Update, March 29: Gov. Ron DeSantis has signed the bill into law.

A bill providing COVID-19 liability protections for assisted living communities and other long-term care settings in Florida is on its way to Gov. Ron DeSantis for his signature.

Friday, the Florida House of Representatives passed SB 72, Civil Liability for Damages Related to COVID-19. The vote followed state Senate passage of the bill a week prior. Protections will be effective immediately upon the governor’s expected signature and are retroactive. The measure does not apply to civil actions filed before the bill’s effective date.

“We are so grateful to the Florida Legislature for recognizing the importance of protecting senior living communities who were operating in good faith during the pandemic,” said Gail Matillo, president of the Florida Senior Living Association. “Our members worked harder than ever before to protect their residents and staff members. Protecting them from frivolous lawsuits has been our top legislative priority this year.”

The legislation creates a two-pronged system to limit COVID-19 liability claims — one for business entities, including independent living communities, and another for healthcare providers, including assisted living communities, memory care communities and continuing care retirement communities.

“There’s tremendous work being done across the country among the states to seek reasonable liability protections for assisted living communities, and we applaud our state partner, the Florida Senior Living Association, for their considerable efforts to ensure protections for their operators,” Argentum President and CEO James Balda said. “We encourage Gov. DeSantis to approve this legislation and support those who’ve cared for the most vulnerable during this pandemic.”

LeadingAge Florida President and CEO Steve Bahmer said it was difficult to remember now how little was known about the virus a year ago and “how many lifesaving decisions had to be made with little time and ever-changing information.”

“There are now more than 1,500 pages of orders, directives and FAQs, which, in some cases, changed as many as six times in three weeks,” Bahmer said. “In spite of the unprecedented challenges, our long-term care heroes fought courageously, under extraordinarily difficult circumstances, to protect Florida’s seniors from the coronavirus. Today, we applaud the legislature for protecting them.”

Healthcare protections

Liability protections for COVID-19-related claims against a healthcare provider mainly relate to claims arising from the diagnosis or treatment of a person with coronavirus, the provision of a novel or experimental treatment, transmission of the virus, and the delay or cancellation of a surgery or medical procedure.

The bill requires plaintiffs to provide “sufficient detail” that a provider was grossly negligent or engaged in intentional misconduct that caused death or harm. The bill also provides immunity for claims related to supplies or personnel not readily available or not available at a reasonable cost to comply with COVID-19 standards.

The bill limits the time for which an action can be filed based on the type of action. A COVID claim that accrued before the effective date of the bill must begin within one year of that effective date.

“This is an important step toward protecting senior living communities who were working hard to follow guidance that often changed daily, all while trying to keep their residents and staff safe from the virus,” said Jason Hand, FSLA vice president of public policy and legal affairs. 

Business protections

For claims against someone other than a healthcare provider, the bill establishes preliminary requirements before a case is allowed to proceed. The bill requires 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 the provider did not make a “good faith effort” to substantially comply with public health standards or guidance in effect at the time of the action.

FSLA worked with lawmakers on the bills, educating them on issues specific to senior living communities. Hand previously testified before Senate and House committees about assisted living communities needing protections. Such communities 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.

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