As Some Senators Decry ‘Worsening Crisis’ in Nursing Homes, New Stimulus Plan Includes Liability Shield

A bipartisan group of senators released a stimulus plan on Monday consisting of two different aid packages, $748 billion and $160 billion apiece — one of which includes a controversial liability protection for health care providers and other businesses.

The latter aid package contains parameters, favored by business interests of multiple stripes, on liability for claims related to the pandemic.

In the early months of the coronavirus, several states took steps to introduce liability protections for a range of health care providers, including skilled nursing facilities. But in the wake of sharp criticism from resident advocates and lawmakers, some of those protections were altered or repealed over the course of the year, with New York rolling back some of those safeguards in July and Illinois modifying some of its protections in spring.


The “Bipartisan State and Local Support and Small Business Protections Act” would provide $160 billion in funding for state and local governments, as well as liability protections — if an agreement is reached on those provisions, according to the press release announcing the deal from the office of Sen. Bill Cassidy, a Louisiana Republican.

The other sponsors of the proposed bills included Sens. Joe Manchin, D-W.V., Susan Collins, R-Me., Mark Warner, D-Va., Jeanne Shaheen, D-N.H., Lisa Murkowski, R-Alaska., Angus King, I-Me., Mitt Romney, R-Ut., Maggie Hassan, D-N.H., Rob Portman, R-Ohio, and Dick Durbin, D-Ill., as well as Reps. Josh Gottheimer, D-N.J. and Tom Reed, R-N.Y.

The liability protections in the bill would establish a gross negligence standard for COVID-19 exposure, medical practice, and workplace testing claims, with provisions that “employers are not subject to liability under federal employment law in COVID-19 exposure cases or change in working conditions related to COVID-19 if the employer was trying to conform to public health standards and guidance,” a summary of the bill indicated.


An employer’s decision to provide personal protective equipment (PPEE, or outsource “COVID-19 policies, procedures, or training, workplace testing, or financial assistance to an independent contractor” will not constitute evidence of a joint employment relationship or employment relationship, the bill also stipulates.

The bill would allow plaintiffs to file in state court, while defendants have the option to remove to federal court. The protections would apply to claims from injuries occurring from December of last year to the later of either a year after the bill is enacted or the end of the COVID-19 public health emergency.

‘Worsening Crisis in Nursing Homes’

The bills come four days after Sens. Bob Casey, D-Pa., and Ron Wyden, D-Ore., released an update to a report on the response of the Trump administration to COVID-19 in nursing homes that was originally released in July and updated in September.

The December update, a self-described “snapshot of the worsening crisis in nursing homes across the U.S.,” reported that more than 15 nursing home residents died of COVID-19 per hour in November, with that number rising to 19 resident deaths per hour during the week of November 22, citing data from the Centers for Medicare and Medicaid Services (CMS).

“Over the past three months, the rate at which COVID-19 deaths are occurring in nursing homes is increasing rapidly,” the report said. “Between September 6, 2020 and November 22, 2020, more than 20,000 nursing home residents died of COVID-19. During this period, the number of weekly deaths in nursing homes more than doubled, from approximately 1,300 deaths during the week of September 6, 2020 to 3,100 deaths during the week of November 22, 2020, equal to a 133% increase.”

Deaths reported among workers from COVID-19 also spiked, rising from 28 in the week of September 6 to 55 the week of November 22, an increase of 96%, according to the report.

Source: “The Cost of Inaction” report

Infections at nursing homes also spiked from September to November, which according to the report is a potential signal that more deaths could follow. And workforce shortages, always a challenge in the SNF world, have increased since Labor Day, the report added.

“Between September 6, 2020, and November 22, 2020, the number of confirmed COVID-19 cases among residents increased by 181% from approximately 7,500 to 21,200, an almost three-fold increase,” it said.