By Fred Geilfuss, Larry Vernaglia and Olivia King

Law360 (June 16, 2020, 5:59 PM EDT )

Fred Geilfuss

Larry Vernaglia

Olivia King

COVID-19 has hit long-term care facilities very hard.

Every day brings reports of lethal outbreaks in such facilities and recent data released by the Centers for Medicare & Medicaid Services reveal that Medicare certified nursing homes have experienced more than 60,000 confirmed COVID-19 cases and nearly 26,000 deaths. Deaths related to COVID-19 in long-term care facilities — which includes nursing facilities, assisted living facilities, adult care centers, intermediate care facilities and other long-term care facilities — account for approximately 43% of all COVID-19 deaths in the U.S.

Given what is known about COVID-19, perhaps that result should not be surprising. Long-term care facilities have many elderly residents living in close proximity to each other and a good number of residents have comorbidities, behavioral health or cognitive impairments, or other health risk factors that make them particularly vulnerable to both infection and developing serious morbidity or mortality from the virus.

The virus has not discriminated among facilities. It has caused serious issues in facilities that have had a history of high quality care with limited reported deficiencies as well as facilities that have experienced survey issues. Public and private operated facilities have been affected, as have those serving predominantly well-off and less well-off populations.

Simultaneously, the industry struggles mightily under financial burdens never seen before. Maintaining a healthy workforce, managing admissions to accommodate the needs of the community without jeopardizing the health of current residents, with dramatically increased costs for supplies such as personal protective equipment have severely taxed the long-term care industry which was already facing significant reimbursement gaps from Medicaid and other payors.

Compounding this pain, the Trump administration recently signaled stepped-up enforcement against this suffering industry. On June 1, CMS announced strengthened enforcement actions against nursing homes based on violations of infection control practices. The administration's enhanced enforcement contrasts sharply with the wave of protections states have enacted to limit long-term care facilities' liability during the public health emergency.

While the COVID-19 era brings such new challenges and increasing risks to patients and providers alike, the potential for lawsuits and liability for long-term care facilities has always been present. For instance, challenges at securing adequate insurance coverage has been a real concern to the industry for decades, particularly in states with aggressive plaintiffs' bars, like Florida.

Even before the height of the pandemic, the U.S. Department of Justice had indicated that skilled nursing facilities will be a target area under the False Claims Act in 2020, and announced a renewed focus on the quality of care provided in such facilities.

Due to concerns that fear of reprisal may discourage health care practitioners and institutions, including long-term care facilities, from accepting new COVID-19 patients, states and the federal government have taken steps to shield providers from liability for injuries experienced relating to COVID-19 and facilities' responses thereto.

The federal Public Readiness and Emergency Preparedness Act put in place some protections, and the Coronavirus Aid, Relief, and Economic Security Act limits state and federal liability for volunteer health care professionals. Immunity for COVID-19 activities has received attention from federal lawmakers.

By one report, at least 20 states have enacted liability waivers applicable to long-term care facilities. However, with all grants of immunity, these waivers protect providers by removing the option for residents and their families to obtain redress for certain occurrences; and patient advocates have voiced concern that immunity may shield bad actors from rightful discipline.

Moreover, some patient advocates argue that immunity may remove the incentive for long-term care facilities to take preventative measures, including employee testing and ensuring sufficient supply of PPE.

Nevertheless, while there may be challenges to the effectiveness of waivers that eliminate causes of action, liability waivers have been a way to recognize the challenges presented to such facilities by COVID-19, including shortages of health care staff and equipment, and waivers encourage such facilities to continue providing services in circumstances where problems are difficult to avoid.   

A review of several waivers reveals that the conditions of immunity are largely similar, with states typically granting immunity from liability to facilities (1) providing care pursuant to the COVID-19 pandemic, (2) in good faith, (3) during the period of the COVID-19 state of emergency, and (4) absent willful misconduct and gross negligence.

In effect, the COVID-19 waivers will rarely protect facilities from conduct occurring prior to the COVID-19 pandemic or from deficiencies that began prior to the pandemic but continued after a state of emergency was declared. A preexisting lack of sufficient personnel or equipment may be an example of conduct to which such waivers would not apply. Additionally, state waivers may not block action under federal law, including the False Claims Act.

Despite their similarities, state waivers differ in several important areas, and interested parties should consider the following factors when analyzing liability waivers in their states:

• Whether waivers shield facilities from civil and criminal liability;

• The standards of conduct that are not immune;

• Whether immunity extends to nonresidents of a facility;

• Whether immunity extends to claims that are discovered after the conclusion of the public health emergency; and

• Whether waivers protect against private plaintiff actions.

Here are some examples of waivers certain states have enacted.

Arizona

Executive Order 2020-27 shields nursing care institutions and assisted living facilities from civil liability when providing care in support of the state's COVID-19 public health emergency declaration and acting in good faith. However, the executive order does not extend to actions that constitute gross negligence or reckless or willful misconduct. Additionally, the executive order indicates that provision of care by a health care professional, volunteer or other individual, while under the influence of alcohol or intoxicating drugs would not be subject to immunity.

