Well that didn’t take long. Our last PopTort, Immunity Madness, focused on the push to immunize the nursing home industry from liability, removing the financial incentive for nursing home owners – including for-profit companies – to maintain safety. No sooner did we post this than Big Business lobbyists started pushing hard to immunize all unsafe businesses, with Senate Majority Leader Mitch McConnell demanding that the next federal stimulus bill contain complete immunity for negligent companies. But his “red line,” as he called it, is now being called a “pipe dream.” (Malaphor alert!)
Starting with nursing homes, a New York Times article skewered Governor Andrew Cuomo for slipping nursing industry immunity into his budget, writing,
In New York, 5,300 nursing home residents have died of Covid-19. The nursing home lobby pressed for a provision that makes it hard for their families to sue.…
Advocates for nursing home residents said there were three longstanding safeguards against bad homes: family members who frequently visit; regular inspections by government regulators; and, as a last resort, lawsuits that can hold negligent homes accountable. But families can no longer visit. Regulators have largely stopped inspecting.
“All of the systems there to protect people are gone,” said Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy. “To me, the combination — rules are waived, protections are waived, nobody is going in to check. And now immunity? That is a lethal combination.”
As if that weren’t enough, Nils Lofgren, E Street Band guitarist for New Jersey’s “pre-eminent hero,” came to realize that his neglected and infected mother-in-law was in a facility that had also been granted immunity by New Jersey’s Governor. Not giving up, he said,
We’re just horrified that people’s first reaction is, ‘Well we’re making a lot of money, but now let’s make sure we’re not liable for what we promised to do, in writing’.…Don’t forget, they look you in the eye and say your loved one will be cared for.… It’s unconscionable and immoral and disgusting.…It’s like their true colors are coming out, and I hope we can hold them accountable.
Editorials in other states started popping up urging lawmakers not to grant nursing home immunity.
Then in Utah, which actually did go the next step and grant immunity to unsafe businesses, the impact of rewarding bad actors with immunity quickly became pretty obvious:
Nearly half of the employees of a Utah County business tested positive for COVID-19 after the business instructed employees to not follow quarantine guidelines and required staff who had tested positive to report to work, according to a written statement from county executives.
The statement, which was released Monday evening and was signed by Utah County Commissioners Tanner Ainge, Bill Lee and Nathan Ivie and the mayors of each city in the county, said that 48% of employees of the unnamed business tested positive for COVID-19.
Then, the Republican-led U.S. Senate Judiciary Committee held a hearing on the immunity issue. But rather than providing a forum to discuss McConnell’s “red line,” everyone rather chose to emphasize the far more urgent need for clear, science-based, and enforceable reopening guidelines. If that were done, liability – a red herring issue anyway - would take care of itself.
Unfortunately, so far all we have seen from the Trump administration is a politicized guidelines process, resulting in weak and biased guidelines. Even the CDC has been forced to step back from its public health recommendations.
But the good news is, these immunity developments have now crystalized thought and analysis about it, leading to strong “anti- immunity, pro-strong regulation” editorials. See, for example, the New York Times. The Boston Globe. The Orlando Sun-Sentinel. The San Francisco Chronicle. The Waco Tribune-Herald.
It also appears that the nursing home immunity issue was a bit of a bellwether, showing both the tragic public health impact and the potential political cost for politicians thinking about business immunity. In fact, when the issue of business immunity came up at Cuomo’s press conference last week, he punted to Congress and fell back on the message made clear at the Senate hearing: businesses should just comply with the regs.
Q: if businesses start to reopen, is there liability if there is an outbreak and should that we waived?
Cuomo: There is federal legislation now pending that is going to deal with this liability issue all across the board but it is a big question. If I’m advising the business owners, I say make sure you take all the required guidance and you follow the guidance. And the guidance is quite specific. So I would urge that they all do that.
Mitch McConnell, you’re gonna lose on this. Move on.
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