Nursing Home Critics Say COVID-19 Immunity Laws Are A Free Pass For Neglect

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Lisa Howze, Gia Howze and Palestine Howze. Palestine Howze died last year. Now her family is suing Treyburn Rehabilitation Center, where she lived. / Lisa Howze

Palestine Howze died April 14, 2020, in a North Carolina nursing home.

She had developed a pressure ulcer — or bed sore as they're commonly known. It flared up in December 2018 and just grew worse, says her daughter Lisa Howze. Infection set in.

"We begged them to take her to the emergency room, but they assured us that they could handle it," Howze says.

Howze and her three sisters contend that the nursing home could not. In their experience, Treyburn Rehabilitation Center in Durham didn't seem to be able to handle much. On a scale of one to five stars, the federal government gives Treyburn just one. It also gets below-average ratings on the ratio of nurses to residents. The government has fined Treyburn almost $190,000 in the past three years.

Lisa Howze and her sisters have filed a lawsuit against Treyburn Rehabilitation Center. But it's unclear whether it can proceed.

Like nearly 30 other states, North Carolina granted legal immunity to nursing homes to shield them from COVID-19 lawsuits. Nursing homes argued that they needed protection as the coronavirus raged through their facilities and the recommended safety guidance from the Centers for Disease Control and Prevention fluctuated.

But that immunity raises questions for families like the Howzes, who contend that because their mother's death had nothing to do with the coronavirus, they should be able to legally hold Treyburn Rehabilitation Center accountable.

"Palestine Howze did not have to die in that way or at that time," says Elizabeth Todd, the family's attorney. Their lawsuit is believed to be the first of its kind to challenge nursing home immunity.

The Howze sisters hadn't had a lot of luck with nursing homes in general. Treyburn was the third one they'd tried. But it was close to where they lived, so the sisters could visit often to keep an eye on things. They needed to, says Lisa Howze.

"We were there a lot and we found ourselves having to bathe her, just general things they were supposed to do," Howze says. "We'd come in several times when she hadn't been fed her tray; [it was] just sitting there."

Then COVID-19 exploded across the country, taking an especially deadly toll in nursing homes — which have accounted for more than a third of all coronavirus-related deaths. Nursing homes closed their doors in March, locking families out as the industry tried to control the outbreaks. Everything got harder. And took longer.

Palestine Howze needed specialists in wound care and IV antibiotics. Lisa Howze had her mother's power of attorney. Again, she says she begged Treyburn Rehabilitation Center to send her mother to a hospital emergency room where they could find the specialists she needed. Again, she was turned down.

"Their excuses were, 'Well, you know, the emergency room at the hospital is not taking new patients because of COVID. And she would be safer here if she stayed here. And the facility is equipped to take care of your mother.'"

None of those things turned out to be true, Lisa Howze says.

In May, a month after Palestine Howze died, North Carolina passed a sweeping liability shield for long-term-care facilities, meaning that nursing homes — with rare exceptions — were immune from lawsuits. The measure was made retroactive to March 10, a few weeks before her mother's death.

Lisa Howze and her sisters decided to sue Treyburn anyway.

"For the legislature to say that the nursing homes need protection in the middle of a pandemic, not the nursing home patients, is outrageous and it's unjust," says Todd, their attorney.

North Carolina's immunity law lasts until the pandemic is over. Todd is especially worried that the law gives a free pass to nursing homes with low staffing, like Treyburn.

"Literally, the nursing homes can take their own understaffing, their chronic understaffing, and use it as a shield to prevent any liability at all during the COVID pandemic," Todd says.

Through its attorneys, Treyburn Rehabilitation Center declined to comment.

But for many in the long-term-care industry, these immunity measures are a welcome relief, says Dave Voepel, CEO of the Arizona Health Care Association. Arizona Gov. Doug Ducey was among the first to sign an executive order granting nursing and assisted living facilities legal immunity.

"And for that we applaud him, because that just takes a little bit of pressure off," Voepel says, adding that it allows facilities to focus on what's most important. "We need to worry about keeping COVID out of the building."

Sometimes, he says, that cuts into the bottom line.

"Take, for instance, a 100-bed building and they really have 50 rooms, two beds per room," Voepel says. But to keep infection from spreading, those rooms may have to be converted to private rooms. So revenue is cut in half.

"It really takes its toll on the business side of the ledger," says Voepel.

Long-term-care facilities are facing a crisis of existential proportions, says Mark Reagan, the attorney for the California Association of Health Facilities.
That's because liability insurers are excluding all things COVID-19 when they renew policies.

That "would mean that any claims made regarding COVID infection, regardless of when that infection occurred in the past, would be subject to exclusion and no insurance coverage," says Reagan.

California does not have a liability shield, but the state has waivers, relaxing standards for personnel and bed space, for example. Congressional Republicans wanted a national immunity law but dropped it as part of the deal for the latest coronavirus relief package. Reagan still has hopes.

"What we are merely asking for is that caregivers and their employers don't get punished for doing the best that they could under the circumstances," he says.

But attorney Elizabeth Todd says Treyburn Rehabilitation Center wasn't doing the best it could for Palestine Howze. And she says that one of North Carolina's immunity criteria is that a facility must be acting in good faith, though that's not defined in the law.

"And so we argue the pretty shoddy state of Treyburn nursing home as COVID approached, and then as Mrs. Howze became very ill, that that was not providing health care in good faith," she says.

A Superior Court judge will decide whether to dismiss the case because of the immunity statute or allow it to continue, potentially giving Lisa Howze and her sisters their day in court.

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