Faced with 20,000 coronavirus deaths and counting, the nation’s nursing homes are pushing back against a potential flood of lawsuits with a sweeping lobbying effort to get states to grant them emergency protection from claims of inadequate care.
At least 15 states have enacted laws or governors’ orders that explicitly or apparently provide nursing homes and long-term care facilities some protection from lawsuits arising from the crisis. And in the case of New York, which leads the nation in deaths in such facilities, a lobbying group wrote the first draft of a measure that apparently makes it the only state with specific protection from both civil lawsuits and criminal prosecution.
Now the industry is forging ahead with a campaign to get other states on board with a simple argument: This was an unprecedented crisis and nursing homes should not be liable for events beyond their control, such as shortages of protective equipment and testing, shifting directives from authorities, and sicknesses that have decimated staffs.
“As our care providers make these difficult decisions, they need to know they will not be prosecuted or persecuted,” read a letter sent this month from several major hospital and nursing home groups to their next big goal, California, where Gov. Gavin Newsom has yet to make a decision. Other states in their sights include Florida, Pennsylvania and Missouri.
Watchdogs, patient advocates and lawyers argue that immunity orders are misguided. At a time when the crisis is laying bare such chronic industry problems as staffing shortages and poor infection control, they say legal liability is the last safety net to keep facilities accountable.
They also contend nursing homes are taking advantage of the crisis to protect their bottom lines. Almost 70% of the nation’s more than 15,000 nursing homes are run by for-profit companies, and hundreds have been bought and sold in recent years by private-equity firms.
“What you’re really looking at is an industry that always wanted immunity and now has the opportunity to ask for it under the cloak of saying, ‘Let’s protect our heroes,‘” said Mike Dark, an attorney for California Advocates for Nursing Home Reform.
“This has very little to do with the hard work being done by health care providers,” he said, “and everything to do with protecting the financial interests of these big operators.”
Nowhere have the industry’s efforts played out more starkly than in New York, which has a fifth of the nation’s known nursing home and long-term care deaths and has had at least seven facilities with outbreaks of 40 deaths or more, including one home in Manhattan that reported 98.
New York’s immunity law signed by Democratic Gov. Andrew Cuomo was drafted by the Greater New York Hospital Association, an influential lobbying group for both hospitals and nursing homes that donated more than $1 million to the state Democratic Party in 2018 and has pumped more than $7 million into lobbying over the past three years.
While the law covering both hospital and nursing care workers doesn’t cover intentional misconduct, gross negligence and other such acts, it makes clear those exceptions don’t include “decisions resulting from a resource or staffing shortage.”
Cuomo’s administration said the measure was a necessary part of getting the state’s entire health care apparatus to work together to respond to the crisis.
“It was a decision made on the merits to help ensure we had every available resource to save lives,” said Rich Azzopardi, a senior advisor to Cuomo. “Suggesting any other motivation is simply grotesque.”
Nationally, the lobbying effort is being led by the American Health Care Association, which represents nearly all of the nation’s nursing homes and has spent $23 million on lobbying efforts in the past six years.
Other states that have emergency immunity measures are Alabama, Arizona, Connecticut, Georgia, Illinois, Kentucky, Massachusetts; Michigan, Mississippi, New Jersey, Nevada, Rhode Island, Vermont and Wisconsin.
Their provisions vary but largely apply to injuries, deaths and care decisions, sometimes even to property damage. But there are limitations: Most make exceptions for gross negligence and willful misconduct, and they generally apply only during the emergency.
Toby Edelman of the Center for Medicare Advocacy is troubled that homes are getting legal protections while family members aren’t being allowed to visit and routine government inspections have been scaled back.
“Nobody is looking at what’s happening,” she said, adding that immunity declarations could make even gross or willful negligence suits harder since homes could argue any deficiencies were somehow tied to the pandemic.
“Everything can’t be blamed on COVID-19. Other things can happen that are terrible,” she said. “Just to say we’re in this pandemic so anything goes, that seems too far.”
Among the situations for which lawyers say nursing homes should be held to account: Homes that flouted federal guidelines to screen workers, cut off visitations and end group activities; those that failed to inform residents and relatives of an outbreak; those that disregarded test results; and homes like one in California, where at least a dozen employees did not show up for work for two straight days, prompting residents to be evacuated.
“Just because you have a pandemic doesn’t mean you give a pass on people exercising common sense,” said Dr. Roderick Edmond, an Atlanta lawyer representing families suing over COVID-19 deaths in an assisted-living facility.
“If you take the power of suing away from the families, then anything goes,” said Stella Kazantzas whose husband died in a Massachusetts nursing home with the same owners as the home hit by the nation’s first such outbreak near Seattle, which killed 43 people.
“They already knew in Washington how quickly this would spread,” she said. “They should have taken extreme measures, sensible measures. And they were not taken.”
