TALLAHASSEE – A trade group that represents nursing homes and other long-term care facilities is asking Republican Gov. Ron DeSantis for broad liability protections during the COVID-19 pandemic.
“We would support (added state) liability protections," Kristen Knapp, communication director for the Florida Health Care Association, told the Florida Record.
The Florida Bar News reported that in an April 3 letter, Emmett Reed, Health Care Association president, asked DeSantis for immunity from criminal and civil liability for any harm or damages alleged to have been sustained “as a result of an act or omission in the course of arranging for or providing health care services” during the COVID-19 public health emergency.
The immunity protection would not give protections from criminal misconduct or acts that would qualify as willful, intentional or gross negligence. But Reed added that anything that happens as a result of a staffing or resource shortage should not be considered negligence or misconduct.
Reed also asked that health care professionals and health care facilities dealing with the outbreak be granted sovereign immunity limits, the Bar News reported.
Officials at the Florida Agency for Healthcare Administration are reportedly considering the request.
Steve Watrel, a Jacksonville attorney, however, said broadening the scope of liability protections for care centers isn’t necessary, that federal rules of the Public Readiness and Emergency Preparedness, or PREP Act, launched in February by the U.S. Dept. of Health and Human Services, already grants such protections.
He said the act gives individuals and entities immunity from “claims of loss caused by or resulting from the manufacture, distribution, administration or use of medical countermeasures” caused by the COVID-19 pandemic.
“The federal Coronavirus Aid Relief and Economic Security, or CARES Act, a $2 trillion stimulus package that President Donald Trump signed March 27, also provides liability protections,” Watrel told the Bar News. “The federal statutes supersede state law.”
The Bar News report said Watrel expressed worry that staffers at nursing homes might misuse expanded pandemic liability protection to avoid responsibility for neglecting appropriate routine care, injuring patients with illness and disease.
“This whole idea of just prospective immunity, without even thinking it through, I just think is problematic because where do you draw the line?” Watrel said in the Bar report.
Watrel agreed that nursing home workers deserve praise for their response during the emergency and lauded DeSantis for not overreacting.
“They’re doing a hard job here,” Watrel said of the care centers. “Gov. DeSantis has done a wonderful job limiting access to the facilities, protecting the residents and not responding to a dog whistle for tort reform.”
However Knapp indicated the extraordinary nature of the COVID-19 outbreak has caused nursing and long-term care centers to change their standard mode of operations and liability protections are needed.
“We (care-centers) were not a priority for PPE’s (protective masks and gear),” she said. “We were also getting conflicting guidance from the federal government and the state. Care givers are having to give non-traditional care.”
As an example Knapp said elderly care center residents now have to be fed in their rooms with the doors shut and the communal dining of the past is prohibited.
“Care givers are providing care that is non-traditional,” she said. “Workers should be able to provide care and not have to worry about the threat of lawsuits.”