This article is sponsored by Willis Towers Watson. In this Voices interview, Senior Housing News sits down with Willis Towers Watson Senior Claims Consultant Tara Clayton to learn how the federal PREP Act may pertain to senior housing during COVID-19, areas to be aware of when reading a governor’s coronavirus-related executive order or state legislation and how to have targeted risk management discussions during the admissions process while maintaining a hospitable atmosphere.
Senior Housing News: You’ve spent your career in health care law and senior living. What attracted you to this area?
Tara Clayton: I was pre-med in undergrad, focused on clinical laboratory sciences. The plan was forensic pathologist. But, after some research projects with local medical examiners and several autopsies later, I thought, “How else can I be involved in health care but in a different setting?”
I discussed this with the medical examiner I worked with, whose husband had been an attorney, hated it, and went back to medical school. I thought, “Maybe I should do the opposite and look into health care law.” After law school, I began working for a firm defending senior housing operators in Kentucky, Ohio and Indiana against negligence and malpractice cases. I immediately fell in love with the industry. Now, in my new consulting role at Willis Towers Watson, I get to share strategic risk management ideas to continue helping this industry.
One legal element readers might be learning about more and more by the day is the 2005 Public Readiness and Emergency Preparedness Act, or PREP. How does it pertain to COVID-19, specifically in senior housing?
The PREP Act authorizes the Secretary of the Department of Health and Human Services (HHS) to issue a declaration providing immunity in certain situations during a public health emergency. It’s relevant here because Secretary (Alex) Azar issued a COVID-19 declaration on March 17th, with subsequent amendment, that states it is providing immunity for covered persons related to certain covered countermeasures. Importantly, on August 14th, Argentum and the American Seniors Housing Association (ASHA) received a response from the General Counsel’s office of HHS stating that senior living communities are included as “covered persons” under the PREP Act.
As COVID-19 claims are now being filed, insurers and defense counsel are reviewing those claims to see if the PREP Act immunity may apply. To help expedite review of this issue by the insurer or defense counsel, operators should be tracking the types of PPE utilized, efforts made to obtain PPE and other resources, and the operators overall response during the emergency.
What are the considerations that operators must make for potential PREP Act immunity?
Even though the Act has been in place since 2005, there are only a handful of cases that have analyzed how this immunity applied in that specific emergency situation. Each declaration and emergency should be looked at separately as some declarations are broader than others.
The documentation of efforts I just mentioned is helpful for the insurers and/or defense counsel to explore whether the PREP Act immunity might apply. This type of documentation is important documentation of the heroic efforts the operator undertook to protect the residents and staff during these unprecedented conditions. It also can help support the overall defense of the claim, painting the picture of the steps and actions taken and obstacles overcome in an environment of constantly changing — if not inconsistent — guidance, and lack of available resources for operators.
The PREP Act, of course, is federal, but operators must also monitor state laws. If an operator is in a state where there is a COVID-related immunity law, what should the operator look for in terms of the key words and phrases?
Senior living as an industry provides very different services than what is seen in a more acute care setting, like a hospital, or in a skilled nursing setting. The stated language of the executive order or state legislation may or may not include senior living, or it may not include the services provided by a senior living operator.
When a claim is presented, it will be important for operators, insurers and defense counsel to understand what the proffered protection is under that specific jurisdiction. For instance, in state laws, you’ll often see terms such as “health care provider,” but how is that term defined? Is it defined as an individual? Is it defined to include entities? And, which entities are included?
Sometimes the language itself is not clear, and other regulations, statutes or case law may need to be consulted to see how senior living is treated in that jurisdiction.
Further, look at what services, acts and omissions are covered within the scope of that immunity. For example, is it limited to “health care acts” or does it include broader services? Does the immunity cover the date of the act or omission in the claim. Not all executive orders or state legislation contain a retroactive provision, so timing may be important.
What are the most pressing areas of concern regarding lapsing protections?
State executive orders are not permanent. Some are connected in time to the declaration of the emergency, but others have to be renewed to continue to be effective. So while there may have been an executive order in place, you’ll need to see if that order was permitted to lapse, or see if subsequent legislation followed.
Is there a groundbreaking state for the operators to monitor?
As states start to reopen businesses, some, including those without prior protections, are passing legislation with broader immunity protections, including health care immunity. Recent examples of states with newly enacted laws to be reviewed for potential protections include Tennessee and Georgia. But just as we are seeing some states pass legislation, we are also seeing some states amend existing protections and/or allow protections to lapse, including New York.
Potential new federal immunity is another area to watch. The SAFE TO WORK Act, which Senate Republicans proposed on July 27th, contains provisions for certain liability and immunity protections for businesses, as well as a separate provision relating to health care provider liability limitations. While this is just a proposal, it will be important to monitor developments from D.C. on the topic of immunity throughout the next few weeks.
As senior housing begins welcoming outsiders more regularly in terms of visitors and vendors, how can they mitigate risk?
I think one of the biggest opportunities for risk management as visitors start returning to communities is for operators to continue robust communication with families and residents.
The senior living industry, throughout this pandemic, has done a phenomenal job of figuring out how to keep residents engaged and families updated through open communication, dialogue and disclosures. But as visitors start to return, it’s important to keep everyone — residents, visitors, staff — up to date about what’s happening in the community, including the current response and plan.
I stress communication because I’m seeing a common theme in the existing claims of allegations that the community failed to warn. Essentially, families in these claims are alleging, “If I had known this information I would have reacted differently.” Along with residents and families, it is important to educate visitors and vendors on community requirements and expectations before they enter the building. This communication, and its documentation, is an important piece to help mitigate future claims.
Lastly, how can senior housing operators continue to create a hospitable welcoming atmosphere for residents within an increasingly litigious environment?
Again, communication is crucial. It helps create a relationship with the community and the family so if a concern later arises, the family should feel comfortable coming to the community to discuss. Operators should consider disclosing specific risk-related areas of information during the admission process. I’m not talking about all the pretty “sales” information, but disclosing potential risks, including those risks associated with an admission during a pandemic.
It is important to have communication of the risk to allow an individual to make an informed decision about the action being taken, but deliver the content in a way that helps initiate and create the open and trusting communication I referenced earlier. This should create a hospitable and welcoming environment with honest discourse at the outset, but also set realistic expectations for the residency. The communication can be done through admission forms, videos, etc., but the important part is having a dialogue with the resident and family.
Editor’s note: This interview has been edited for length and clarity.
The information contained herein is not intended to constitute legal or other professional
advice and should not be relied upon in lieu of consultation with your own legal advisors. To learn more about how Willis Towers Watson can help your community manage the risk inherent in infection control, visit WillisTowersWatson.com.
The Voices series is a sponsored content program featuring leading executives discussing trends, topics, and more shaping their industry in a question-and-answer format. For more information on Voices, please contact [email protected].