Neville M. Bilimoria

Recent legislative activity in Ohio just highlights the public’s and the government’s fickle view of long-term care in our country.  As McKnight’s reported, Ohio is considering a law, if it passes, pushed by its legislature to ban residential care facilities, nursing homes, healthcare providers, state and local governments, schools and other businesses from mandating or requesting that an individual receive a vaccine, and they also would be banned from asking about an individual’s vaccination status.

So on one hand, we have seen lawmakers, the U.S. Department of Health and Human Services, Centers for Medicare & Medicaid, and various State Departments of Public Health all over nursing homes, telling them they need to boost their infection control policies and to safeguard residents. We have seen our senior living clients undergo strenuous and expensive government surveys, fining nursing homes for their handling of the COVID-19 pandemic in their facilities — despite the fact that the government itself did not know how to handle the pandemic. 

But on the other hand, we see bills like the one in Ohio attempt to completely strip the authority and autonomy of nursing homes to protect their residents by dictating vaccination and even prohibiting nursing homes from merely “asking” about vaccination in those settings. Well, which is it? More protection for seniors or less?

We all know that COVID-19 vaccination is crucial to combatting the COVID-19 pandemic.  Have Ohio lawmakers completely forgotten what nursing homes just went through in 2020 until today, and surely in the future? This bill outrageously would prevent nursing homes from doing the one thing they have tried to do from the very start (in spite of the government): protect residents and staff from the COVID-19 pandemic. Period!

One thing is for sure. If lawmakers are changing gears and now valuing privacy rights over health, where do we draw the line? It isn’t fair to penalize nursing homes for not having proper safety or infection control policies during the pandemic (a claim that is fraught with problems on its own), only to then remove the power of nursing homes to develop those very policies themselves in the name of “freedom” or “privacy” as they are trying to do in Ohio.

Clearly, the Ohio bill shows one thing about anti-vaxxers or folks that place privacy rights or “freedom” above health in our country: They are just not team players. These folks would rather take risks themselves, and put others in harm’s way in the name of “privacy”, instead of protecting themselves, and worse, instead of protecting others like our seniors who are particularly susceptible to COVID-19.

Not being a team player is just wrong. Why can’t the government come together to support our nursing homes and help them to protect our seniors rather than stymie the valiant efforts our nursing homes have made over the past year to protect them? The pandemic, more than ever, has shown that this is the time to place safety ahead of personal rights, even if that means sacrificing privacy for the sake of the health of our seniors and the heroic staff that serve them.  

Neville M. Bilimoria is a partner in the Chicago office of the Health Law Practice Group and member of the Post-Acute Care And Senior Services Subgroup at Duane Morris LLP; [email protected]