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09/16/2020 - 11:04pm
IEET Fellow Kevin LaGrandeur has recently been appointed to the editorial boards of two new journals dealing with ethics and emerging technology: AI & Ethics, and The Journal of Posthumanism.  He has also been appointed to the Advisory Board of the Lifeboat Foundation, whose mission is “encouraging scientific advancements while helping humanity survive existential risks and possible misuse of increasingly powerful technologies, including genetic engineering, nanotechnology, and robotics/AI…’
09/16/2020 - 10:34am

By Craig Konnoth

In the 1980s, a vanguard of critical race theorists debated their contemporaries as to whether law could or should play a role in achieving equity — in particular, racial equity.

Scholars such as Kimberlé Crenshaw and Patricia Williams argued that while legal discourse historically had been used to oppress Black, Indigenous, and people of color (BIPOC), history had shown that in the law also lay the seeds of empowerment. Conceptualizing black individuals as persons endowed with negative legal rights, as a community subject to heightened legal solicitude because of historical, legal injustices, helped, in part, undergird black selfhood, dignity, identity, and activism. Law could thus be a discourse of despair — but also one of hope.

Whether or not the years have proved those claims correct as to the law, today, a similar debate unfolds in the context of race, medicine, and health care. Today, medicine and the health care system embody discourses of power that rival the law. Will these discourses inevitably serve to oppress BIPOC — and if not, how can we harness their power to achieve justice? Those are the questions that this symposium seeks to answer.

Medicine and the health care system engage power discourses that can harm or help. The pronouncements of doctors, nurses, insurers, hospital administrators, school counselors, social security adjudicators, and many more, delineate the relationship between the health system and race. They frequently determine the life course of those they address: whether a child gets a fair education or suffers discipline, whether a person living with a disability gets access benefits, or is denied, and indeed, in many cases, whether someone lives or dies.

Further, medical discourse, and the power it exudes, is no longer limited to medical institutions. Consumers are increasingly conceptualizing of themselves using constructs developed in medical contexts. Their self-understandings and those of their families and communities are shaped through genetic profiles easily obtained through consumer testing kits. Their existence and behaviors are biometrically quantified through apps that measure their heart rate, brainwaves, and sleep and ovulation patterns. Their emotions and moods are partially — or fully — encompassed by medical concepts.

And medical institutions themselves encourage this dynamic, often for magnanimous reasons. Many institutions have started to engage lay individuals in developing medical policy and practices. Further, it has become clear that health and welfare is governed as much by social and environmental forces — so-called social determinants of health (SDoH) — as by inherited characteristics. Accordingly, medicine has turned for assistance to the law, social work, housing policy, and the like, thus imbuing those systems with medical logic and rationales.

Many of these changes have generated what I call “medical civil rights” that, at a general level, provide benefits to numerous individuals. Advocates rely on the language of medicine to seek rights, protections, and benefits for clients, using a range of state and federal statutes. The push to acknowledge and address social determinants has gained steam, with insurers from Aetna to Medicaid covering certain kinds of housing and even (in the case of Medicaid) employment assistance.

And yet, as this symposium shows, BIPOC are often left behind. Within medical institutions, BIPOC receive worse treatment, experience worse outcomes, and die at higher rates than their white counterparts. Such discrimination is embedded within medical institutions in deep and intersectional ways. In this symposium, Kimani Paul-Emile, for example, shows how lower status workers within medical institutions, such as orderlies and nursing assistants, who are disproportionately BIPOC, are generally an afterthought. In the COVID-19 crisis, such workers have received limited protections and support from the institutions where they work.

Outside traditional medical institutions, race remains an afterthought. As Ruqaiijah Yearby writes, racism, which determines life outcomes, is often left out of enumerated social determinants of health. Both she and Lindsay Wiley make robust cases for including race as such a determinant in this symposium. Wiley, in turn, anticipates and addresses objections to the inclusion of racism as a determinant. Indeed, blindness towards race colors which determinants SDoH scholars focus upon. For example, until a few years ago, policing, which disproportionately affects BIPOC, was not a major area of study for SDoH scholarship. Keon Gilbert’s contribution shows those links.

