Agency Overseeing Florida Nursing Homes Asks for ‘Sovereign Immunity’ for Corporate Nursing Home Industry

Elderly worrying and waiting

In a state with more residents age 65 and older than any in the country, the coronavirus portends a serious and terrifying scenario in Florida. Health experts say COVID-19 impacts that population a lot harsher, and they are correct. Nationwide, eight out of 10 deaths related to the disease occurred in those 65-plus.

Other statistics associated with those 65-plus are that between 30 and 60 percent of them needed to be hospitalized after contracting the coronavirus, 10 to 30 percent of whom ended up in the intensive-care unit.

Nursing homes, which, even though they are on lockdown, face a risk of community spread, present a precarious problem. Their patients are often fragile, frail and face pre-existing conditions. Some have weakened immune systems. Others’ lungs are compromised. And now everyone is isolated from family and friends. They are more alone than possibly ever before and they are afraid. Their future lies in the hands of their caregivers.

Medical professionals in such facilities have the responsibility – and the privilege – of taking every precaution to protect the elderly because the elderly are in a position that makes them unable to protect themselves.

Why would the agency that oversees over 80 percent of the state’s 700 nursing homes seek to reduce the protection of the men and women in their care?

“Just weeks after a coronavirus outbreak in a Florida assisted living facility, the state’s most powerful nursing home organization sent a letter to Gov. Ron DeSantis with an urgent request: Grant the homes sweeping protections from legal claims arising from the viral scourge,” states a BuzzFeed article titled “Florida’s Nursing Homes Ask Gov. DeSantis To Shield Them From Coronavirus Lawsuits.” “The response: DeSantis is considering it.”

The outbreak – one of the first reported in a long-term home – took place at Atria Senior Living’s Atria Willow Wood in Fort Lauderdale, where seven of the 19 residents who tested positive died. Atria Willow Wood is not alone. According to FloridaDisaster.org, as of April 13, 2020, 20,035 coronavirus cases were documented in Florida, with 962 in nursing homes. The hotspots are Dade County with 127 cases, Broward County with 93 cases and Palm Beach County with 85 cases. Those numbers have nowhere to go but up.

So not surprisingly, at the backlash from elder-care advocates like Brian Lee to the letter, penned by nursing home corporations’ advocate Emmett Reed.

“It’s jaw-dropping,” Lee said in the BuzzFeed article. “That they could, in the middle of a worldwide crisis, that they want to protect their interest, that they would make this request just floored me.” Brian Lee is Florida’s former chief long-term care ombudsman; a leader in overseeing nursing homes to “…improve the quality of life for all Florida long-term care residents by advocating for and protecting their health, safety, welfare and (elder) rights”.

Lee had stronger words for USA Today, accusing Executive Director J. Emmett Reed of “asking for forgiveness in advance.”

“It just got my blood boiling,” Lee said in the article, titled ‘Got my blood boiling’: Florida nursing homes ask governor for immunity from coronavirus lawsuits.” “I was shocked by the temerity of the industry to ask for blanket immunity from lawsuits…and to do it during the middle of this crisis. It’s appalling, and it’s a total slap in the face of families. All of their focus should be on saving our families lives, but it shows that, at the end of the day, they care more about their own protections. It’s gross.”

The letter’s request is deceptively broad and states in part, “To provide the best possible health outcomes for Floridians, we believe it is imperative that health care facilities and health care professionals are protected from liability that may result from treating individuals with COVID-19 under the conditions associated with this public health emergency. For purposes of this protection, any health care facility or health care professional should have immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course or arranging for or providing health care services….”

It concludes, “Governor DeSantis, we ask you to extend sovereign immunity to health care professionals and health care facilities engaged in responding to the COVID-19 outbreak. This would provide the necessary liability protection to health care professionals and health care facilities to provide services for any individual in the state during the emergency rule without fear of reprisal for providing care to their patients during this difficult time.”

 “The governor’s office, their legal team, legal teams from the other state agencies, are currently evaluating what can be done and what is in the best interest in addressing the concerns you’ve identified,” Agency for Health Care Administration Secretary Mary Mayhew said during a conference call with a nursing-home providers.

Legal experts say it does not appear that DeSantis has the authority to grant such a request and that the matter more than likely will be handled by the courts and the legislature. For now, it remains on the governor’s desk.