Coronavirus-Related Legal Immunity for Nursing Homes

Coronavirus-Related Legal Immunity for Nursing Homes

As the COVID-19 pandemic continues to spread through the United States, nursing homes and skilled nursing facilities have become hot zones of infection and fatality. Many factors contribute to this problem, including the concentration of high risk individuals (over 65 years old and with chronic medical conditions), communal living arrangements, and frequent physical contact between residents and staff. While facilities are working to implement policies to reduce the spread of COVID-19, litigation related to infection and fatalities is inevitable. Potential claims include negligent infection control practices, failure to diagnosis or properly treat infected residents, inadequate staffing, and failure to properly notify family members of infections within a facility. But federal and state-specific protections have been invoked or enacted to theoretically provide immunity to nursing homes and skilled nursing facilities with regard to these claims.

On a federal level, on March 10, 2020, the Secretary of Health and Human Services issued a Declaration under the Public Readiness and Emergency Preparedness Act (PREP Act) related to COVID-19 countermeasures. HHS has also issued two advisory opinions clarifying to whom and what PREP Act immunity applies in the context of the pandemic. In relevant part, the Declaration and advisory opinions include the following:

  • immunity is limited to claims for personal injury and damage to property;
  • immunity extends to certain individuals and entities against any claim of loss caused by, arising out of, relating to, or resulting from the manufacture, distribution, administration, or use of any drug, device, or biological product that meets specified approval requirements and is used to diagnose, mitigate, prevent, treat, cure, or limit the harm of COVID-19; and
  • immunity extends to licensed health professionals or other individuals authorized to prescribe, administer, or dispense the product.

In short, the language appears to provide immunity to nursing home and skilled nursing facility health care providers for use of approved products, such as COVID-19 tests, personal protective equipment, and respiratory devices, in response to COVID-19. However, this immunity does not leave residents who have experienced injury or death related to COVID-19 without recourse, as residents or their estates may seek compensation from the Covered Countermeasures Process Fund.

On a state level, immunity legislation varies widely. Some states, such as Kentucky, have enacted emergency immunity laws directly in response to the pandemic. Kentucky Senate Bill 150 provides immunity to health care providers for ordinary negligence related to the care and treatment of COVID-19. As of the date this article was published, Ohio has passed separate immunity proposals in the House (HB 606) and Senate (SB 308), and it remains uncertain when a final bill will be passed and what protections it will provide. In other states, it is anticipated that existing disaster and emergency legislation will extend to provide protections to health care providers.

While the legislation detailed above appears to provide some protections to nursing homes and skilled nursing facilities, the application of this legislation has, for the most part, been untested and will continue to unfold over the coming months. If you have questions related to these immunity issues, or other claims against nursing homes and skilled nursing facilities, please contact Michelle A. Cheek or Kimberly A. Kyle.