Governor Northam recently enacted Executive Order 60 (EO 60) granting limited immunity to health care providers responding to the COVID-19 disaster. The immunity covers claims of injury or wrongful death but does not cover gross negligence or willful misconduct.
Gross negligence is indifference to another and utter disregard of prudence constituting a complete neglect of the safety of such other person. Willful misconduct is action taken in conscious disregard of another’s rights or with reckless indifference to the known injurious consequences. Conduct that would rise to that level of negligence can be failure or refusal to comply with the new guidelines or forcing COVID-19 symptomatic employees to work.EO 60 expands the application of two sections of the Virginia Code dealing with immunity for health care providers. Virginia Code §8.01-225-02, pertinent to long term care facilities (LTC), addresses immunity in disasters resulting in limited resources that prevents delivery of the level of health care expected in the absence of the emergency. EO 60’s application is limited to the Virginia Code §8.01-581.1 definition of “health care providers,” which includes skilled nursing facilities, but not assisted and independent living facilities.
Skilled and assisted living facilities have been required to maintain infection control processes long before COVID-19 reared its ugly head. The Centers for Medicare and Medicaid Services (CMS) and Virginia Department of Health, regulating skilled nursing facilities (SNFs), and the Virginia Department of Social Services (DSS), regulating assisted living facilities (ALFs), have required long term care facilities to establish isolation, employee spread, hand hygiene, linen and equipment cleaning, use of PPE and reporting policies for over a decade.
With the upheaval in guidance for LTC facilities, infection control measures have taken on a new life.
Timeline of Changes to Guidelines
March 13, 2020
CMS instituted a no-visitors mandate with exceptions for end of life situations, health care workers, and regulatory surveyors. All group activities and communal dining were banned. Regulations on social distancing, hand-hygiene, pre-shift staff health screenings, resident health screenings, vendor outside drop-offs, signage identifying measures taken, and tracking staff moonlighting were implemented. Unavailability of PPE had to be out of the facility’s control and mitigation efforts had to be made to obtain PPE or use alternative measures. Liability for this requirement is covered by EO 60 for SNFs.
April 2, 2020
CMS mandated the following:
- Following CDC infection control guidelines,
- Symptom screening for every person entering the facility,
- Use of COVID-19 tests for new admissions,
- Facemasks on all staff and on residents when out of their rooms,
- Full PPE for care to COVID-19 positive residents,
- Full PPE if one transmission occurs in the facility,
- Residents covering their noses and mouths when staff are in their rooms, and
- Creating units for COVID-19 positive residents with separate staff for those units.
April 19, 2020
The reporting requirements were expanded. State and local health departments, residents, and responsible parties must receive reports of suspected or confirmed cases in staff and residents and reports of new symptoms in three or more residents or staff within 72 hours of each other. Residents and their representatives are also to receive weekly reports.
Although CMS requirements are dedicated to SNFs, DSS has encouraged ALFs to follow the new CMS regulations as well as the CDC guidelines.
Intel From the Plaintiff’s’ Bar
Plaintiffs’ attorneys are receiving daily calls from LTC residents’ families. The discussions are about telephones not being answered at the facilities, failure to inform them of COVID-19 prevention measures, how to discharge family members, and learning about positive cases in the media first. The primary concern involves failure to communicate, which his not covered by EO 60.
Plaintiffs’ attorneys shy away from infection cases, as cause of infection is difficult to prove. However, if a facility implemented the no-visitors policy in a timely manner, the cause of infection would probably be from staff entering the facility. Causation may not be difficult to prove in COVID-19 cases. For SNFs, a cause of action for failure to monitor staff symptoms is not covered by EO 60.
Plaintiffs’ attorneys inclined to litigate COVID-19 cases stated they would file cases for misrepresenting that the facility was taking measures when it was not, failing to monitor staff for infection, forcing symptomatic staff to work, and failure to follow guidelines. Of these types of lawsuits, EO 60 would probably not afford immunity for SNFs, with the exception of stating that the facility was taking certain measures and later learning that it could not due to limited resources and failure to follow guidelines due to limited resources. ALFs are prime targets for these lawsuits.
In sum, EO 60 is not a panacea because it only applies to skilled nursing facilities for limited causes of action. Best practices for all long term care facilities is to adhere strictly to the guidelines from CDC and CMS and to communicate with the families of their residents like never before.