Indeed, invoking medical frames can often counteract the ability of BIPOC to invoke SDoH discourse. Genetic understandings of self can extend to genetic understandings of others. And, as Dorothy Roberts’s pioneering work has shown, genetic understandings of race revive old and dangerous chestnuts about race’s biological situatedness. For example, in the COVID-19 crisis, as Colleen Campbell’s contribution to this symposium shows, vaccination debates have fixated on notions of genetic and biological difference between race. This, in turn, shifts focus away from the gross social disparities that far better explain the dismal health outcomes among BIPOC during the pandemic.

BIPOC are thus in a no person’s land — generally left unprotected, and often, actively persecuted — by both law and the health care system. Michele Goodwin’s contribution to this symposium poignantly exposes that intersection, describing how, instead of attending to a patient who relied on an oxygen mask to breathe, medical personnel called a police officer whom they helped to disconnect the patient from her mask. Legal prejudice was backed by medical prejudice. Collaboration between these institutions resulted in the death of the patient.

Law and medicine thus interlink to create a robust power discourse that continues to enmesh BIPOC within systems of oppression they have long endured. But is there hope? Just as activists, advocates, and scholars have fought for — in certain times, contexts, and places, successfully — the liberatory potential of law, it may be possible to agitate so that the power discourse of law/medicine can be redirected into creating equity. We continue to explore those themes in future installments of this symposium.


Craig Konnoth is an Associate Professor of Law and Director of the Health Law Certificate Program at the University of Colorado Law School. Konnoth is the guest editor of Understanding the Role of Race in Health, a Bill of Health digital symposium.

The post Understanding the Role of Race in Health: A New Digital Symposium appeared first on Bill of Health.

09/16/2020 - 7:00am

By Sebastián Soto

Chile is heading into a constitutional change.

After 40 years, the Chilean 1980 Constitution, enacted under Pinochet’s rule, but subsequently amended over fifty times, will probably be replaced. On October 25th, a referendum will decide whether or not to call a constitutional convention to change the Constitution.

If the referendum passes, in April 2021 the convention will be called and will have nine months (extendable for three more, if needed) to write a new constitution. If the convention reaches an agreement on a new constitution by 2/3 of its members, a new referendum to approve it will be called during the first semester of 2022.

Social rights are expected to be one of the most contested topics discussed during the process.

The current Constitution recognizes the most common social rights as the right to education, the protection of health, the right to social security, and the protection of the freedom to work.

However, there are several criticisms regarding the specific constitutional clauses which recognize these rights. First, they are not justiciable, which means that people cannot make applications to courts for relief if their social rights are violated. Second, some have argued that the constitutional recognition of these rights does not give enough power to the state to ensure their satisfaction. A final criticism states that the constitutional clauses are “too thin” and lack the depth needed to guide policies protecting these rights.

Apparently, the discussion will follow the Latin American trend regarding social rights. And this is not good news. If we focus on the right to health, we can see that South American constitutions are extremely “thick” and aspirational.

For example, consider some of the newest constitutions in the region: the Constitution of Colombia (1991) addresses the issue in 307 words; Brazil’s constitution (1988), in 565 words; and Ecuador’s (2008), the longest, in 1225 words. Several topics are regulated, or at least mentioned, in health care clauses: the aim of health, the role of government and private sector, funding, community participation, access, sanctions, the existence of a single health system, guiding principles (as “solidarity, efficiency and co-responsibility” in Bolivian constitution), maternal healthcare services, indigenous health care, among others.

What should Chile do? In my opinion, following this trend is not advisable. Constitutions, as Cass Sunstein wrote almost twenty years ago, “are pragmatic instruments, not outlines of a just society, and hence there is a gap between what constitutions say and what justice requires.”

I think we Chileans, as well as the international community, should hear this call when thinking about our process. A long and dense enumeration of social rights, common in Latin American constitutions, would create high expectations, which could injure the credibility of the new constitution. It would transform those rights, not in the sense of Dworkin’s “rights as trumps,” but as mere aspirations. This trend eclipses and leaves behind what is really important to improve our wellbeing: good policies and political consensus to make important changes.

The right to health in the current Chilean Constitution could be a good example. The clause is relatively thin (no more than 100 words) and it is not justiciable. It states the right to protection of health, the state’s duty to ensure the implementation of health-related actions, and the existence and coordination of both a state-owned and private system, among other specific regulations. Many have called to write a longer clause to insure the improvement of health and reinforce state capacity.

