield was slipped into a bill introduced in September that would extend to land banks the same environmental liability protection that redevelopment agencies have when dealing with environmentally contaminated sites, according to a news release from State Rep. Chris Rabb (D., Phila.), who opposed the measure.

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That bill was amended first to include civil liability protections for agritourism businesses and then, at the end of the legislative session, to include the protections for nursing homes, Raab said. The “back-door action by Republicans who chose special interests over people is unacceptable, especially considering that we are in the middle of a global pandemic that has claimed the lives of more than 9,600 Pennsylvanians and more than a quarter-million Americans.”

The measure passed in the House by a vote of 104-98 and in the Senate by 29-20, with one senator not voting.

Gov. Tom Wolf’s office did not respond Monday to a request for comment about whether he would sign the bill or veto it.

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In the Philadelphia region and nationally, the coronavirus pandemic has sharply reduced the number of nursing home residents, both because so many elderly have died and because families are warier than ever of placing loved ones in the facilities. The Philadelphia region is home to 234 nursing homes with nearly 23,000 residents. The industry is particularly important in Pennsylvania, which has one of the oldest populations in the nation.

Nursing home operators and their representatives argued from early on in the pandemic that they were doing their best under extraordinary circumstances.

“Shortages of personal protective equipment and testing supplies, as well as ever-changing guidance from state and federal regulatory agencies, have created a particularly unfair environment ripe for opportunistic legal action directly related to this emergency,” Zach Shamberg, president and CEO of the Pennsylvania Health Care Association, said in an emailed statement.

The protections for health-care providers would be in effect for the duration of an official disaster emergency and would be retroactive to March.