By Michael Sallah Scott Pham, BuzzFeed News, updated April 11, 2020
Just weeks after a coronavirus outbreak in a Florida assisted living facility, the state’s most powerful nursing home organization sent a letter to Gov. Ron DeSantis with an urgent request: Grant the homes sweeping protections from legal claims arising from the viral scourge.
The response: DeSantis is considering it.
In one of the first such requests in the country, the governor’s office is consulting with some of the state’s top lawyers to see if such immunity can be provided to nursing homes and other healthcare providers, the chief of Florida’s top healthcare agency told members of the Florida Health Care Association on Thursday.
The letter to the governor, signed April 3 by the industry group’s executive director, Emmett Reed, prompted angry responses from one of the state’s most well-known elder advocates, who has long fought to improve conditions in Florida’s elder homes.
“It’s jaw dropping,” said Brian Lee, Florida’s former chief long-term care ombudsman. “That they could, in the middle of a worldwide crisis, that they want to protect their interest, that they would make this request just floored me.”
If granted, the measure could set up a battle between the governor’s office and legal advocates in a state with a booming long-term care industry and the largest percentage of people older than 65 in the country. So far, the state has logged 731 virus cases among residents and staff members in the homes.
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The Republican governor, who drew national criticism for his reluctance to close beaches and other public places during the first round of outbreaks in March, did not publicly respond to the letter.
But Mary Mayhew, secretary of Florida’s Agency for Healthcare Administration, told nursing home members in a recorded call that the governor’s office was taking up the request.
“That is under consideration with the governor’s office, their legal team. Legal teams from other state agencies are currently evaluating what can be done and what is in the best interest in addressing the concerns you’ve identified,” she said. The immunity request was first reported by the News Service of Florida.
In his letter to the governor, Reed said that for nursing homes and healthcare workers to provide the best care, “we believe it is imperative that health care facilities and health care professionals are protected from liability that may result from treating individuals with COVID-19 under the conditions associated with this public health emergency.” He said he’s not asking for immunity for claims of willful or intentional misconduct or actions causing intentional harm.
But Reed asked the governor that in the event of staff shortages — typically one of the most critical violations at facilities — protections be granted against claims from family members alleging gross negligence or reckless misconduct.
Kristen Knapp, the industry group’s spokeswoman, sent an email to BuzzFeed News, saying the request is not just for nursing homes, but “all health-care providers,” including hospitals. The facility workers “should not have to worry about being sued for making tough decisions while trying to comply with government directives.”
Lee, executive director of the non-profit Families for Better Care, said the state should not grant immunity because some of the nursing homes may have acted irresponsibly during the initial outbreaks.
Lee said he was concerned some homes may not have ordered their staff to wear masks or isolate sick patients until COVID-19 cases were confirmed.
“How can we grant immunity if we don’t know what happened?” he said. “You can’t just grant diplomatic immunity. Some of these places have track records that are just bad, awful, sketchy.”
The first known outbreak in a group home in Florida occurred last month at the Atria Willow Wood assisted living facility in Broward County, where at least seven residents died and more than a dozen others tested positive for the virus.
At the time, DeSantis held a news conference and blasted the home, saying it failed to screen cooks, staff, and construction workers when they entered the facility and that criminal charges were possible. In all, 20 residents and one staff member tested positive for the virus.
In response to the governor, Atria Senior Living said the claims were a “completely inaccurate representation of our response to protect the health and safety of our residents,” and that since March 3, the home screened all visitors “before any state guidance on this was provided.”
Jim Wilkes, a longtime Florida attorney known for his advocacy for nursing home residents, said he did not believe the governor had the authority to grant the request to protect the homes. Instead, the matter would be up to the courts and legislature.