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AARP to State Senate: Don't Let Nursing Homes off the Hook

July 13, 2020

The Honorable Hannah-Beth Jackson
Chair, Senate Judiciary Committee
State Capitol, Room 2187
Sacramento, CA

The Honorable Andres Borgeas
Vice-Chair, Senate Judiciary Committee

Subject: AB1035 (Ramos/Mayes) – Small Business Liability – Opposed

Dear Senators Jackson and Borgeas:

On behalf of AARP’s 3.3 million California members and all older Californians, I am writing to express AARP’s strong opposition to AB 1035, which would grant immunity from liability related to COVID-19 for small business with 25 or fewer employees, which includes residential care facilities for the elderly (RCFEs).

AARP has long fought for the rights of residents in nursing homes and other residential care facilities. This includes the right of residents and their families to seek legal redress through the courts to hold facilities accountable when residents are harmed, neglected, or abused. Legal immunity is dangerous. The Centers for Disease Control and state agencies that oversee these facilities have issued guidance to RCFEs on protecting residents’ health and safety during this pandemic. Giving these facilities blanket immunity would mean that even those facilities that have not followed this guidance would be off the hook for any harm to residents caused by their actions.

As of July 10, 2020, there have been 3,184 COVID-19-related deaths in nursing homes and long-term care facilities, according to data reported to the California Department of Health Care Services and the California Department of Social Services. This shocking number is more than a statistic – it represents our mothers, fathers, grandparents, spouses, partners and other loved ones. Without increased protective equipment, testing, and treatment protocols, millions more will contract COVID-19 and thousands more could die.

Given the fact that most inspections of nursing homes, long-term care facilities and RCFEs have been suspended, that family in-person visits are effectively prohibited except in limited circumstances, and that in-person long-term care Ombudsman visits are similarly restricted, there are fewer eyes than ever observing what is happening in these facilities. Residents in nursing homes and long-term care facilities are often unable to advocate for themselves and now have very limited access to people who can advocate on their behalf.

We believe it is our duty as a society to ensure the health, safety, quality of care, and quality of life for our most vulnerable persons. This includes the rights of residents and their families to seek legal redress through the courts in order to hold facilities accountable for harm suffered through neglect or abuse.

As it stands, pursuing a neglect or abuse case against a nursing home or other facility in court is not easy. In California, there are already significant barriers to accessing the courts, including the fact that state statute requires that elder abuse cases be proven by the very high standard of “clear and convincing” evidence, which is very difficult to show when the victim of abuse suffers from dementia or is deceased. The fact is that no family member who has lost a loved one due to neglect or abuse pursues this course of action lightly. It is always an option of last resort -- but it must remain an option. AB 1035 would deeply damage the rights and protections of residents in residential care facilities for the elderly and nursing homes, and that is I why urge you to oppose this bill.

Nursing homes and other LTC facilities should know that they will continue to be held responsible for providing the level of care that is required of them, and for which they are being compensated. This also incentivizes facilities to self-correct by addressing problems and improving care. If you have any questions please contact Blanca Castro, Advocacy Director at (916) 556-3021 or at bcastro@aarp.org.

Sincerely,
Nancy McPherson
State Director

CC:
Members of the Senate Judiciary Committee
Assembly Member Chad Mayes
Assembly Member James Ramos

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