Nobody can deny that our health system needs urgent reforms. Although it is rated highly in comparison with others in the region, it is still far from being acceptable, especially for the poorest. But these problems are closer to policies than to constitutional provisions. Constitutions must leave room for politics and policies to do their job.

We cannot forget another important feature of Chilean constitutionalism. As with most constitutions in the world, the Chilean Constitution is a living constitution; we have neither an originalist nor a textualist interpretation. The interpretation of our enumerated individual and social rights evolves in connection with our own constitutional development, international human rights law, and global constitutionalism.

The right to health is, again, a good example. Although it is not justiciable, courts have invoked the right to life and physical integrity to spread protection to health. Under this interpretation, several decisions of the Supreme Court have required public funding of expensive medical treatments, or have limited the freedom of the private sector to raise the cost of health programs. These decisions show an evolution in constitutional interpretation that is common not only in health protection, but also in other rights.

The Chilean constitutional moment is in its very first steps. The following years will be crucial to building our next decades. We must not forget that the current constitution, undoubtedly, has granted the best thirty years in the history of our country from a political, social, and economic perspective. Whether the new constitution can improve this record depends, on some important level, in the capacity we have to look at the constitution as a pragmatic instrument to progress and political stability.


Sebastián Soto is a constitutional law professor at Universidad Catolica de Chile and the Director of the Public Law Department at the Law School. He is a former visiting scholar at the David Rockefeller Center for Latin American Studies, Harvard University.

The post Pragmatism and the Chilean Constitutional Moment appeared first on Bill of Health.

09/16/2020 - 2:00am

Newly available on Netflix is ​​“Cryogenization: Live Twice.” 

09/15/2020 - 3:30pm

By Roberto Gargarella

From the first time that I wrote about the COVID-19 situation in Argentina, June 8, until the date I am writing this, September 7, things have changed significantly.

First, the number of people who have died of COVID-19 in Argentina has risen to nearly 10,000; the 16th highest death toll in the world. The total number of cases is 500,000; which places Argentina among the top 10 countries for infections worldwide.

These alarming statistics are particularly worrying in Argentina, given a number of additional facts mentioned in my original blog.

First, the high number of deaths and infections, which is not unusual worldwide, contrasts with a highly unusual and exceptional quarantine, for its strictness and length. As of today, the country has imposed almost 6 months — 170 days — of strict quarantine, which makes it one of the most prolonged in the world.

The contrast between the extremely extended quarantine and the poor results in containing COVID-19 prompt reflection on some of the problems in the administration of the crisis.

First, these poor results stem in part from the fact that after months of strict confinement, the population began to disobey the lockdown, and evaded the established restrictions in various ways.

As I understand it, that attitude of popular rebellion, after enormous initial social support for the crisis measures, had to do with the recognition that the government’s initiatives were beginning to show themselves as poorly executed or ill-conceived.

According to the consulting firm Poliarquía, in April of this year, President Alberto Fernández had an approval rating of 84% and a disapproval rating of 9% for his handling of the crisis. He was praised, above all, for his decisive and early response to COVID-19.

But, since then, the approval and disapproval ratings have grown closer together, and are now only 14 points apart — 53% approval and 39% disapproval.

Today, the inertia and insistence on a single response — the clumsily managed and extreme confinement — is criticized even on the grounds of its initial justification to prepare the health system for the pandemic. That justification is no longer understood as that initial strict response was not accompanied by such measures as contact tracing, identification of cases, and follow-up.

As I understand it, these growing problems are driven by one overarching institutional factor, which I pointed out in my initial text: a constitutionally unsustainable procedure for decision-making, which has grown increasingly concentrated and elite: the President and a group he has selected take all manner of decisions in the name of everyone else.

In the beginning, some commentators justified concentrated decision-making in the hands of the executive due to the emergency and the perceived impossibility of having Congress take action. But today it has been months since the legislative branch has resumed its functions, which further undermines the constitutionality of the measures that the executive branch has ordered.

The executive “discretion,” which is being reinforced with this government during the perfect excuse of the pandemic, has been illustrated recently by two key examples, one more serious than the other.

First, there was the sudden attempt at expropriation of the agroindustrial group Vicentin SAIC by the President in an arbitrary and capricious fashion with no formal process. This was a surprising initiative that the President found himself obligated to abandon without any good explanation for what his intention was in the first place.

