Limitations to Assisted Living and Nursing Home Liability in the Wake of COVID-19 and Best Practices to Avoid and Defend Against Claims
Fennemore Craig Client Alert
Limitations to Assisted Living and Nursing Home Liability in the Wake of COVID-19 and Best Practices to Avoid and Defend Against Claims
COVID-19 poses numerous challenges when it comes to protecting vulnerable nursing home and assisted living populations. Regulations are continually changing. Access to testing and PPE is limited, even for the most diligent and well-connected healthcare professionals. Not to mention, elderly populations are already at a heightened risk of catching and having serious complications associated with COVID-19.
With these considerations in mind, on April 9, 2020, Governor Doug Ducey issued Executive Order 2020-27 (“EO 2020-27”). Dubbed the “Good Samaritan” Order, EO 2020-27 aims to shield various frontline healthcare workers responding to the COVID-19 outbreak from liability. Although much has been reported about the impact this order will have on doctors and nurses practicing medicine outside of their typical scope of practice (i.e. a cardiologist assisting in an emergency room), much less attention has been paid to the impact the order will have on nursing home and assisted living facility caregivers.
Who is covered by EO 2020-27?
- Licensed healthcare professionals and volunteer health professionals registered and recruited through the Arizona Emergency System for the Advance Registration of Volunteer Health Professionals (AZ-ESAR-VHP).This includes doctors, nurses, pharmacists, physician assistants, and respiratory therapists. Some healthcare workers that treat nursing home and assisted living facility residents may fall under these protections, while others likely do not. See Section 1.
- Arizona Emergency Medical Care Technicians. See Section 2.
- Arizona healthcare professionals, healthcare institutions, treatment facilities and other sites designated by the Arizona Department of Health Services to aid in the state’s response to the COVID-19 public health emergency. “Healthcare institutions” are defined under Title 36, Chapter 4, and include, but are not limited to, nursing homes, assisted living facilities and other residential care facilities. See Section 3.
What does EO 2020-27 do?
The order outlines that individuals falling within Sections 1 and 2 of EO 202-27 are presumed to have acted in good faith and are immune from civil liability in connection with providing medical services in support of the State’s public health emergency for COVID-19. Based on this broad language, the order does not expressly limit immunity solely to those individuals treating known COVID-19 patients.
Whereas, Section 3 provides that healthcare providers and facilities, including nursing homes and assisted living facilities, are immune from liability for triage decisions made in the course of providing medical services based on good faith reliance on mandatory or voluntary state-approved protocols under the public health emergency declaration for COVID-19.
Importantly, the order does NOT provide immunity from criminal liability nor does it extend to claims of gross negligence or reckless or willful misconduct.
How long does the order last?
The order is in place until June 30, 2020, unless otherwise extended. However, immunity granted for actions taken during the time EO 2020-27 is in place will survive its expiration. For example, if a healthcare professional provided care in May 2020, before the expiration of EO 2020-27, he or she will continue to be immune even if a claim is not brought until December 2020.
Why is this necessary?
Healthcare workers have raised concerns about liability in the time of COVID-19. Many of them have limited access to PPE as well as testing. That lack of access may make illness or death more likely. Other healthcare workers have volunteered to assist with treating COVID-19 positive or unknown patients outside the scope of their normal practice. Under typical circumstances, that would make them vulnerable to claims for negligence and other types of malpractice. During the pandemic, the Governor, along with other public health officials, have determined that the primary goal needs to be ensuring that there are a sufficient number of healthcare providers available to treat sick patients. Because the threat of liability could discourage healthcare professionals from agreeing to help, the decision has been made to protect them from any potential claim.
Is there any precedent for this?
Yes. In fact a similar legal concept already exists in Arizona, as well as most states. Good Samaritan laws offer legal protection to people who give reasonable assistance to others who are, or who are believed to be, injured, ill, in peril, or otherwise incapacitated. The idea is to encourage members of the community to aid those in need without fear of being sued if their efforts are not successful or were done incorrectly.
What are other states doing?
The approach varies state-by-state. Some states, including New York, have extended immunity to civil, as well as some criminal claims. Others have a more limited scope, similar to Arizona’s order, such as Illinois. The orders also vary, in that some apply expressly to nursing home and assisted living facilities, while others do not. Some apply to facilities as well as individual healthcare providers, while others limit immunity to the facility itself. Many states have not yet acted or entered any order on this subject, but it is likely that additional executive orders will be forthcoming.
What are some “best practices” that assisted living and nursing home facilities can follow to further insulate themselves from liability?
EO 2020-27 does not protect nursing homes or assisted living facilities from federal claims or actions such as HIPAA investigations. It merely seeks to shield nursing homes and assisted living facilities from state court lawsuits alleging negligence. Most state court lawsuits alleging gross negligence and/or willful misconduct will still be able to go forward.
While there is no way to prevent litigation, implementing certain best practices may provide you with a defense should a lawsuit arrive. although we do not know how narrowly or broadly a court would interpret EO 2020-27, having documented efforts to prevent or handle a COVID-19 infection will be helpful. In order to defend a lawsuit, you may need to show that your facility has met the standard of care or acted as a reasonable person would given the circumstances. In a novel situation like the COVID-19 pandemic, CDC, CMS and Arizona Department of Health Services (AzDHS) guidance is instructive.
