States Move to Immunize Nursing Homes from Liability During Coronavirus Pandemic

Chronic understaffing. Low-wage caregivers. Difficulty containing infections. These are problems that nursing homes faced in the best of times but that have proved especially deadly as the coronavirus pandemic has spread like wildfire though long-term care facilities. In response, many states have moved to shield nursing homes -- and in some states assisted living facilities as well -- from lawsuits related to the care they are providing during the pandemic. Long-term care advocates are fiercely opposing the measures. 

The coronavirus pandemic has hit nursing homes particularly hard. One-third of all deaths are residents or workers in nursing homes or other long-term care facilities, and in 15 states more than half of all COVID-19 deaths have been related to long-term care. In the best of times, nursing homes often have problems with staffing shortages and infection outbreaks, and the pandemic has exacerbated these problems. 

Residents and families who are unhappy with the way their facility has handled the outbreak may not have much recourse against the facility. According to Time, at least 18 states have granted long-term care facilities some legal immunity from lawsuits related to the pandemic and another 10 states are considering protections. These provisions tend to grant immunity from civil, but not criminal, lawsuits to facilities that are providing care in good faith during the pandemic (an exception is New York’s recently enacted law, which gives immunity to nursing homes from both civil and criminal lawsuits). While the immunity does not apply to willful or criminal misconduct or gross negligence, it may apply to harm stemming from resource and staffing shortages. As the states act, industry lobbying groups are pushing for the federal government to enact broad immunity protections as well. 

Long-term care advocates are opposing the rush to grant immunity to nursing homes, with one advocate calling it “basically a license for neglect.” A group of organizations that advocate on behalf of nursing home residents sent a letter to Congress, arguing that residents need the protection that a lawsuit can provide now more than ever. The letter points out that none of the previous safeguards for residents -- including long-term care ombudsmen, regular inspections, and family supervision -- are currently available to residents due to lockdowns. 

Despite states' grants of immunity, families of nursing home residents affected by COVID-19 are looking for ways to hold the facilities accountable. E-Street Band guitarist Nils Lofgren has spoken out about his anger and disappointment over New Jersey’s immunity provisions and has filed a lawsuit against his mother-in-law’s nursing home. A Florida law firm is also planning to file suit against two nursing homes for their handling of the pandemic, and a California family is suing a nursing home, arguing that the nursing home negligently allowed a staff member with COVID-19 to work at the facility. 

Another potential avenue of liability for nursing homes is from staff lawsuits. Many nursing home workers contracted COVID-19 at work. The family of a deceased nursing home employee in Texas is suing the nursing home for wrongful death. The lawsuit alleges the facility did not properly respond to the pandemic and did not provide their employees with personal protection equipment. 

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Phone: (818) 905-0601 / Email: elise@elampertlaw.com

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Some Nursing Homes and Assisted Living Facilities Are Snatching Residents' Pandemic Relief Checks, FTC Warns

The Federal Trade Commission (FTC) is warning residents of long-term care facilities and their families that some facilities may unlawfully require residents who are on Medicaid to sign over their $1,200 pandemic relief checks.

“This is not just a horror story making the rounds. These are actual reports that our friends in the Iowa Attorney General’s Office have been getting—and handling. Other states have seen the same,” writes Lois Greisman, the FTC’s Elder Justice Coordinator, in a May 15 alert.  

The Coronavirus Aid, Relief, and Economic Security (CARES) Act included one-time payments of up to $1,200 to millions of eligible individuals, based on their income. Ordinarily, nursing home and assisted living residents receiving Medicaid benefits must give all their income to the facility, minus a small “personal needs allowance.” However, the economic impact payments that are part of the CARES Act are a tax credit. According to tax law, tax credits don’t count as “resources” for federal benefit programs like Medicaid. The money belongs to the resident, not the facility. 

The FTC says that if a loved one lives in a nursing facility and you’re not sure what happened to their payment, talk with them soon.  If the facility took the payment already, get in touch with your state attorney general and ask them to help you get it back, and then tell the FTC at ftc.gov/complaint.

For the FTC's alert to consumers, click here.

For the agency’s companion alert to businesses, titled “Nursing homes and assisted living facilities: Hands off residents’ stimulus checks,” click here.

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Questions? Contact us at Elise Lampert, Attorney at Law

   

Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com

Seniors Affected by the Coronavirus Pandemic Have More Time to Apply for Medicare or Change Plans

The closure of Social Security offices has caused problems and worries for recently unemployed seniors who need to apply for Medicare after losing their employer coverage. In response, the federal government has announced that seniors affected by the crisis have additional time to enroll in Medicare or change plans.

With millions of people out of work and losing their employer health insurance due to the coronavirus pandemic, the need for Medicare coverage is critical. While it is possible for some seniors to apply for Medicare online, others need to provide more information, including individuals who did not sign up for Medicare Part B initially because they had health insurance through an employer. Seniors who are applying for Medicare Part B after losing their job need to provide proof of their employer policy along with their Medicare application to ensure they aren’t subject to substantial penalties. With Social Security offices closed, Medicare applicants may have difficulty figuring out how to submit the necessary information or getting answers to their questions about their application. 

The Centers for Medicare and Medicaid Services (CMS) has announced changes to Medicare enrollment periods to help seniors affected by the coronavirus pandemic. Those who missed their opportunity to enroll in Medicare will have additional time to apply. CMS is providing “equitable relief” to seniors who:

• were in their Initial Enrollment Period (IEP), General Enrollment Period (GEP), or Special Enrollment Period (SEP) between March 17, 2020, and June 17, 2020; and
• did not submit an enrollment request to the Social Security Administration (SSA).

Seniors have until June 17, 2020, to submit an application. Applications can be submitted via fax to 1-833-914-2016 or mailed to the local SSA field office. Although SSA offices are closed for in-person service, offices are still processing applications received by mail. 

In addition, CMS has announced an SEP for people to make changes to their Medicare Advantage and prescription drug plans if they missed the open enrollment period or a special enrollment period due to the coronavirus pandemic. The SEP is available until July 13, 2020. 

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 Elise Lampert, Esq.

Law Office of Elise Lampert

9595 Wilshire Blvd. | Suite 900 | Beverly Hills , CA 90212

Phone: (818) 905-0601 / Email: elise@elampertlaw.com

https://www.eliselampert.com