Second, the President has just recently begun a process for judicial reform, which most people consider to be designed fundamentally to ensure the impunity of the Vice President, Cristina Fernández de Kirchner (unrelated to the President), who is facing a number of corruption charges.

Although the judicial reform requires a much more extensive reflection than this space allows, briefly I will say that in comparative terms, this Presidential initiative is both surprising and difficult to justify: Why begin a contentious reform process like this, with huge economic cost implications, amid an emergency that precludes public discussion, and at a time when the country’s economy is severely suffering because of the crisis?

In short, the concerns raised in my initial piece on the rule of law in Argentina have only grown stronger based on what the government has done in the intervening months.

Roberto Gargarella is Professor at the University of Buenos Aires and the University Torcuato di Tella and Senior Researcher at the National Research Council, CONICET.

The post Concerns Mount About Rule of Law in Argentina During COVID-19 appeared first on Bill of Health.

09/15/2020 - 10:00am

By Dorit Rubinstein Reiss and Y. Tony Yang

A future COVID-19 vaccine will not work without sufficient uptake, and some are considering mandates to get that uptake. Some scholars have gone so far as to call for compulsory vaccination for all U.S. residents in a recent USA Today column.

We believe premature mandates won’t work. In fact, they could backfire spectacularly.

There are several reasons for this. First, once we have an approved vaccine, we will not have enough doses to go around for those who want them. Forget mandates: even if all goes remarkably well, we will begin by producing and distributing tens of millions of doses—not the hundreds of millions needed to cover the entire United States.

Given our limited capacity to produce the vaccine at first, the more urgent question now is who we prioritize in giving the new vaccine—which is being discussed by both individual scholars and special committees at the National Academies of Science, Engineering, and Medicine and the Centers for Disease Control and Prevention. Simply put, we cannot mandate a vaccine until it is broadly accessible, and by that time the pandemic may actually be controlled to a degree that a mandate will not be needed.

Second, a universal mandate may make the problems facing broad acceptance of COVID-19 vaccines even worse than they are now. A recent Gallup poll shows that more than a third of Americans would refuse a free, FDA-approved vaccine if it was ready today. Mistrust is, of course, a grave threat to COVID-19 vaccine acceptance. While this is fueled in part by misinformation from the usual anti-vaccine suspects, there is also deep concern and skepticism about the unusually accelerated timetable of the U.S. government’s “Operation Warp Speed” and the current Administration’s political considerations before the November elections.

We have already seen masks and social distancing politicized, and strong resistance to mandates. The reality is that most broadly applicable mandates, unless accompanied by self-enforcement mechanisms, need some buy-in and compliance to work well. A universal vaccine mandate in the face of widespread mistrust would raise real enforcement problems.

Moreover, going to mandates without transparent efforts to educate the public is a shortcut to suppressing vaccine safety concerns, and will breed even stronger resistance. Rather than immediately reaching for mandates, the first response to concerns should be to increase transparency as much as possible. We should be public and vocal about the ways the existing oversight process is conducted and monitored.

For example, most people don’t know that there has been, for months, a National Institutes of Health committee overseeing the vaccine process and receiving updates from Food and Drug Administration officials. Most don’t know that there’s a working group of more than 40 experts convened at the CDC and led by an independent expert to monitor COVID-19 vaccines, and that this group presents its work through open meetings available online. When clinical trial data comes out, it should also be made transparently available. We may end up needing some mandates for vaccines; but we may not, and we should start with less compulsory measures.

Finally, there are legal barriers. A universal vaccine mandate for adults has never been imposed in the United States, and a COVID-19 vaccine mandate would almost certainly be challenged in court. Plus, it is doubtful that the federal government has the authority to impose one. (And it is not clear states do, either.) Not least, the litigation would provide anti-vaccine groups with an additional forum in which to query vaccine safety, as well as its legality.

Although mandate supporters would draw on the 1905 Supreme Court case of Jacobson v. Massachusetts, which upheld a local vaccine mandate in Cambridge with conditions, it is not clear that case would support a broad law mandating compulsory vaccination nationwide—especially if lesser measures were not tried first. A tailored mandate—one for healthcare workers or essential workers—would be better justified and more likely to be upheld than a universal one.

