Providers won’t be immune from federal investigations that arise from bad outcomes during the coronavirus pandemic. This will be the case even as 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,” Brandon Essig, a partner in the white-collar criminal defense and corporate investigations and healthcare practices at Lightfoot, Franklin & White LLC, in Birmingham, AL, told
McKnight’s.
Providers in numerous states are seeking protection from coronavirus-related civil lawsuits they could be facing due to the pandemic. 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. Many of the orders are retroactive to the beginning of March, according to Bloomberg law.
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 news report noted.
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 said.
