Legislature Seeks to Give Blanket Immunity to Nursing Homes

Senate Bill 277, which would put into law significant liability immunity for nursing homes and other long-term care facilities related to COVID-19, is making its way through the West Virginia Legislature.  This legal immunity would be retroactive to January 1, 2020, and does not have a sunset or end date - thus making the immunity effective in perpetuity.  The Bill was passed in the West Virginia Senate on a 25-9 vote and will head to the House of Delegates for further consideration.

AARP West Virginia State Director Gaylene Miller testified before the Senate Judiciary Committee in strong opposition to granting blanket immunity related to COVID-19 for nursing homes, assisted living facilities, and other long-term care facilities. In her testimony, she urged lawmakers to reject the Bill saying "West Virginia should not strip away the rights and protections of residents. Nursing homes and other long-term care 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."

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 rights 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 long term care facilities play an important role in our state and nation’s long-term services and supports system. During this time of pandemic, nursing homes and other residential care facilities face unprecedented challenges.

While West Virginia’s state-level and industry response to this pandemic has exceeded that of the rest of the country, tragically nearly 700 West Virginia nursing home residents and staff have lost their lives to COVID-19 since the start of the pandemic.

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 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, in-person family visits are effectively prohibited, and in-person long-term care Ombudsman visits are also restricted, there are fewer eyes observing what is happening in facilities.

Residents of nursing homes and other long-term care 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 West Virginia, there are already significant barriers to accessing the courts, including caps on damages that can be recovered for the neglect or death of a nursing home resident.

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.