Universal mandates should not, at this point, be on the table. Putting them there now will do more harm than good.



Dr. Dorit Rubinstein Reiss is a professor at the University of California Hastings College of the Law.




Dr. Y. Tony Yang is a professor and the executive director of the Center for Health Policy and Media Engagement at the George Washington University School of Nursing, and the Department of Health Policy and Management, George Washington University Milken Institute School of Public Health.

The post Why a COVID-19 Vaccine Shouldn’t be Mandatory appeared first on Bill of Health.

09/15/2020 - 7:00am

By Sravya Chary

For many U.S. colleges and universities that opted for in-person instruction this fall, the return to campus during the COVID-19 pandemic has proven disastrous, and prompted the question: who’s to blame for these new outbreaks?

Although administrators are quick to blame student behavior, in this post, I will argue that the administrations are ultimately at fault – their negligence has put students’ health at risk and exacerbated the public health catastrophe.

A Surge in COVID-19 Cases at U.S. Colleges and Universities

Just one week into in-person instruction, the University of North Carolina at Chapel Hill switched gears to a fully remote semester after 140 students and five employees tested positive for COVID-19. According to administration, in that week the positivity rate on-campus rose from under 3% to a staggering 14%.

UNC-Chapel Hill is not the only university however, that opted for in-person learning and faced challenges upon reopening. According to the New York Times, more than 24,000 additional COVID-19 cases have been counted at U.S. colleges and universities since late August.

The Blame Game

As COVID-19 cases increase on college campuses, schools continue to issue statements conveying their disappointment in students.

Jonathan Sauls, associate vice chancellor for student affairs at UNC-Chapel Hill, stated that an overwhelming number of students were following university COVID-19 guidelines but, “[u]nfortunately, 90% compliance is not good enough.”

This assertion is shocking: Even the most robust of public health measures often do not require 90% compliance; expecting 100% compliance is simply outrageous. So who’s really to blame for campus COVID-19 outbreaks?

Negligence on Behalf of University Administrations

In a recent Bill of Health blog post, Shelly Simana sheds light on the prevailing question of whether or not individuals infected with coronavirus can sue those who transmitted the disease to them for negligence.

Following the framework for negligence that Simana outlined in the post, a compelling argument can be made for negligence on behalf of university administrations opting for in-person learning without adequate safety measures in place. The UNC-Chapel Hill case will be analyzed along this framework as an example.

Duty to Ensure the Safety of Students

There exists a “special relationship” between a college and its students, per a landmark ruling from the California Supreme Court. The decision argued that colleges and universities have a duty to protect students from any potential violence in school-sponsored activities. The rationale, per Justice Carol A. Corrigan: “Students are comparatively vulnerable and dependent on their colleges for a safe environment.”

Although this ruling may seem limited, its repercussions are widespread. An established special relationship extends a duty of care from the college to its students. Thus, colleges and universities are obligated to protect their students from activities that could cause harm (in this case, such activities may include resuming in-person instruction and on-campus residential life). 

A Breach of Duty

Following the second prong of the framework provided by Simana, it is vital to show that the aforementioned duty was breached.

A breach of duty to ensure the safety of students occurs, in this case, when students are hosted in close quarters on a college or university campus without proper safety measures, contact tracing, or COVID-19 testing. Further, all must be continuously enforced and all are required to uphold the duty to protect students.

In a letter to UNC-Chapel Hill, the Orange County Health Department provided the following recommendations:

  • First, to aggressively restrict campus housing to solely accommodate at-risk students without access to equitable educational resources and students with dire housing needs.
  • Second to, at a minimum, conduct the first five weeks of the fall semester remotely.

In response, UNC-Chapel Hill only reduced its residential capacity to 64%, and continued to offer many in-person courses.

Hosting students on campus and in classrooms and not closely adhering to the exact recommendations provided by the local public health agency is a breach of duty to protect students.

The Orange County Health Department recognized and articulated the threat of in-person learning at UNC-Chapel Hill and, by not abiding, the university put students’ health at risk.

Causal Connection

Now that a breach of duty has been identified, a causal connection between the breach of duty and harm to students must be established.

