Few have deserved the 60 Plus Association’s Honorary Guardian of Seniors’ Rights Award more than Sen. Lindsey Graham (R-S.C.). From his courageous attempts to save Social Security to securing hundreds of thousands of dollars worth of grant money for aging and disability resource services, he has made safeguarding the well-being of senior citizens a hallmark of his long tenure in Washington. That’s why we here at 60 Plus are so encouraged to see his scheduling of a Senate Judiciary Committee hearing to examine the need for liability protections at this time of great need for all Golden Age Americans.
Because of the many frivolous lawsuits that plaintiff firms have filed against businesses and health care facilities over a virus that’s beyond anyone’s control, Mitch McConnell (R-Ky.) and the White House have started considerable chatter in the nation’s capital about creating a general liability shield. While plenty of economic actors would benefit from Congress agreeing to pandemic protections, none are more deserving of help than the nation’s nursing homes and long-term care facilities. Because of the dangerous, contradictory COVID-19 mandates imposed on them throughout this crisis, they now find themselves on the receiving end of an imminent litigation nightmare, and it will quickly exacerbate the 21st century’s nursing home shortage epidemic if the legislative branch doesn’t act soon.
Over the protests of long-term care facilities, governors in states like California, New Jersey, and New York forced private senior living homes to house COVID-19-positive patients. When they asked for more protective equipment to help manage this added capacity that put the lives of their high-risk elderly residents with inherently weaker immune and respiratory systems in greater jeopardy, some governors shrugged their shoulders, scoffing that it’s not their job.
These officials later advised the country to take the increased death counts that seemingly arose as a result of their decisions “with a grain of salt.” New York Governor Andrew Cuomo and others like him may have the luxury of looking at the calamities their interference caused with rose-colored glasses, but the nursing homes dealing with the added fatalities and reduced staff capacity because of the increased infection rates among caretakers and residents have had no choice but to look at it head-on. And now, as the Wall Street Editorial Board made clear, they also have to stare down the threat of lawsuits and, in some cases, even foreclosure, as plaintiff firms throughout the country continue trying to make them pay dearly for these government-caused mistakes.
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The firms’ class action advertisements have arisen all throughout the country, online and on TV, all striking a tone similar to this one from Brown, Moore & Associates PLCC: “If your loved one was in a nursing home and died due to COVID-19 issues (due to the virus or staffing problems at the facility), seek legal assistance immediately.”
Rather than protect them from these suits by owning up to their mistakes, the Jekyll to New York and other states’ Hyde has taken over, pretending as if their last two months’ worth of punitive mandates never occurred. They have doubled down on this lawsuit scare by threatening fines or license revocation for nursing homes that don’t properly transfer the same contagious residents they ordered them to accept to other facilities and stop admitting additional occupancy. These conflicting mandates have put the nursing homes in a damned if you do, damned if you don’t legal dilemma. Because of these contradictory orders from the government, the plaintiff firms can now sue them both for taking infected residents in and for not wheeling them out quickly enough – all for the crime of listening to the powers that be.
These suits present nothing but bad news for the nation’s seniors. Although over 1.4 million Americans depend on nursing homes for the unique health personal services nursing homes provide, many of their facilities are not well-positioned to weather the costly litigation currently being imposed on them. In fact, the country was already experiencing a significant nursing home shortage well before this pandemic. From 2007 to 2011, the new construction of these facilities decreased by one-third, and over 550 closed in the 2015-2019 period alone. These alarming numbers will only continue to grow should Congress not act, and worsening this shortage would come while the number of Americans aged 65-plus continues to increase, with the count expected to nearly double by 2060.
The U.S. should not have to lose more nursing homes because of the poor decisions made by state politicians. Thankfully, with a top senior advocate at the helm of the Judiciary Committee like Sen. Graham, there’s a good chance that it won’t have to. Graham has already taken Step 1 by calling for a liability hearing this week. Now, he just needs to follow through by asking the right questions and ensuring that whatever liability shield he helps Sen. McConnell put together includes these facilities. Senior citizens have no finer friend in Congress than South Carolina’s senior senator, and we are confident that he’ll safeguard our interests again here.
Mr. Martin is the Founder and Chairman of the 60 Plus Association, representing more than five million seniors nationally.
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