Senior Living Providers Face Patchwork of State Liability Protections

As negotiations to grant long-term care providers immunity from liability lawsuits stemming from the coronavirus pandemic continue on the federal level, law firm Seyfarth Shaw recently released a survey detailing liability immunity protections on the state level.

The survey lists states that enacted immunity protections via executive action, states which are in the process of granting immunity through legislation, and those which have not taken any action toward granting liability protections, Partner Chris DeMeo told Senior Housing News. Based in Houston, he is a member of the firm’s corporate practice arm and specializes in issues affecting hospitals, physician groups, pharmacies and post-acute providers.

Seyfarth Shaw compiled the survey as a service to those clients, as well as clients in the long-term care spectrum that do not fall within the firm’s core health care practice such as nursing homes and assisted living facilities that were hit hard by the virus in its initial wave. The firm also wanted a resource available for larger providers operating in multiple states, so that there is an understanding in the differences in immunity between jurisdictions, and for smaller providers lacking the resources of their larger counterparts to know what legal protections are in place.

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The firm found a couple notable surprises compiling the survey. First, the actions taken among states that did grant immunity varied by state — reflecting the general slapdash approach by states to the pandemic, DeMeo told SHN.

Another surprise was the number of states with no liability immunity on the books. To date, 16 states either have not taken action or are relying on prior legislation as a reference for liability immunity. These states include Delaware, Florida, Idaho, Missouri, Nebraska, New Mexico, North Dakota, South Dakota and Texas.

“You would think it’s a relatively simple issue: you have a crisis and so let’s provide some protection for health care providers. But the way that each state went about it — whether it be through legislative action, through an executive order, or just relying on current law — was surprising,” he said.

DeMeo believes one reason for the lack of liability immunity in many states is the possibility of the subject becoming a political issue, as it has in New York. Governor Andrew Cuomo granted sweeping immunity to nursing homes across the Empire State in late March. Last week, the New York State Assembly passed legislation rolling back many aspects of Cuomo’s executive order, although immunity related to Covid-19 remains in place.

Virginia is another state where sweeping immunity is under review. A bill introduced to the state legislature on Monday would provide limited immunity to people in the absence of gross negligence or willful misconduct in a civil claim of coronavirus exposure or transmission.

This can all be superseded if the next federal coronavirus relief bill includes liability protections for long-term care providers, a topic which industry groups have lobbied for, for weeks. Several senior living executives — including Juniper Communities CEO Lynne Katzmann and LTC Properties (NYSE: LTC) CEO Wendy Simpson — have recently emphasized the importance of having liability protection, given the nature of the Covid-19 challenge.

If blanket immunity coverage is included and the federal bill is passed, expect challenges to it at the state level.

“If the federal law says, ‘all providers in all situations are immune,’ then there would be a conflict,” DeMeo said. “To the extent that a state law is consistent with the federal law, then there’s no preemption necessary.”

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