EXECUTIVE SUMMARY

Assisted living facilities may face lawsuits related to care provided during the COVID-19 pandemic. Federal laws may provide some immunity.

  • The extent of immunity is unknown.
  • Facilities should be able to provide document of pandemic-related policies and procedures.
  • Aggressively defend allegations of deficiencies to discourage more lawsuits.

Assisted living facilities and their affiliated hospitals and health systems are bracing for a wave of lawsuits associated with COVID-19. It remains to be seen how much immunity they can expect from laws implemented during the pandemic.

Risk management for assisted living facilities should be more responsive, nimble, and organized than ever before, says Jodi Barrett, JD, partner with Hall Booth Smith in Palm Beach Gardens, FL.

In 2020, assisted living risk managers learned assumptions and practices for providing care, and even whether and how to allow visitors, can change overnight.

Communities that followed federal, state, and local executive orders, mandates, regulations, and guidance about COVID-19 minimized risk and protected their clients and themselves from potential litigation, she says. The unsung heroes are the care providers in these communities who worked tirelessly to care for their residents and adapted and pivoted as they learned more about the virus and how to minimize exposure and spread.

Federal laws implemented to protect healthcare providers are at the forefront of the defense against COVID-19 litigation and will hopefully provide immunity for long-term care providers.

“COVID-19 litigation is widespread, despite federal laws that were specifically implemented to mitigate risk and provide immunity for providers,” Barrett says. “The impact on the industry will be determined in the coming months as federal laws are tested and those cases are resolved.”

If litigation is pursued, it is imperative that assisted living facilities provide detailed records of how and when they implemented pandemic-related policies, procedures, and training, and also demonstrate they followed their own best practices in day-to-day patient care.

Additionally, they must aggressively defend against any investigations that improperly cite alleged deficiencies, she says. Creating precedence for this will be critical so that one investigation or lawsuit is not followed by many more.

“While circumstances are novel, best practices today are the same they have always been — having infection control programs, policies, and procedures in place that comply with federal, state, and local mandates, and being able to demonstrate proper training, documentation, and adherence to those programs,” she says.

“Assisted living facilities should be leaning on the federal immunities and supporting legislative action for immunity at the state level to minimize possible liability risk. Many healthcare providers are being scrutinized for allegedly being passive in caring for residents because they have had to modify certain activities, suspend non-essential programs, halt in-person visits, and activate isolation practices,” Barrett adds. “While some people may try to turn that into a liability allegation, in reality, all of those changes are part of a broader effort to protect residents from COVID-19.”

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