Health care providers across the continuum have grappled with major challenges in providing care for patients with COVID-19, and several states have taken steps to shield them from lawsuits related to care provided during the national emergency.
Skilled nursing facilities are often included in those liability protections, but the extent to which the protections apply vary from state to state, and there are some key differences in how the states are phrasing their rules.
The patchwork quilt of liability rules is further complicated by local efforts to initiate civil and criminal investigations into nursing homes with significant COVID-19 outbreaks. The mayor of Joliet, Ill., for instance, late last week called on Gov. J.B. Pritzker to launch a state Department of Public Health probe into a facility where 22 residents and one staff member died from the virus.
One state over, Carmel, Ind. mayor Jim Brainard wrote a letter to one nursing home that allegedly refused to perform COVID-19 testing as directed, warning the administrator that they could be charged with negligent homicide if testing was not conducted and residents or staff subsequently died. The administrator, at least according to the mayor’s office, eventually complied with the testing directive.
The state of New York has become the epicenter of the global COVID-19 outbreak, with 211,550 cases reported as of April 16, according to the Centers for Disease Control and Prevention (CDC). At the beginning of the month, the state took action to grant “qualified immunity” to a range of health care providers, including nursing homes, through the Emergency Disaster Treatment Protection Act included in the state’s budget for fiscal year 2021.
The Emergency or Disaster Treatment Protection Act in New York takes steps to protect health care facilities and professionals from liability that could stem from treating COVID-19 patients under conditions related to the public health emergency, according to the act text itself.
This immunity does not extend to harm or damages caused by willful or criminal misconduct or gross negligence, but it will cover harm or damages if they stem “from a resource or staffing shortage.”
That exemption tracks with guidance around protective equipment from the Centers of Medicare & Medicaid Services (CMS), which has indicated that it will not punish providers for infection-control issues caused by a lack of adequate supplies. That said, providers will still be on the hook for improper use of supplies such as they are available; the first round of COVID-19 inspections found that 36% of facilities were not following proper hand-washing protocols, while 25% did not demonstrate proper use of personal protective equipment (PPE)
Illinois addressed this issue through an April 1 executive order from Gov. J.B. Pritzker, with a similar stipulation regarding gross negligence or willful misconduct; it covers health care facilities, professionals, and volunteers. Michigan’s executive order, issued March 29, protects hospitals and health care workers from liability for taking necessary steps to protect Michigan residents in an emergency, according to a March 29 release.
Other states that used executive orders to address the issue of legal immunity for health care providers include New Jersey and Iowa, according to an April 13 e-mail from Lisa Sanders, a spokeswoman for LeadingAge, which represents non-profit senior housing and care providers.
A letter from the association to Department of Health and Human Services (HHS) Secretary Alex Azar sought clarification on the legal immunity for health care facilities, especially SNFs and assisted living facilities, under the Public Readiness and Emergency Preparedness (PREP) Act and Azar’s March 17 Notice of Declaration under the PREP Act for medical countermeasures against COVID-19, she noted.
The letter, dated March 25, sought “an express confirmation” that SNFs and ALFs are considered “covered persons” under both the act and the declaration, as well as a clarification that immunity under both the act and the declaration would extend to circumstances where “covered countermeasures are either scarce or unavailable.”
That issue is particularly important given the shortage of tests and PPE, as well as shortfalls in drugs, respirators, and ventilators, LeadingAge argued in the letter.
“In order to support SNFs and ALFs providing treatment to elderly and at-risk individuals afflicted by COVID-19, it is essential that they be shielded from liability and costly litigation due to shortages beyond their control,” the letter said.
There are other states that have laws providing immunity for providers when the governor declares an emergency; Sanders identified these as Indiana, Louisiana, Maryland, and Virginia in the April 13 email.
LeadingAge Connecticut, the Connecticut Association of Health Care Facilities (CAHCF), and the Connecticut Association for Healthcare at Home jointly sent a letter to Robert Clark, the general counsel of the office of the governor, requesting clarifying provisions to ensure that immunity language submitted by the Connecticut Hospital Association could include their respective fields; the letter, provided by Sanders, was undated.
SNF associations in other states have requested immunity for care provided during the COVID-19 emergency; the Florida Health Care Association sent a letter to Gov. Ron DeSantis on April 3 requesting liability immunity for “any health care facility or health care professional” providing services in the emergency and in good faith.
A spokeswoman for the FHCA said that as of April 17, there was no response from DeSantis’ office on the issue.
In Washington and Pennsylvania, provider associations have also requested legal immunity as they battle COVID-19. In both cases, the letters mentioned shortages of PPE, and in the case of the Washington state letter, the bevy of providers writing cited the shortage of PPE as an area of potential civil liability – even though the equipment is being reused and conserved in accordance with guidelines from the CDC and the Washington State Department of Health.
In an April 15 statement, the American Health Care Association (AHCA) — which represents thousands of nursing homes and assisted living providers — pointed out that the recent coronavirus stimulus bill does include some additional federal liability protection for volunteer health care workers during the COVID-19 emergency. It also pointed out the PREP Act immunity protections, noting that Secretary Azar issued a letter in March calling on state governors to protect health care professionals from medical liability.
But those measures do not go far enough to provide sufficient legal protection, AHCA added.
“We encourage every state to extend sovereign immunity provisions to the long-term care providers and other health care sectors associated with care provided during the COVID-19 pandemic,” the association said.
Perhaps an example of the different nuances is highlighted by a recent executive order from Georgia Gov. Brian Kemp, which would limit the liability of employees, staff, and contractors at health care institutions and medical facilities during the COVID-19 emergency, according to a client alert from the law firm Arnall Golden Gregory (AGG) published on April 16.
While this order, like the others, excludes liability immunity for damage or injury caused by willful misconduct, gross negligence, or bad faith, it is notable in that it does not restrict the protection to COVID-19-related treatment or care, AGG noted.
It also does not affirmatively protect the legal entity providing the health care service, though it does protect the staff, Hedy Rubinger, one of the authors of the alert and a partner at AGG, told Skilled Nursing News in an April 16 interview.
“It’s maybe implied, but the way it’s drafted, it is unclear as to whether it provides protection to the legal entity that holds the license, whether that be a SNF, an ALF, a hospital,” she explained.
That makes it essential for SNFs to document every step they take in providing care if it deviates in any way from the standard practice — as well the reasons for doing so, according to AGG.
Another reason that documentation is so crucial is the fluidity of the guidance SNFs need to follow, Rubinger said. Keeping contemporaneous documents of what they do and why can help SNFs when they — or another party — is looking back at what happened in March through the lens of what’s now known April, she said.
Some examples of practices that should be documented include the SNF’s optimization or redistribution of staffing, isolation measures for residents who don’t have COVID-19, the use of cloth masks, and the optimization of PPE, Rubinger told SNN in a follow-up email on April 16.
PPE is a particularly crucial area. As providers try address staffing challenges and shortages of masks and gowns, they need to be prepared for those challenges to feature prominently in future litigation, as Christy Tosh Crider, chair of the health care litigation group at the law firm Baker Donelson, noted on a recent webinar.
Rubinger also pointed to securing PPE as an example, highlighting it as a key area of documentation — and one that could get easily overlooked as the number of COVID-19 cases in long-term care facilities continues to mount.
“We’ve been trying to get them to keep records, also, to really document [the difficulty] and what they’re doing in terms of outreach for COVID testing, PPE,” Rubinger explained. “In most of our clients, it’s all-hands-on-deck trying to work within the supply chain. And when the president of a company is working on that, it’s not necessarily documented. They’re not typically documenting what they’re working on — they’re just doing.”