AARP Massachusetts Sends Letter to Governor Baker Regarding Nursing Home Liability Protections for Health Care Workers and Facilities

May 27, 2020

Letter from AARP Massachusetts State Director Mike Festa and State President Sandra Harris to Governor Charles Baker regarding: CHAPTER 64 OF THE ACTS OF 2020 - AN ACT TO PROVIDE LIABILITY PROTECTIONS FOR HEALTH CARE WORKERS AND FACILITIES DURING THE COVID-19 PANDEMIC

Dear Governor Baker:

AARP Massachusetts, on behalf of our 775,000 members and all older Massachusetts residents, is sharing our strong opposition to Chapter 64 of the Acts of 2020, which you signed into law on April 17. The chapter grants immunity related to COVID-19 for, among other entities and individuals, nursing homes, assisted living facilities, and other long-term care (LTC) facilities. AARP has long fought for the rights of residents in nursing homes and other residential care facilities and to ensure their health, safety, quality of care, and quality of life. 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.

Nursing homes and other LTC facilities play an important role in America’s long-term services and supports (LTSS) system. There are more than 38,000 nursing home residents in the state. During this time of pandemic, nursing homes and other residential care facilities face unprecedented challenges, and tragically, over 3950 residents have lost their lives. Given the gaps in reporting of cases and deaths, as well as the lack of testing, we assume this number is a significant undercount. Without increased protective equipment, testing, and treatment protocols, millions more will contract the coronavirus and thousands more people could die. While there may be some circumstances beyond facilities’ control for which they should not be held responsible, it is essential that long-term care providers, as well as health care providers more broadly, remain responsible for any negligent actions to ensure long-term care residents have some protection and opportunity for redress.

Given that most inspections of nursing homes have been suspended, family in-person visits are effectively prohibited except in limited circumstances, and in-person long-term care Ombudsman visits are similarly restricted, there are fewer eyes observing what is happening in facilities. Residents of nursing homes and other LTC facilities may be unable to advocate for themselves and now have limited access to people who can advocate on their behalf. This lack of oversight is alarming, and requires us to ensure that, when all else fails, residents and their families will still have access to the courts to seek redress.

Pursuing a nursing home neglect or abuse case in court is not easy to do. In Massachusetts, there are already barriers to accessing the courts including caps on damages that can be recovered for the neglect or death of a nursing home resident and statues of limitations on wrongful death claims. 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.

Massachusetts should not strip away the rights and protections of residents. Nursing homes and other LTC facilities should know they will continue to be held responsible for providing the level of quality care that is required of them, and for which they are being compensated. This also incentivizes facilities to self-correct by addressing problems to improve care.

AARP Massachusetts appreciates your consideration of these views and urges you to overturn the immunity provided in Chapter 64 of the Acts of 2020. Families all across Massachusetts are looking to you to protect the health and safety of their loved ones living in nursing homes and other residential care facilities.