Providers won’t be immune from potential federal investigations that arise from bad outcomes during the coronavirus pandemic, even though several states have agreed to protect them from future coronavirus-related civil lawsuits, a legal expert warned.
“[Immunity] may make federal claims based on the concept of medical necessity more difficult, but a state conferral of immunity is not a protection from any [Department of Justice] investigation or an investigation by another federal agency,” said Brandon Essig, a partner in the white-collar criminal defense and corporate investigations and healthcare practices at Lightfoot, Franklin & White LLC, in Birmingham, AL.
Providers in numerous states are seeking protection from coronavirus-related civil lawsuits they could be facing due to the pandemic.
Providers in Florida, for example, recently faced complaints after writing to the governor for absolution from any future lawsuits. In addition, New York, Illinois, New Jersey, Connecticut, Michigan and Arizona have issued executive orders that protect healthcare facilities, including nursing homes from being found civilly liable for COVID-19 patients who die or get injured while in their care, Bloomberg Law reported. Many of the orders are retroactive to the beginning of March.
Though many of them give providers immunity from potential civil suits that arise from bad outcomes during the coronavirus fight, facilities may still be held liable for gross negligence under the orders, the report noted.
“Long-term care workers and centers are on the frontline of this pandemic response and it is critical that states provide the necessary liability protection staff and providers need to provide care during this difficult time without fear of reprisal,” Mark Parkinson, president and CEO of the American Health Care Association, said in a statement to Bloomberg.
Essig explained that a state conferring immunity on a nursing home for tort liability “potentially has very little impact” on the ability of the federal government to pursue criminal investigations.
“The DOJ may make the policy decision here to defer to state authorities. However, the DOJ is not in any way bound by those decisions and can still pursue, for example, a fraudulent billing claim to CMS regardless of what the states do,” Essig told McKnight’s.
The decisions to protect providers from future suits hasn’t been received well by all. Resident advocates have balked at the calls for immunity, claiming that nursing homes would be given a pass.
“Providing blanket immunity to nursing homes for any kind of substandard care, abuse, or neglect is an extremely poor and dangerous idea anytime, and particularly so in regard to COVID-19,” Richard Mollot, executive director of the Long Term Care Community Coalition, told NPR.