Before a Second Wave Hits… Repeal the Immunity for Nursing Homes from Civil Penalties


TwitterFacebookCopy LinkPrintEmail

In ordinary times, checks and balances and the separation of powers between co-equal branches of government – legislative, judicial, and executive – are a defining feature of American governance on both the state and local level.

But in extraordinary times – states of emergency – governors and presidents have by tradition and precedent been granted great deference to act unilaterally by executive order.

As Alexander Hamilton argued in Federalist No. 23 in 1787, because “the circumstances which may affect the public safety” cannot be reduced “within certain determinate limits … there can be no limitation of that authority which is to provide for the defense and protection of the community in any matter essential to its efficacy.”

On the state level in Connecticut, business hours were curtailed by Gov. Marcus Holcomb without legislative approval during the First World War, and Gov. Raymond Baldwin amended voting law by executive order during World War Two – both times without challenge.

With an estimated 116,000 deaths to date across the United States from COVID-19 – equaling the total of American deaths during WWI – we do not question either the declaration or the exercise of emergency powers by Gov. Ned Lamont. 

Connecticut lost 4,347 to WWII and has lost almost as many in a few months to COVID-19.

This is no flu.

Given the speed, scale and novelty of the challenge initially posed by COVID-19 to the elderly and the providers tasked with caring for them, in particular, it is understandable (if perhaps misguided) that Gov. Ned Lamont would grant nursing home operators immunity from civil lawsuits. Even the news that Lamont drafted the executive order based on language directly provided by industry advocates, while concerning, is not entirely persuasive that he acted corruptly or in error.

However, as hospital capacity concerns have eased, intermediary facilities are considered for closure, and Connecticut accelerates the phased reopening of the economy, what possible justification, or emergency, is there to extend such immunity into a possible second wave of cases, in effect allowing (as we have reported) nursing homes to fail inspection after inspection with little recourse for patients and negligible penalties for repeated and unresolved failures?

Keep in mind that such immunity from civil suits is not simply a matter of dollars and cents — or the capacity of the courts to handle what will surely be years of lawsuits in every other aspect of business not also granted immunity – an extended denial of the pre-trial discovery phase of civil proceedings removes a powerful check – necessary sunlight — on an industry which by all accounts, and recent history, has a dubious track record.

More than 2600 nursing home residents have died from COVID-19. If a second wave of COVID-19 cases does occur, surely it is most likely to sweep again over our nursing homes and our elderly.

Unfortunately, so far freed from the threat of civil penalties, we see little reason to believe that the next time will turn out much better.

This editorial was updated to change the attribution of immunity language reported in a linked story by the Washington Post, from “nursing home operators” to “industry advocates”.

The text of the Washington Post story is as follows:

“The immunity measure in Connecticut, where state officials have reported 2,500 covid-19 deaths linked to nursing homes, came after a group of health-care associations banded together to appeal for relief. In a March 31 letter to the governor’s office, reviewed by The Post, the group proposed wording for an executive order. Five days later, Lamont issued an order using some language from the letter.”