Provider liability protections could get caught in partisan fight

Republicans and Democrats are divided over whether liability protections for businesses should be included in the next round of COVID-19 stimulus legislation, and legal immunity for healthcare providers could get caught in the middle.

Major healthcare provider lobbies have asked Congress to protect healthcare facilities, physicians and other clinicians from liability for care provided during the COVID-19 pandemic, as states have a patchwork of different policies. Republicans are calling for wide-ranging immunity for healthcare providers and other businesses in the next legislative package, but Democrats have so far opposed the idea.

Senate Majority Leader Mitch McConnell (R-Ky.) and House Minority Leader Kevin McCarthy (R-Calif.) said Friday they will not support Congress' next COVID-19 relief package unless it includes liability protections for businesses, including healthcare providers.

"Senate and House Republicans are united in our demand that healthcare workers, small businesses, and other Americans on the front lines of this fight must receive strong protections from frivolous lawsuits," McConnell and McCarthy said in a joint statement.

McConnell hasn't provided much detail on his proposal beyond telling reporters Tuesday that the legislation would be "narrowly crafted" and would not protect businesses from gross negligence.

Democratic leaders, are not enthusiastic about the idea. House Speaker Nancy Pelosi (D-Calif.) said on April 29 that Democrats would not support McConnell's business liability protections.

"At the time of this coronavirus challenge, especially now, we have every reason to protect our workers and our patients in all of this," Pelosi said in a recent press briefing. "So we would not be inclined to be supporting any immunity from liability."

Senate Minority Leader Chuck Schumer (D-N.Y.) said he hasn't seen details of McConnell's proposal, but that he shares concerns that workers may not be protected.

"I haven't seen the details of what he said, but is he saying that if owner tells a worker they have to work next to somebody who might have coronavirus without a mask or PPE, that that owner wouldn't be liable? That makes no sense," Schumer said on a call with reporters.

Unions are also indicating early opposition to liability protections.

"We know how to keep people safe and Congress shouldn't be telling businesses they have no obligation to do so. It is time for Sen. McConnell and other elected leaders to focus on protecting families and workers in every community across the country," American Federation of State, County and Municipal Employees Director of Research and Collective Bargaining Dalia Thornton said in a statement.

Lawmakers should instead advance a proposal pushed by House Education and Labor Committee Chair Bobby Scott (D-Va.) that would force the Occupational Safety and Health Administration to issue standards detailing how healthcare facilities would be required to safeguard frontline workers, Thornton said. The bill, which was also supported by National Nurses United, has been left out of prior relief packages due to Republican opposition.

Several major provider lobbies are pushing Congress to overcome the gridlock and pass some national protectors for healthcare facilities, physicians and other clinicians. Providers are more closely aligned with Republicans on the issue, while Democrats have championed funding for hospital and provider relief in prior coronavirus-related legislation.

An analysis by Valerie Gutmann Koch, the director of law and ethics at the University of Chicago's MacLean Center for Clinical Medical Ethics, found that states have a patchwork of different liability protections for physicians during a declared state of emergency.

"There has been extreme variation in whether states have implemented or called for crisis standards of care and liability protections for physicians," Gutmann Koch wrote.

Sixteen states with both Republican and Democratic governors created new, coronavirus-specific liability protections for physicians unless they engage in willful or intentional misconduct or gross negligence, and 18 states had existing protections.

The Federation of American Hospitals argued that congressional intervention is needed because of inconsistent guidance from federal, state and local officials.

"Federal action is necessary to provide a uniform level of protection and avoid varying liability laws among states that would lead to unequal treatment of our frontline healthcare providers and facilities during this national crisis," the group wrote to lawmakers.

FAH asked lawmakers for immunity for civil liability for providers and facilities for injuries or death resulting from care provided in good faith during the COVID-19 pandemic. The American Hospital Association and Greater New York Hospital Association also asked lawmakers for broad liability protections for providers and hospitals.

Specific liability challenges the coronavirus pandemic could pose to providers stem from shortages of medical supplies, workforce shortages and delays of elective procedures, FAH said. The American Medical Association said the suspension of elective in-person visits, physicians treating patients out of their area of specialty or after coming out of retirement, inadequate supplies and testing, and treatment delays for patients with other conditions could also cause liability issues.

AMA pointed out that lawmakers added protections for healthcare volunteers in the Coronavirus Aid, Relief, and Economic Security Act.

"We strongly urge Congress to consider broader liability protections for physicians and other clinicians and the facilities in which they practice as they continue their non-stop efforts to treat COVID-19 under unprecedented conditions," AMA wrote.