While the federal government has yet to release numbers on how the coronavirus has ravaged the industry, The Associated Press has been keeping its own tally based on state health departments and media reports, finding 20,058 deaths in nursing homes and long-term care facilities nationwide.
All the new immunity laws notwithstanding, there is a potential wave of lawsuits coming. Illinois lawyer Steven Levin said he’s received dozens of calls from people considering suing homes over the outbreak. Florida lawyer Michael Brevda said his firm gets 10 to 20 calls a day. And a lawyer in Massachusetts said he’s gotten maybe 70 from families with relatives at homes struck by the virus.
“We’re getting inundated,” said David Hoey, whose practice near Boston has been suing homes for 25 years. “They’re grieving and they’re confused. … ‘My loved one just died from COVID. What can I do?’”
American Health Care Association CEO Mark Parkinson said the notion of lawyers gearing up for lawsuits in the “middle of a battle to save the elderly” is “pathetic” and doesn’t consider the hardships nursing home workers have endured.
“The second-guessing of people after a tragedy, if those people did the best that they could under the circumstances, is just wrong,” said Jim Cobb, the New Orleans attorney who successfully defended nursing home owners charged in the deaths of 35 residents who drowned in Hurricane Katrina.
“There’s a lot to be said for someone acting in good faith in the face of a natural disaster and state of emergency, and they should have criminal immunity.”
These days, when Janesville Mall General Manager Julie Cubbage walks the mall’s concourse, she’s alone with the echoes of her own footfalls against shining tile.
In the half-dark of the 650,000-square-foot mall that’s been almost completely shuttered during the coronavirus pandemic, Cubbage’s only daily companions are the faceless mannequins standing sentinel behind caged-off entries to the mall’s idled shops.
The mannequins’ attire is early spring fashion left untouched since March 17. That’s the day the mall shuttered to the public under Gov. Tony Evers’ orders to protect public health in a pandemic that now has run weeks and will continue to run its course for untold weeks or months.
Cubbage said the coronavirus pandemic and the state’s corresponding business shutdowns and public gathering bans have the mall and other idled retailers facing perhaps their biggest-ever existential threat.
“My biggest fear is we will have stores that simply won’t reopen later this year. This pandemic has just been devastating to a lot of retailers. We were already in a retail apocalypse, so to speak, with the shift to online shopping. This pandemic is not helping with that,” Cubbage said.
Cubbage is among a skeleton staff who returns to the idled mall day after day. She wears a cloth face mask and rubber gloves while walking the concourse. Canned music plays from ceiling speakers to a crowd of no one.
“It’s really kind of creepy to hear your own breathing echo off the walls and to see no people, just mannequins,” Cubbage said.
The retail sector, which supports about 14,000 jobs in Rock County, has undergone a shakeup of layoffs and furloughs because of state-mandated temporary closures. Some retailers are allowed to continue as “essential” businesses, absorbing an overflow in consumer demand.
Increased demand and logistical strain tied to the pandemic has spurred some retailers to begin aggressively hiring. Some local hotspots right now include Blain’s Farm & Fleet and Walgreens and CVS pharmacies, according to recent online job listings.
Right now, the mall’s stores don’t face hiring pressure or temporary shortfalls in inventory.
While some mall stores have a few staff taking inventory and servicing online sales, many of the mall’s stores have been idled more than 40 days.
One morning late last week, Dick’s sporting goods, one of the mall’s anchor stores, had a lone customer standing on the sidewalk outside the store, apparently waiting for a curbside pickup. It was the only outward evidence of any action at the mall.
According to a set of state-required layoff notices, athletic shoe chain Finish Line announced April 14 it was furloughing more than 130 employees at several of its Wisconsin stores—including all 11 employees that run the Finish Line store at the Janesville Mall.
The furloughs are tied to the pandemic and the state’s shutdown, and they’ll run however long the state requires shopping malls to remain closed, Finish line said in its notices.
Gov. Evers said the state’s shelter-in-place rules and mandated business shutdowns linked to COVID-19 likely will run until at least the end of May. Some analysts believe it could be well into summer before many states begin to significantly remove business restrictions.
For years, Cubbage said, she’s watched the mall industry struggle to disprove analysts who’ve declared brick-and-mortar retail a dead industry. A pandemic now is bleeding money from mall retailers and malls themselves, more so every day as malls are forced into a void of mandated isolation.
“It’s hard to get rent when retailers don’t have any sales. They don’t want to pay their rent because they don’t have any sales,” Cubbage said. “It’s a vicious cycle that every mall is going through right now.”
The Janesville Mall has battled for years to redefine itself as a retail venue after it lost three major anchor stores since the end of the Great Recession. The mall in the last four years has added a few large chain stores as anchors. And more recently, it’s drawn a growing number of independent, mom-and-pop retailers ranging from fresh food shops to barber shops.
The most recent brightening in prospects for the 50-year-old mall came earlier this year when the city announced it was negotiating with the mall’s ownership, RockStep Capital, on a deal to bring a multimillion dollar indoor sports complex and the junior hockey franchise Janesville Jets to the site now occupied by the defunct Sears store.