The UNC-Chapel Hill COVID-19 Tracker shows that on the first day of the semester, August 10, no new COVID-19 cases were reported. However, just a week into the semester, an aggregate of 168 cases were reported (although the number could potentially be much higher, considering unreported cases) with an increasing rate of daily positive cases until August 19.

Although a causal relationship cannot be concretely determined without further statistical analysis, a positive association between in-person learning coupled with students’ return to campus and new COVID-19 cases is glaringly evident. This sets the groundwork for a causal connection.


In this case, the damages may include student exposure to COVID-19, which could lead to hospital bills, other medical expenses, and potential suffering and death. Further, student exposure to COVID-19 could exacerbate demands on already at-capacity hospitals and healthcare facilities, threaten public health, and facilitate spread of the virus to students’ families and friends back home.

In the narrowest terms, at UNC-Chapel Hill, the damages took the form of 905 positive COVID-19 cases over the month of August.


Colleges and universities in similar situations to the one presented above should take the following steps to protect their communities:

  • First, drastically increase COVID-19 testing and contact tracing then quickly isolate positive cases and contacts. The University of Illinois at Urbana Champaign has shown an on campus positivity rate of 0.52% over the last seven days compared to the CDC’s national average of 9%. At UIUC, testing is abundant and positive cases are immediately isolated while contacts are quarantined.
  • Second, rather than blaming the student body at large for an increase in cases, ask students to weigh in on the matter. Dartmouth College student Hannah Lang beautifully articulates the importance of amplifying student voices to help schools create a more robust COVID-19 response in her commentary for WBUR.
  • Finally, if all else fails and cases continue to increase, schools must consider moving to remote learning.

If schools opt for in-person learning, they must be vigilant in order to protect the health and safety of their students and communities at large. If a school fails on these measures, the administration should be held liable for the spread of COVID-19.


The above opinions are wholly my own and in no way represent the opinions of my associated institutions.

The post Who’s to Blame for COVID-19 Outbreaks at Colleges and Universities? appeared first on Bill of Health.

09/15/2020 - 2:30am
As I described in a series of articles, plaintiffs have been filing more lawsuits when hospitals administer treatment contrary to advance directives and other expressed instructions & wishes. And many of these cases are being resolved in their favor.I just posted some additional cases. One of these is Khalil v. Jersey City Medical Center. The son of 86-year-old Zakaria Khalil alleges that the hospital intubated and put Khalil on life support despite his DNR and DNI orders and despite his DNR bracelet. The son is suing for assault & battery, negligence, NIED, and violation of the AD act. He is seeking punitive damages.
09/16/2020 - 11:04pm

She didn’t know she could, not having seen one during the week the skillware was in her glasses’s software library. But the company that supplied Starbucks with barista-guiding software had military contracts for slightly different sorts of skill, and was not above their occasional misplacement.

Three days before the self-leaked military software was erased from a few hundred unsuspecting coworkers’ glasses, she very illegally copied some files from her own to her little brother’s in an attempt to make doing the dishes like she did at work a glamorous grown-up game. It didn’t work....

09/14/2020 - 1:00pm

By Laura Karas

Immunity from liability disincentivizes nursing homes from expending the time, money, effort, and resources needed to keep residents safe.

The COVID-19 pandemic has highlighted the stakes of the issue: granting legal immunity to nursing homes for COVID-related care is tantamount to leaving our most vulnerable out on the street corner.

According to data from the Center for Medicare and Medicaid Services, there have been over 216,000 confirmed COVID-19 cases and over 53,000 COVID-19 deaths among nursing home residents.  These figures are likely underestimates, as nursing homes have had to adjust to federal reporting guidelines.  Recent data indicate that deaths in nursing homes are on the rise in states with COVID-19 resurgences.

Kimberly Hall North in Windsor, Connecticut, was one of many nursing homes ravaged by COVID-19.  Reports in June of this year cited 47 deaths among its 138 residents, a death toll exceeding one-third of the nursing home’s resident population.

Many States Have Granted Nursing Homes Immunity from Liability

Connecticut, which was hit particularly hard by COVID-19 in the nursing home setting, acted quickly to grant immunity to nursing homes, shielding them from liability in a move that has threatened the health and safety of residents across the state.

