Nursing homes ask for additional liability protection to open COVID-19 only units


Whitmer’s office did not respond to a request for comment. She told a small business group that existing state law is sufficient and “anyone taking reasonable care to protect workers and customers cannot be held liable in court.”

Scott Lyon, senior vice president with the Small Business Association of Michigan, said SBAM’s 28,000 small business members have been concerned about COVID-19 related lawsuits since the beginning of the pandemic.

“It is our understanding that the governor was not willing to go any further on liability protections for any businesses, including health care related businesses, during the previous liability protection legislation negotiations, which we supported,” Lyon said in an email to Crain’s.

Lyon said he doubts Whitmer will issue another executive order to address nursing home concerns. Moreover, he said any executive order could be challenged in court if a business were sued.

“We would support it, but much more prefer legislation,” Lyon said. “(It) would be better for nursing homes and all small businesses.”

Samuel said HCAM has been talking with several legislators and the governor’s office about sponsoring liability legislation.

“Skilled nursing facilities are an essential part of the continuum of care and have provided critical services during this pandemic,” Samuel said. “HCAM is requesting that the same level of immunity providers were granted at the beginning of the pandemic continues as they continue the fight to protect our residents from COVID-19.”

Hank Vaupel, R-Fowlerville, chair of the House health policy committee, said he would support a similar bill to HB 6159 that extends additional liability protection to nursing homes and other health care entities. He said he expects one will be written in the coming weeks.

“(Health care businesses) should be relieved of some of the liabilities if the protocols were in place, and if they operating under the guidelines with what they are charged to do,” Vaupel said. “The (special patient units) have to meet certain requirements before they take COVID-19 patients.”

Vaupel also said nursing homes should provide nonclinical staff with proper training to protect themselves from coronavirus infections.

“Lots of the spread was from the nonclinical staff. If all the nursing homes were complying, there would be less spread,” he said.

Nationally, more than 70,000 residents and employees at long-term care facilities have died because of the COVID-19 pandemic since mid-August and more than 300,000 have been sickened, according to Kaiser Health News. Nursing home facility deaths account for approximately 41 percent of COVID-19 deaths in the U.S.

The COVID-19 pandemic has been especially devastating to nursing homes in part because of residents’ advanced age and increased susceptibility to the virus.

As the number of COVID-19 deaths in nursing homes steadily grew, family members of residents and staff in other states began to file lawsuits against the facilities.

Samuel said HCAM is not aware of any lawsuits filed against Michigan long-term care facilities.

More than 20 states have enacted some liability protection legislation or their governor has signed executive order.

For example, governors in Michigan, Connecticut, Maryland, Illinois and Pennsylvania signed limited protections. Legislation was approved in New York, New Jersey and Massachusetts. Legislatures in California and Florida have refused.

Congress has also debated health care immunity laws, but Republicans and Democrats can’t agree on the scope of immunity.



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