Nursing homes and assisted living facilities should always keep good records. Litigation can take years to present itself so you should not rely on memory. Make sure that you fully and completely document any measures intended to inhibit COVID-19 infection and spread. Medical records and resident files should be kept up to date and include details on what services were provided in a legible form.
First, be sure to follow all recommended guidance from the CDC, CMS, and AzDHS. Pursuant to Executive Order 2020-07, all skilled nursing facilities, intermediate care facilities and assisted living facilities must implement visitor controls and screen staff, visitors, vendors and contractors before they enter. These facilities should also set a disinfectant schedule and establish social distancing policies. Additional AzDHS guidance is available here.
Of course, information changes quickly, so you may wish to sign up for email blasts or set a Google alert. Once new information has been put out, do your best to implement it and document your efforts.
Second, establish a manner to have COVID-19 testing available to any staff or residents who need or request it. Private labs may be a good source as testing is expanding. Make sure you obtain consent for testing and have that consent in writing. In addition, facilities should check the temperatures of all staff members before each shift. Use a low-contact method to take temperatures and do so in a private area with staff wearing PPE. Record your findings in a secure file that is kept separately from other employment files. Make sure any staff member who is not feeling well or exhibits a fever either stays home or is sent home.
Third, have a COVID-19 plan in place. The CDC has provided a checklist you can adapt: CDC Preparedness Checklist.
Make sure that your plan ensures rapid and safe triage if someone is suspected of having COVID-19. Isolate patients with suspected infections. Require all triage personnel who will be taking vitals and assessing patients to wear a respirator (or facemask if respirators are not available), eye protection, and gloves for the primary evaluation of all patients presenting for care until COVID-19 is deemed unlikely. In addition, all facilities should have a COVID-19-specific infection control plan in place and make sure it is followed. CMS has a self-assessment tool that is quite helpful.
Likewise, facilities should have a plan in place to send residents to a more acute facility if they need it. A resident with a positive test for COVID-19 or with fever or respiratory symptoms does not necessarily need to be hospitalized. If a resident requires IV fluids, oxygen and other treatments due to their respiratory symptoms, however, hospitalization or a more acute level of care may be necessary. Medicare has waived certain requirements such that it will allow you to switch the person over to Medicare Part A without a 3-day skilled nursing facility stay. Accordingly, you will also need to have a detailed readmission plan to accept residents who may have been hospitalized back into your facility. AzDHS has a guidance memo on point.
Further, your plans should include guidance for any scenario in which you may accept a resident who is positive for COVID-19 into your facility. In that case, make sure that you follow all transmission-based precautions.
Fourth, facilities should cohort residents based on their COVID-19 status. Those who are COVID-19 positive should be situated separately and staffed by different teams. CMS is temporarily waiving requirements in 42 CFR 483.10(c)(5); 483.15(c)(3), (c)(4)(ii), (c)(5)(i) and (iv), (c)(9), and (d); and § 483.21(a)(1)(i), (a)(2)(i), and (b) (2)(i) to allow a long term care facility to transfer or discharge residents to another long term care facility solely for the purpose of cohorting patients in certain situations. This can help promote the separation of sick residents and protect the remaining residents from infection. Likewise, CMS is waiving the requirements in 42 CFR 483.10(e)(5), (6), and (7) solely for the purposes of grouping or cohorting residents with respiratory illness symptoms and/or residents with a confirmed diagnosis of COVID-19, and separating them from residents who are asymptomatic or tested negative for COVID-19. This action waives a facility’s requirements under 42 CFR 483.10 to provide for a resident to share a room with his or her roommate of choice in certain circumstances.
In addition, nursing home and assisted living facilities should implement and document the following efforts:
- Continue to implement a prohibition on visitors unless there is an end-of-life situation.
- Educate your staff on how COVID-19 is transmitted and the associated signs and symptoms. Make sure you review training materials regularly and update them as new information emerges. Recent nursing home and assisted living facility outbreaks have shown that residents with COVID-19 may not exhibit the expected symptoms.
- Continue to implement social distancing and close common areas.
- Educate staff on the proper use of PPE and make sure PPE is used and maintained appropriately. Both the CDC and OSHA have helpful videos about how to use and maintain PPE.
- Cloth face-coverings are not considered PPE. Healthcare providers and those in regular resident contact should be provided with surgical masks.
- Cloth face-coverings may be appropriate for visitors and residents.
- If a resident needs healthcare outside the facility, see if telehealth or another no-contact method of service is available.
- Make sure that staff members and residents are educated on the importance of respiratory etiquette and hand-washing. Make sure that hand washing supplies and hand sanitizer are available. Post information in prominent areas encouraging proper hygiene.
- Continue with increased sanitization and disinfection, particularly in high touch areas. The EPA has a list of products that are recommended.
- If there is a COVID-19 case, make the appropriate reporting to your local health department as well as the CDC. Residents, and their families and personal representative, should also be notified.
- You need to provide weekly updates for residents, their families and personal representatives, as to what you are doing to prevent and manage COVID-19 within your facility.
- Review how staff interacts with vendors/contractors and make plans that minimize contact.
- Make sure you have a communication plan in place. This includes how you will communicate with residents and staff as well as families, representatives and even the media. The plan should take into account HIPAA, which protects resident health information and the ADA, which protects staff health information. You should endeavor to provide accurate and consistent information. Providing a script for staff is often helpful.
Implementing as many of these best practices as possible will help you if you face a COVID-19 related lawsuit. You can couple these measures with the civil immunity afforded by EO 2020-27 to make the strongest possible showing.