As the U.S. heads toward the possible end of the ongoing public health emergency, state officials are reexamining the liability protections that have been extended to many healthcare providers throughout the COVID-19 era.
Drastically different takes in two states demonstrate just how complex operating amid ongoing threats could become for skilled nursing providers in the months ahead. That’s when health officials predict COVID-19 will evolve from a pandemic into an endemic virus.
In Florida this week, the state senate is expected to consider a proposal to extend COVID-19 legal protections for healthcare providers. A law already on the books shields healthcare providers and some other businesses from legal liability related to the transmission of COVID-19 and the treatment of people with COVID-19. It’s set to expire March 29.
The new bill focuses on healthcare providers specifically and would extend legal protections until June 1, 2023.
In that state, plaintiffs seeking legal redress in COVID-19 cases involving healthcare settings such as nursing homes would have to prove gross negligence or intentional misconduct, according to Health News Florida.
Meanwhile in New York, where state officials began peeling back liability protections in August of 2020, Assemblyman Ron Kim (D-Flushing) has proposed reversing remaining policies that limit the liability of nursing homes. He also would amend public health law to hold nursing homes liable for negligence resulting in the wrongful death of residents during a public health emergency through 2035.
Kim’s legislation would change state civil practice to allow claims in personal injury or death to be filed for up to two years after the bill passes. Introduced on Nov. 17, the proposal had no co-sponsors at the deadline for this article.
The Justice for Nursing Home Victims act also includes a provision for a $4 billion compensation fund for civil claims arising from personal injuries or the death of nursing home residents in New York due to COVID-19.
At the height of the pandemic, some 38 states introduced emergency orders or enacted laws to shield healthcare companies and providers from liability for COVID-19 related injuries and deaths, according to National Consumer Voice.
In addition, the federal Public Readiness and Emergency Preparedness Act, or PREP Act, provides an additional layer of protection through Oct. 1, 2024, or the final day of the emergency declaration, whichever comes first.
But states now appear split on what to do about liability protections. While some have extended or expanded which entities coverage applies to, others have responded to consumer sentiment and moved to strip away protections.
“This bill will attempt to redress the wrongdoings by the state government in granting legal immunity to nursing homes to begin with,” Kim wrote in notes accompanying his legislation. “Equally important, this bill also puts forth regulations to disallow any future attempts at constraining conditions for liability for nursing homes, to ensure that injustices of this nature cannot happen on a massive scale ever again in this state.”