Relevant portions of Connecticut’s executive order read as follows (emphasis mine):

any health care professional or health care facility shall be immune from suit for civil liability for any injury or death alleged to have been sustained because of the individual’s or health care facility’s acts or omissions undertaken in good faith while providing health care services in support of the State’s COVID-19 response, including but not limited to acts or omissions undertaken because of a lack of resources, attributable to the COVID-19 pandemic, that renders the health care professional or health care facility unable to provide the level or manner of care that otherwise would have been required in the absence of the COVID-19 pandemic . . .

Connecticut was not alone in granting legal immunity to nursing homes; more than a dozen other states have imposed similar protective measures.  Although immunity may make sense for hospitals or clinics that treat coronavirus patients, the inclusion of nursing homes in the definition of a “health care facility” subject to immunity was unwarranted and dangerous.

Nursing homes are fundamentally different from hospitals or clinics; the former are not designed to treat the acutely ill but rather to provide long-term care to individuals unable to live independently and care for themselves.

Nursing home residents’ close living quarters, advanced age, high frequency of comorbid health conditions, and need for personal care all demand stringency in precautions, frequent point-of-care testing for residents and employees (even those who are asymptomatic), and rapid and effective containment efforts when new COVID-19 cases are identified.

When one-third of a nursing home’s population is decimated in a matter of months, it points to failed outbreak management. COVID-19 deaths due to a failure by nursing homes to take adequate preventive and outbreak response measures should find no protection under the laws of our nation.

Over 30 years ago, in response to findings of rampant abuse and neglect of nursing home residents, Congress passed the Nursing Home Reform Act of 1987, which mandates that skilled nursing facilities “provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.” 42 U.S.C. § 1395i-3(b)(2).  If evidence exists that nursing homes failed to take the proper preventive steps to avert a COVID-19 outbreak, then they violated their legal duty under the Nursing Home Reform Act, and should be held liable.

States, Facing Pressure to Hold Nursing Homes Accountable, Show Signs of Reversal

Under pressure, states have begun to reverse immunity orders. In New York, state lawmakers introduced bills to repeal liability protections for nursing homes soon after the passage of New York’s Emergency or Disaster Treatment Protection Act in April 2020, which had granted nursing homes broad immunity. In early August, Governor Cuomo did away with immunity for hospitals and nursing homes vis-à-vis care not related to COVID-19, but facilities remain shielded for care provided in the course of COVID-19 treatment.

Notably, New York State’s original grant of immunity to nursing homes was one of the most sweeping in the country; nursing homes were only liable for gross negligence, intentional criminal or reckless misconduct, and intentional infliction of harm, and were not liable for harm resulting from a “resource or staffing shortage,” such as a lack of personal protective equipment.

Asserting Nursing Home Residents’ Enforceable Rights

Families and nursing home residents in Connecticut, New York State, and other states with similar immunity orders can take action: they can encourage the Attorney General to bring suit against state governments that have deprived nursing home residents of their legal rights under the Nursing Home Reform Act and the Civil Rights of Institutionalized Persons Act of 1980 (CRIPA, 42 U.S.C. § 1997 et seq.), a law designed to protect institutionalized persons in settings like nursing homes, correctional facilities, and other forms of residential care.

CRIPA empowers the Attorney General to investigate and sue when a “pattern or practice” deprives residents of their constitutional or federal statutory rights.  Private, for-profit nursing homes may fall outside of the purview of CRIPA, which applies only to institutions owned, operated, or managed by a U.S. state or political subdivision of a state, or which provide services on their behalf.

In late August, the Department of Justice sent requests to New York State, New Jersey, Pennsylvania, and Michigan to gather data on COVID-19 infections and deaths at state-run nursing homes as a step toward determining whether a federal investigation under CRIPA is warranted.  At issue here is whether states ordered nursing homes to admit patients with confirmed or suspected COVID-19, and whether states prohibited nursing homes from testing for COVID-19 prior to admission.

The Bottom Line

As Gregory Stroud writes in an editorial for The Connecticut Examiner, “immunity from civil suits is not simply a matter of dollars and cents.”  Liability creates accountabilityAnd liability changes behavior.

The good news is that deprivations of legal rights have a remedy, and suits against state governments for their imprudent and right-infringing immunity orders could provide a path to justice for the vulnerable and high-risk nursing home population.

The post Why We Must Hold Nursing Homes Legally Accountable for COVID-19 Outbreaks appeared first on Bill of Health.