Bills introduced in the Florida House and Senate would offer differing levels of COVID-19 liability protections for assisted living communities and other long-term care settings.

The Senate legislation, SB 74, would require plaintiffs to provide “sufficient detail” that a provider was grossly negligent or engaged in intentional misconduct in causing death or harm in COVID-19-related lawsuits. The bill also would provide immunity for claims related to supplies or personnel not readily available or not available at a reasonable cost to comply with COVID-19 standards. 

In addition to assisted living communities, the legislation also would protect other healthcare providers, such as adult family care homes, companion and homemaker services, home health agencies, nursing homes, home medical equipment providers, adult day centers and hospices.

The House bill, HB 7005, would require an affidavit signed by a physician attesting that the claim is a result of a provider acting grossly negligent or with intentional misconduct. Plaintiffs also would be required to prove that providers did not make a “good faith effort” to substantially comply with public health standards or guidance in effect at the time of the action.

The House version would eliminate the protections after a year. Claims would need to be brought within one year of COVID-19-related death, hospitalization or diagnosis.

No. 1 concern

Jason Hand, vice president of public policy and legal affairs for the Florida Senior Living Association, told McKnight’s Senior Living that COVID liability protections are the No. 1 concern of the group’s members during this legislative session.

Assisted living communities should be protected, Hand said, because they were not licensed, designed, staffed or trained to house residents with communicable diseases. For the past year, however, “they were asked to ignore that rule” to keep hospital surge numbers down, he added.

Although hospital staff members have been held up as heroes, assisted living staff members, Hand said, are being demonized for “going outside of their swim lane at the request of the federal and state governments.”

“They did everything they could with what they had,” he said. “They want to know the state’s going to have their back. At the end of the day they are looking for some protections from frivolous lawsuits.”

Kristen Knapp told McKnight’s Senior Living that the Florida Health Care Association supports these two bills as part of its top legislative priorities this session. 

“Given the overwhelming and nationwide impact of the pandemic, the initial shortages of PPE and testing, the lack of scientific certainty about treatments and methods of transmission, and the fact that long-term care providers were being forced to step outside of their intended scopes, we believe our frontline healthcare workers and their care centers should not be held liable for the spread of COVID-19 or care directly impacted by the crisis if they made a good faith effort to comply with government issues and standards,” said Knapp, FHCA’s director of communications.

The association, she added, is advocating for preventing the threat of excessive litigation through “sue and settle tactics” that could push the long-term care sector to an “economic breaking point” and drive up defense and claims costs. The plaintiff’s bar is “already positioning itself to profit from this tragic situation by organizing tort actions,” she said, adding that three of FHCA’s member companies collectively are facing more than 112 potential lawsuits.

“If providers are going to recover and continue meeting residents’ care needs into the future, we’ve got to ensure their resources aren’t diverted from the care center floor to the courthouse steps,” Knapp said. “We need to keep them invested in our workforce, technologies and training, as well as infection prevention supplies, to ensure the health, safety and well-being of the residents entrusted to their care.”

LeadingAge Florida President and CEO Steve Bahmer said that the bills “strike an appropriate balance” that ensures that COVID-19 claims can be filed where “legitimate actions of gross negligence or intentional misconduct may have occurred.”

“SB 74 and HB 7005 preserve the rights of residents and their families to sue, while extending limited liability protections to healthcare providers who did everything in their power to comply with federal, state or local laws, regulations or ordinances,” Bahmer said. “Reasonable liability protection makes sense for long-term care providers, and we look forward to working with the Florida Legislature and other key stakeholders on these important bills.”

COVID lawsuits

Legal teams for both long-term care operators and the residents and families affected by the pandemic are gearing up for lawsuits alleging neglect and wrongful death as a result of the virus. Many industry leaders have been advocating for federal protections for the senior living and care industries against COVID-19 related lawsuits.

COVID liability laws also are topping the 2021 priority lists for legislators in Alabama, Missouri and Nebraska.

To date, 21 states and the District of Columbia have enacted some level of COVID-19 liability protections, according to the American Tort Reform Association. From March to December 2020, $34.4 million was spent on TV advertisements for legal services and / or soliciting legal claims mentioning COVID-19 or coronavirus. 

Florida accounted for approximately 20% of all legal service TV ads and spending on ads mentioning COVID-19 or coronavirus, at $6.6 million, according to the ATRA. During that same time period, 7,734 lawsuits related to COVID-19 were filed in the United States.