Pennsylvania nursing home and long-term care providers pleaded with senators this week for liability protections as fears of lawsuits over the coronavirus pandemic grow.
“We need the House and Senate to protect healthcare providers from frivolous suits and staggering liability insurance premium increases,” said Adam Marles, president of LeadingAge PA, during a hearing with the Senate Aging and Youth Committee. “Many members have received their policy renewals, with premium spikes near half a million dollars, before any suit has even been filed.”
Marles’s organization represents 360 nonprofit senior housing providers that serve more than 75,000 residents and employ 50,000 staff. He said shifting guidance on how to address COVID-19 outbreaks in senior living facilities, barriers to testing and a lack of personal protective equipment have hamstrung providers since the very start of the pandemic in March.
“Even top quality providers are afraid of lawsuits, whether or not their residents or staff have contracted the coronavirus,” he said during Thursday’s hearing.
Approximately 46,500 residents live scattered among more than 2,000 nursing homes and licensed personal care facilities in Pennsylvania. Among them, more than 17,000 have tested positive for COVID-19 and more than 4,500 have died, comprising two-thirds of the state’s total virus-related fatalities. Another 2,000 workers have also become infected, according to the Department of Health.
Now, additional – often burdensome – data reporting requirements and a July 25 deadline to get all staff and residents tested means providers could not only face onerous lawsuits, but punishment from the state for clerical mistakes or miscommunications made under extreme pressure, Marles said.
“Defending a frivolous claim can easily cost $50,000 to $100,000, regardless of the veracity of the accusation,” he said. “Liability protections are the number one concern of our members, right now.”
Michael Grove, a long term care consultant who also testified before the committee Thursday, said 15 other states – either through legislative action or a governor’s emergency order – have extended some lawsuit protections to nursing homes, where the conditions for spreading the virus remain ripe.
“Personal injury law firms have already begun ads on Facebook encouraging families to contact them regarding concerns they have as it relates to the care of their loved ones in nursing homes,” he said.
Secretary of Health Dr. Rachel Levine testified that although the state prioritized hospitals for PPE shipments in the early days of the pandemic, eventually their attention turned toward resident care facilities.
In total, nursing homes and long-term care facilities received 2.8 million N95 masks, 1.2 million surgical masks, 1.2 millions pairs of gloves, 336,000 face shields and 307,000 gowns – with more stockpile available in the event of a second wave, she said.
“We absolutely prioritized long-term facilities after the rate of hospitalizations went down,” she said. “There’s no shortage of PPE at the time for long term care facilities or hospitals.”
Levine said at least 100 facilities have complied with the universal testing policy – estimated to cost $33 million – the department mandated June 8, and testing rates overall have increased 30 percent over the last two weeks. Medicare will cover the cost for its recipients, while employees can get the test through their own health insurance, she said.
“We haven’t heard yet whether commercial insurance companies will pay for this type of testing,” she said. “We are hoping that they will.”
Levine also defended the department’s previous guidance given to facilities regarding testing and readmission of residents that recovered from COVID-19 after hospitalization. Providers said the readmission policy and Levine’s prior comments that one-time universal testing would provide little useful information has left them vulnerable to even more litigation.
“Our actions allowed hospitals to reserve beds for the most severely ill patients and to discharge those who are less severely ill to skilled nursing facilities,” Levine said, paraphrasing a directive from the federal Centers for Medicare and Medicaid Services (CMS). “Those are the guidelines we received from CMS and so we implemented those guidelines.”
The department said the majority of the outbreaks seen in senior living facilities were “unwittingly” transmitted by “brave, but unfortunately asymptomatic or pre-symptomatic staff.”
“We only had a few cases where patients were sent to rehab facilities that had the full ability to take care of them because we had to decompress the hospitals,” she said.
The policy came under intense scrutiny in May, with some legislators even calling for Levine’s resignation. Gov. Tom Wolf has dismissed the criticism as unfounded, saying he is pleased with Levine’s response to the pandemic.