Interestingly, the executive order specifically exempts institutions from liability for triage decisions based on state approved protocols. However, facilities may have their own triage policies in place, and the executive order may not protect providers in long-term care facilities acting in line with the facility's policy if that policy does not mirror the state protocol.

Connecticut

The Connecticut governor granted immunity from civil liability to health care facilities, including nursing homes, pursuant to Executive Order 7U.  Health care facility professionals are immune from liability only if they acted in good faith and without malice, gross negligence or willful misconduct, and the actions would not otherwise constitute a crime, fraud or a false claim.

The executive order indicates that immunity includes "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."

While, the waiver does not clarify what constitutes a resource, this provision recognizes that it may be difficult to identify any services provided during the pandemic that are not impacted by equipment and personnel shortages resulting from COVID-19 disruptions. The waiver shields facilities from actions taking place during the COVID-19 public health emergency, which began March 10.

Illinois

Executive Order 2020-19 grants nursing homes and skilled and intermediate long-term care facilities immunity from civil liability "for any injury or death alleged to have been caused by any act or omission by the Health Care Facility, which injury or death occurred at a time when [the] Health Care Facility was engaged in the course of rendering assistance to the State by providing health care services in response to the COVID-19 outbreak."

The language of the executive order is potentially broad and could shield long-term care facilities from liability for injuries or deaths unrelated to COVID-19 patient care so long as the facility was providing some amount of service in response to COVID-19. It is not clear how the language "rendering assistance to the State" will be interpreted.

This executive order does not extend immunity to injuries or deaths caused by gross negligence or willful misconduct, which is potentially a high bar to overcome in potential legal action against a long-term care facility.

Massachusetts

Massachusetts passed legislation protecting health care professionals and health care facilities, including skilled nursing facilities and assisted living residences, from civil liability during the COVID-19 pandemic. These protections extend to providers, including providers licensed by the board of nursing home administrators and health care facility administrators, as well as executives, board members or supervisors responsible for directing the facility or its personnel.

However, providers and facilities are immune from liability only during the period of the COVID-19 pandemic beginning March 10 when "providing care or treatment of [an] individual was impacted by the health care facility or health care professional's decisions or activities in response to treatment conditions resulting from the COVID-19 outbreak or COVID-19 emergency rules." Immunity does not apply to actions caused by gross negligence, recklessness or conduct with an intent to harm or discriminate.

Michigan

As discussed previously, Executive Order 2020-30 grants nursing homes and homes for the aged that "[provide] medical services in support of th[e] state's response to the COVID-19 pandemic" immunity from liability for "an injury sustained by a person by reason of those services regardless of how or under what circumstances or by what cause those injuries are sustained."

This language is broad, and could potentially encompass care rendered during the public health emergency but unrelated to COVID-19. Immunity does not extend to acts that constitute willful or gross negligence.

New Jersey

Executive Order 112 grants long-term care and skilled nursing facilities immunity from civil liability for acts or omissions in support of the state's COVID-19 response when undertaken in good faith by employees, agents or officers. Immunity does not extend to acts that constitute a crime, actual fraud, actual malice, gross negligence or willful misconduct.

New York

The Emergency or Disaster Treatment Protection Act, Article 30-D of Chapter 56 of the Laws of 2020, grants nursing homes, hospitals, other Article 28 facilities, as well as health care professionals immunity from civil and criminal liability when arranging for or providing care on or after March 7, pursuant to a COVID-19 emergency rule and acting in good faith.

The act shields facilities from liability when "treatment of [an] individual is impacted by the health care facility or health care professional's decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state's directives." Immunity does not apply to acts that constitute willful or intentional criminal misconduct, gross negligence, reckless misconduct or intentional infliction of harm.

Importantly, the act grants immunity to nursing home "administrator[s], executive[s], supervisor[s], board member[s], trustee[s] [and] other person[s] responsible for directing, supervising, or managing" the nursing home.

Some have taken issue with the protections the act grants to nursing homes and other facilities, and to executives and other professionals, and there also have been disputes about the wisdom of certain executive orders and directives from the New York State Department of Health regarding hospital discharges of COVID-19 patients to nursing homes. On May 11, Assembly Member Ron Kim introduced bill A10427 to repeal the immunity provision of the act, though the bill has not progressed through the Assembly.

Conclusion

As the COVID-19 pandemic continues to take a toll on long-term care facilities, the issue of liability waivers is gaining increasing attention and health care industry groups are asking governors and state lawmakers to grant immunity to nursing homes and long-term care facilities. One report indicates that trade groups and lobbyists representing nursing homes and long-term care facilities have requested immunity in at least ten states that do not already have waivers in place.

It is likely that each of the above-referenced waivers will lead to litigation as interpretations will differ on key terms and applicability to specific situations, but the waivers provide important defenses for long-term care facilities providing critical care to a vulnerable population in the pandemic crisis.

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Fred Geilfuss and Larry Vernaglia are partners, and Olivia King is an associate, at Foley & Lardner LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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