But last week, a group of private backers for the sports complex asked the city to shelve planning on the project, likely until next year. The backers say private fundraising for the $30 million project has flatlined during the COVID pandemic.
Cubbage said she couldn’t comment on the impact of COVID-19 on the mall’s bid for the sports complex. RockStep Capital officials last week did not respond to Gazette requests for comment on what a delay to the sports complex project could mean to the mall.
During a walk through the mall late last week, Cubbage pointed out one new mall tenant, Five Star Barber Shop, which she said opened on the north end of the concourse just before the pandemic hit.
It’s one of the small, independent, local businesses Cubbage said the mall is trying to help get government small-business rescue loans to bridge the COVID-19 shutdown. But many of the loan programs are tailored to businesses that are firmly established or have been in operation for at least a few years, she said.
Chain bookstore Books-A-Million was one of the few shops at the mall late last week that showed any signs of life. Store Manager Judy Robinson and another employee worked behind the bookstore’s pull-down security gate, packing unsold books to return to publishers for credit.
Robinson said she’s had limited interaction with merchants at neighboring stores because when they come in they are cordoned off inside their stores, just like her.
“It almost feels as if you’re working before or after store hours, until you realize like six hours have gone by and there’s not another soul you’ve seen besides your coworker,” Robinson said.
“It’s very eerie.”
Books-A-Million’s storefront displays were still loaded with Easter-themed plush dolls. Robinson assumes she’ll go straight from a spring motif to a “summertime reading” theme if her store reopens in time.
Cubbage said the mall, like all others in Wisconsin, awaits a decision by the state that would spell out terms of an economic restart and how that might apply to indoor shopping malls. She said the pace at which individual mall stores might reopen could depend largely on how the state handles businesses such as malls, which are designed to draw large-scale shopping crowds.
Cubbage believes some mall stores might operate with plastic barriers between customers and checkout clerks, among other social distancing measures, for months or even permanently.
“We’ve thought for years we’d entered a new era of retail, but I wonder what we will see now,” Cubbage said. “This is a very different time, and I don’t think some things are ever going to go back to being how they were ever again.”
Educators call if “differentiating.”
It means teaching students at wildly different stages without segregating the slow ones from those who are at or above grade level.
It’s a difficult task during most school years. Next year, it will be Herculean.
The Janesville School District next year plans to tackle pandemic-related knowledge gaps with testing and teaching to students’ knowledge. No extended school days, no early start and—for now—no staffing changes are planned to help students make up for what they are losing this year with school closed and everyone learning online.
The pandemic, which led to school closures in March, means Janesville students will miss more than 10 weeks of in-school, all-day learning.
Although the majority of students are participating in online learning, what they they are receiving is a shadow of what they would get in a classroom, teachers acknowledged.
For elementary levels, the amount of online time ranges from one to two hours a day. In the upper grades, it is closer to three or four hours a day. Additionally, factors such as the reliability of internet access, the ability of parents to help their children and general stressors in the home such as parental unemployment are iaffecting how much virtual learning students do, educators say.
District Director of Learning and Innovation Allison Degraaf said the first step next year will be testing to see where children are. Then, they’ll compare those results to what the standards are for each grade and see where they need to “fill in the gaps.”
Those gaps will be addressed through small group learning, Degraaf said.
Will that be enough?
“Differentiation is a skill that teachers have used, even when we haven’t had situations like this,” DeGraaf said. “It’s probably going to be at a higher level than it was in the past.”
Wade Tillett, associate professor of curriculum and instruction at UW-Whitewater, echoed her comments.
“Teachers have always differentiated,“ Tillett said.
“Students move around, or they don’t have the same background. Next year, it’s just going to be more extreme.”
It’s going to be crucial to target the core concepts taught in the almost eleven weeks of missed classroom time and not approach it by packaging, say, seven weeks of algebra into two weeks during fall of next year, he said.
But doesn’t a subject such as math or the sciences depend on sequential learning? Generally, you can’t do Z without doing X and Y, first.
Not necessarily, Tillett said.
Teaching and learning types fall into three separate strands: conceptual understanding, problem solving and procedural fluency.
The last, procedural fluency, refers to the ability to perform a process that requires you to know the times table, memorize algebraic equations or flip a fraction when you multiply. This is easy to teach and learn online.
When students learn to problem solve or they can form a conceptual understanding of how numbers work, they will be able to participate in that higher level work.
But that, too, is a more complicated way of teaching.
When pressed with the difficulty of such teaching methods, Tillett responded, “Teachers’ jobs are hard. That why they’re professionals.”
Based on the Janesville School District’s staffing plan, which was approved by the school board last month, no additional aides or teachers are slated to help with the knowledge gap next year.
District Spokesman Patrick Gasper said the district has applied for federal funding that might help with staffing, but the district doesn’t know if it will get the funding or what strings might be attached if it does.