State Adoption of Legal Immunity for Nursing Homes During the COVID-19 Pandemic

• In Event: Plural Approaches to Understanding COVID-19 Response

Abstract

Since the pandemic reached the United States, 28 states have provided nursing homes (NHs) with immunity from legal liability related to COVID-19 – either for the facilities themselves (21) or for healthcare providers more generally (7). This study places these provisions in the context of prior actions protecting NHs from legal action and explores factors influencing the adoption of such immunity provisions across states.
The quality of NHs is widely perceived as poor, and their inability to cope with the COVID-19 pandemic has only intensified that perception. Although quality control mechanisms have been instituted by both the federal government and states, these have proved less than effective in preventing NH residents and staff from bearing the brunt of the COVID-19 crisis, with roughly 40% of deaths attributed to NHs. Some argue that litigation can act as an alternative form of quality control, incentivizing NHs to maintain quality. However, both the federal and state government have historically sought to constrain this mechanism – most notably during the recent pandemic. This study discusses the steps states have taken to protect NHs from litigation by providing them with immunity from civil or criminal prosecution, and examines factors associated with states that adopt such provisions.
The protectionist policy literature seeks to understand the influence of lobbying behavior on policy adoption. The comparative state policy adoption literature identifies factors that contribute to variation in state action, both generally and with respect to health and long-term care policy, specifically. This study focuses on state political, socioeconomic, and programmatic conditions, as well as the history of protective actions in the NH industry, drawing on theories about how such protective policies evolve. Political factors include political ideology, interest group activity, and economic climate and resources. Institutional capacities of the governor, bureaucracy, and legislature to govern -- and existing NH-related policies -- may also impede or facilitate policy adoption.
This study provides an in-depth examination of state policy process around the adoption of state NH immunity provisions. It also uses cross-sectional data to examine patterns of policy adoption and to assess states’ likelihood of adopting immunity provisions using multivariate methods. To qualify as providing immunity, states must either have passed legislation or issued executive orders to protect NHs from civil and criminal liability. Variables of interest include information on state political, socioeconomic, programmatic, and COVID-19-related characteristics as well as data on campaign contributions and lobbying activity at the state level. Data come from a wide range of sources, including the Kaiser Family Foundation, National Consumer Voice for Quality Long-Term Care, LTCFocus, Follow The Money, and the U.S. Bureaus of Economic Analysis, Labor, and Census.
Results indicate that enforcing accountability for NH deaths during COVID-19 pandemic is a complex process, constrained by available policy tools and made more complicated by factors external to the NH environment that contributed to high death rates. Historically, the NH industry has been successful in avoiding consequences for poor quality care, a pattern that has persisted in the current crisis and which disproportionately affects low-income populations of color. The study finds that adoption of immunity has been consistent across states, with few variables predicting state adoption of NH immunity provisions. Factors significantly related in bivariate analyses included measures of state fiscal health (May 2020 unemployment), ideology (percent legislators Democrat), governing capacity (unified government), and NH characteristics (percent not-for-profit, hospital-based, and chain); many of these relationships became insignificant in the multivariate analyses. Population density and Medicaid as a percentage of state general fund expenditures proved significant as well. Against these complex influences, organizations lobbying on behalf of NH residents and their families have found themselves ineffectual in creating avenues for accountability.
NHs have always been politically salient to state government due to their important (and expensive) role in the Medicaid program, but have largely flown under the radar of public interest. Thus, factors influencing NH policymaking are not well understood, although there is evidence for the influence of lobbying on NH oversight. This study sought to build on these insights by examining a wide range of factors that potentially influence adoption of state provisions granting NHs immunity from prosecution during the COVID-19 crisis, finding that NHs have generally been successful in avoiding liability for negligence during the COVID-19 pandemic.

Authors

• Pamela Nadash, University of Massachusetts, Boston

• Edward Alan Miller, University of Massachusetts, Boston

• Michael K. Gusmano, Lehigh University