Wednesday, June 29, 2022

Families say NC immunity law protecting nursing homes is causing deadly consequences

by Cassie Schirm

The state’s immunity act for nursing homes is still in place two years after the pandemic started.

North Carolina legislators passed the measure unanimously during the pandemic to protect nursing homes from being sued for covid deaths. The state adopted the broadly worded provision in May 2020 to protect companies and staff from malpractice and negligence lawsuits arising during the pandemic.

State leaders say it was intended to only protect against covid deaths, but our recent reporting showed it may actually be causing more harm to patients, allowing some homes to shield themselves from neglect cases.

The provision will stay in effect as long as Democratic Gov. Roy Cooper’s emergency declaration over the health crisis remains in place or it is amended in the state's short session.

Meanwhile, dozen of families say because the law is still in place, people in the facilities are still being harmed. One woman says her father was a victim and the care facility is being protected by the law.

“I'm not going to let this die," said Trish Willard, daughter of Allen Willet who died in a Greensboro nursing home, "They wouldn't treat animals the way they've treated these people in these nursing homes.”

It’s a fight that keeps Willard up at night after she says her father an army veteran died due to neglect.

“When he went in, he was at 204 and he was down to 114 when he died.," said Willard.

Allen developed dementia in his late 70s and went into the care facility in 2019. She says things went downhill quickly.

“It got to the point where there was no water," said Willard. "I mean, I've got pictures and video. The dirt all over my father. His toenails curled in so much where they were claws. I had to beg them to cut his toenails.”

What really was noticeable, she says was his weight loss.

“It got really emotional when I saw him losing weight rapidly," said Willard. "I brought it to their attention when it came to someone coming in and actually feeding him maybe even a feeding tube anything and they said, well, we'll see. We'll get a dietitian working with him. It's not going to help if they're not going to help feed him because he forgot how to feed himself."

And then Covid hit and nursing home doors across the state were shut to all visitors.

“I could not explain what that was like to see him in that condition because they would allow us to come look at him from a distance," said Willard. "But I did not get to see my father in person until they called me and said he was ready to die. When I did he had no kind of water or anything. The moisture his tongue was completely stuck to his lip. Like it was grown together. It was just sickening that they let a human get that way. And it's not about the $9000 a month. It's about I'm really trusting someone to take care of him because I was unable to take care of him at that point because I was a breast cancer patient.”

Allen died 14 months after going in.

"He died from starvation," said Willard.

Since her father's death Willard took her story to an attorney, but because of the immunity law courts are giving full immunity to nursing homes for any deaths within their walls. It is a law, that advocates across the state are trying to fight like Lauren Zingraff, executive director of Friends of Residents.

“I can tell you that Friends of Residents and other partners of ours have been working behind the scenes directly since before the session came back," said Zingraff. "We have had meetings with legislators. I've been on those calls along with lobbyists and other policy advocates specifically to address amending or changing Senate Bill 704. Now whether that goes forward, I don't know.”

Zingraff says the pandemic highlighted a problem that already existed in the nursing home, a lack of staffing as North Carolina is one of 20 states in the US that doesn’t have a minimum staffing requirement for the facilities.

"When you have only a few staff members available for a lot of residents that need 24-hour care, then their daily needs in some way, shape or form are going to be neglected," said Zingraff. "That means they're not getting their meals on time and they're not getting their medicines on time and they're not having their hygiene taken care of in a proper manner.”

A majority of nursing homes in the U.S. are facing staffing shortages, according to a recent survey, which can result in unsafe conditions for the nation's elderly.

The survey, released by the American Health Care Association, found that 98% of nursing home operators are having trouble hiring, 59% said they are losing money, and 73% said staffing issues could force them to close.

Attorneys say staffing levels in long-term-care facilities have been a battleground for years. They say the problem here is North Carolina’s pandemic immunity law blocked plaintiffs from arguing that low staff levels were a root cause of negligence. That removed a common argument plaintiff attorneys typically use in nursing home negligence cases.

North Carolina isn't the only only one where an immunity law was enacted. Thirty-eight states have created emergency orders or laws intended to immunize companies and individuals for care related to the pandemic, according to a tally compiled by National Consumer Voice, a nonprofit watchdog organization focused on nursing homes. The public conversation in most of the states was that hospitals, doctors, and long-term care facilities should not be held legally responsible for coronavirus infections and deaths in a viral pandemic that overwhelmed medical systems and long-term-care centers.

In nursing homes and assisted-living facilities, at least 185,000 people have died of covid-19, according to the nonprofit, nonpartisan Kaiser Family Foundation. What’s new in North Carolina is that it’s the first state where immunity claims are being cited in court by facilities to defend themselves against cases that are not related to covid-19 and treatment.

North Carolina’s law says immunity applies to the delivery of care “directly or indirectly” impacted by the pandemic.

Advocates for residents and their families say these laws have gone too far. "They contend the industry sought broadly worded immunity laws, as the families who often serve as the eyes and ears for problems when they visit their loved ones inside residences were no longer permitted inside facilities," said am Brooks, program and policy manager for National Consumer Voice, who has been closely monitoring the spread of immunity laws. "Without those family members drawing attention to issues on a frequent basis an escalation in routine neglect cases was bound to happen."

Until the law is amended or new laws are passed Willard is concerned other families will have to go through the same nightmare she did having to say goodbye to a loved one too soon.

"I was sitting there and I told him I said daddy, I love you and I'm sorry I have fought to the end to try to help you," said Willard. "It's okay, you don't need to suffer anymore. I know what they've done to you in here. And I'm going to speak for you, I'm going be that voice for you that you didn't have. They made me leave after 30 minutes knowing that he was going to die alone. I can't explain how that's haunted me every single day."

Many of the families who have lost loved ones have come together and created a petition to stop the law from continuing.

If you are concerned, advocates say it’s okay to ask questions about your relative’s long-term care facility.

They say to contact the office’s administrator if you have questions about what’s going on behind the scenes.

According to the Department of Human and Health Services here in North Carolina, the agency receives thousands of complaints each year. Then regulation surveyors check for compliance with state and federal laws. If they find a facility is in violation, the facility has ten days to submit a plan of correction. If the issues aren’t corrected during a surprise visit, then DHHS can enforce monetary penalties or terminate their Medicare programs.

If you have concerns or complaints about a particular place, contact the state.

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