As COVID-19 cases and deaths trend downward and senior living communities begin to reopen, tools are available to help mitigate their liability risk, according to a panel of experts speaking Wednesday at a virtual session at the American Health Law Association 2021 Long-Term Care and the Law conference.

Panelists addressed trends and legal developments in the use of waivers, informed consents and attestations in senior living communities.

Melissa Solomon, vice president of risk and legal affairs at Irvine, CA-based Silverado, said that when a national state of emergency was declared due to COVID-19, it was the “equivalent of a Category V hurricane” of federal, state and local laws, regulations, orders and guidance being thrown at the long-term care industry. 

“The volume of guidance coming out was significant, and it changed at least weekly,” she said.

Long-term care operators typically enacted their emergency operations plans once or twice a year due to natural disasters, she pointed out, but those emergencies typically targeted specific regions and affected only a handful of communities for short periods of time. 

“The scope and scale of the coronavirus pandemic was like nothing we’ve ever experienced,” Solomon said, adding that operators were talking about their exposure to potential pandemic liability, how their insurance carriers would respond to potential claims, and what policy renewals would look like.

Insurance

Tara Clayton, a senior claims consultant with Louisville, KY-based Willis Towers Watson, said that COVID-19 is the largest event to affect the insurance industry. It made its impact across all geographies, affecting multiple lines of business. As a result, she said, COVID-19 is another factor layered on to a marketplace already having an adverse reaction, particularly in general and professional liability. 

Once the pandemic started, the marketplace reacted quickly, Clayton said. As policies come up for renewal, she said, carriers are implementing exclusions ranging from narrow and specific COVID exclusions to broader pandemic and epidemic policies to the broadest communicable disease exclusions. 

The market has not defined “communicable disease,” Clayton said, adding that a host of diseases completely unrelated to COVID could be captured in the exemptions now rolling out.

A big takeaway from the insurance side, she said, is that during renewal time, operators should know what type of coverage is being offered and where issues may exist where they previously did not.

Waivers

Waivers, Clayton said, involve intentional relinquishment or abandonment of a known right. Courts will consider multiple factors, and waivers can vary by jurisdiction, with some jurisdictions outright forbidding them.

Pandemic waivers are untested in courts and are less common in the healthcare sector, she said. Regulatory requirements exist for senior living providers and directors mandating person-centered care, and some regulations may prohibit waivers, Clayton added.

Waivers, she said, are not a one-size-fits-all approach, and jurisdictions and regulations play a role in determining what is permissible. 

Informed consents result from discussions with a resident or family member of the risks each are willing or unwilling to assume with the provision of services in the resident’s living environment, explained Drew Graham, a partner at Hall Booth Smith, P.C., in New York.

An “expectation of failure or disappointment” drives people to sue, he said, adding that a strong discussion — sometimes a difficult discussion —  can break that cycle. 

“One thing we spent a lot of time and energy on with our associates is helping them to set reasonable, realistic expectations with family members,” Solomon said, adding that Silverado uses informed consent through a risk advisory document that everyone signs at move-in. The process is similar to what the community does with falls, she said.

“We are educating them with a realistic look at what the residential setting is, the benefits and risks,” Solomon said. “We made it a priority.”

Ninety-five percent of residents or families sign and return the document, she said. 

One of the overarching themes in actions related to COVID-19, Clayton said, are allegations from families that they were not notified of an infection in the building. In her experience, however, “Throughout the pandemic, providers have done a phenomenal job of communicating. I’ve never seen the industry step up as much as they have, really taking the time to give constant updates and communication to staff, residents and family members across the board.” She said she hopes that communication continues when the pandemic ends.

Attestations

Attestations are formal documents that verify a discussion or presentation about inherent risks. They are commitments that people are willing to affirm that they will follow whatever guidance they are being asked to follow, Graham said. 

For litigation, in theory, signing an attestation and then not following the rules is impeachment. Graham called it a way to break the cycle of people seeking legal remedies and an additional incentive to say “we’re all in this together.” 

Attestations, Clayton said, show that processes are in place and that there are expectations for behavior. They help build trust in relationships so that residents and families understand the culture, mindset and expectations. 

PREP Act

The Public Readiness and Emergency Preparedness Act is a federal public health law that provides immunity for injury caused by a covered countermeasures, except in cases of willful misconduct.

Clayton said that, in her experience, providers are asking how the PREP Act is going to apply or how it applies to specific claims. U.S. Department of Health and Human Services guidance on the PREP Act has evolved with the breadth of the pandemic and in response to narrow readings by federal judges.

With little case law available on the PREP Act in the context of COVID-19, Graham called the act an uncharted area that the courts are trying to understand. He said it’s not routine administrative law nor tort reform, but it’s something necessary as part of the social contract to keep people “motivated and moving and manufacturing without fear of liability.”

“This is a federal crisis. We want federal judges to administer the act in a uniform way,” Graham said. “The big issue I think HHS is perceiving is that with inconsistent application of the law and the declaration, we could end up hurting our ability to respond not only to this emergency but the next one.”