Arizona Moves to Protect SNFs from Treatment Liabilities Amid Global Pandemic

Providers are grappling with how to provide care for a virus with a myriad of uncertainties still looming. Several states are moving to protect healthcare facilities from lawsuits related to coronavirus care, including Arizona.

The coronavirus is wreaking havoc on long-term care facilities where vulnerable populations live in close quarters, the virus has had a disproportionate effect on residents and staff. In response to the grim numbers, the Centers for Medicare and Medicaid Services (CMS) released guidelines aimed at reducing the impact of the virus on nursing homes. However, according to the Kaiser Family Foundation (KFF) , only recently were nursing homes federally required to report outbreaks and coronavirus-related deaths. The lag led to a disparity in data.

Efforts from the KFF to fill data gaps found that in 23 states publicly reporting death tolls, there have been 10,000 reported deaths related to the coronavirus in long-term care facilities accounting for a staggering 27% of virus deaths in those states.

CMS cracked down on facilities last week, saying skilled nursing facilities (SNFs) could face up to $1,000 in penalties per week for reporting violations in positive test results and virus-related deaths.

As the death toll in long-term facilities continues to rise, providers are left worrying about the livelihood of their business.

Gov. Doug Ducey signed a Good Samaritan executive order earlier this month to protect facilities by making it harder for families to sue them for treatment provided during a global pandemic. The order sets a higher bar for civil suits regarding coronavirus care, requiring “gross negligence or reckless or willful misconduct,” to make a case.

LeadingAge, an association comprised of more than 5,600 non-profits addressed Health and Human Services Secretary Alex Azar in a March letter, seeking confirmation that both SNFs and assisted living facilities (ALFs) are classified as “covered persons” under the Public Readiness and Emergency Preparedness Act.

The letter read, in part:

In order to support SNFs and ALFs providing treatment to elderly and at-risk individuals afflicted by COVID-19, it is essential that they be shielded from liability and costly litigation due to shortages beyond their control.

Liability protections, however, and the extent of their application vary from state to state. States with laws providing immunity for providers offering care amid a governor-declared national emergency include Indiana, Louisiana, Maryland, and Virginia.

An April 15 statement from the American Health Care Association highlights federal liability protections for volunteer healthcare workers outlined in the $2 trillion stimulus bill passed by Congress just weeks prior. Secretary Azar called on state governors to protect healthcare professionals from liabilities, but none of the measures mentioned in the statement provide substantial legal protection should a suit arise. The association said,

We encourage every state to extend sovereign immunity provisions to the long-term care providers and other health care sectors associated with care provided during the COVID-19 pandemic.

Find the letter from Leading Age here.

Also take a look at the Kaiser Family Foundation’s research and this Skilled Nursing News piece for more on what state’s are doing to protect nursing homes.

For more on Gov. Ducey’s executive order, check out The Arizona Republic.