Executive Orders: Healthcare Liability Shields
Legislation shielding healthcare providers and their employees from liability passed through the Arkansas legislature with even less stir than business liability protections. In this week’s blog, we take a closer look at the executive orders at play, examine the legislative process, and survey the national landscape.
Bottom line: Through May 1, 2023, Arkansas healthcare providers and their employees are exempt from liability for harm caused by acts or omissions related to the diagnosis, treatment, cure or mitigation of COVID-19, so long as they were not negligent.
Executive Order 20-34 and 20-52
Three months after the state of emergency began in Arkansas, Governor Asa Hutchinson entered EO-20-34, which was designed to ensure healthcare workers and providers are authorized to use crisis standards of care to respond to treat COVID-19 patients by granting immunity from civil liability. Like the grant of immunity to businesses, this protection did not extend to willful, reckless, or intentional misconduct. Immunity from liability was granted to the healthcare provider or emergency responder for death, injury, or property damage, resulting from any acts or omissions occurring during treatment and mitigation of COVID-19. Immunity from liability was also provided to healthcare providers using any prescription drugs or devices to treat COVID-19 so long as it was within the scope of the provider’s license, in accordance with current recommendations, and the patient consents.
The order also defined and authorized emergency management functions including cancelling, postponing, or denying elective procedures, redeploying or cross training staff, and enacting crisis standards of care measures such as modifying numbers of beds, preserving personal protective equipment, and triaging access to services or equipment, and reducing record keeping requirements. The order declared all healthcare providers, both individuals and entities, performing services related to the treatment of COVID-19 as emergency responders during the COVID-19 public health emergency.
Just weeks before the start of the 2021 legislative session, on December 20, 2020, Gov. Hutchinson entered Executive Order 20-52, which superseded EO-20-34. Like its predecessor, it offered liability protection for treatment and mitigation efforts related to COVID-19 but expanded the scope to include diagnosis and prevention efforts. Most significantly, EO-20-52 added a provision extending liability protection to “the care of any individual who presents at a healthcare facility or to a healthcare professional during the period of the COVID-19 public health emergency.” This is a significant shift, expanding protections to patients outside of COVID-19 related treatments.
Legislation aimed at codifying the executive order was filed before session began, but SB13 by Senator Dan Sullivan was never heard in committee. The author withdrew the bill in early April after a House bill with the same goal was signed into law.
On February 22, 2021, Representative Austin McCollum filed HB1521, which closely mirrored the first executive order but added additional definitions and clarifying language. The bill included similar emergency management functions but defined more clearly the concept of redeploying or cross training staff by specifying such reassignment must be within the employee’s or contractor’s licensure, certification, or scope of practice. Specification on required approvals for drugs and devices used in the course treatment were also added. As an additional allowance, the bill granted the removal of limits on working hours for healthcare workers when necessary to maintain adequate staffing.
Notably, the legislation did not include the broad provision of protection added in EO-20-52 for patients outside of COVID-19 related treatment. Instead, it limited liability protections to acts or omissions “in the course of performing emergency management functions related to COVID-19.” This distinction is significant, as the legislation remains in effect through May 1, 2023.
Much like the business liability protection legislation, HB1521 bill had little opposition on its journey into law. Bill co-sponsor Representative Justin Gonzales briefly presented the bill to the House Public Health Committee on February 25, explaining the bill would codify the executive order and protect healthcare workers. He specified the bill did not extend liability protection to intentional acts. There were no questions or discussion on the bill, and it passed by voice vote. On March 1, HB1521 passed through the House with a vote of 80 Yeas, 12 Nays, 4 Not Voting, and 4 Present.
The presentation in the Senate Public Health Committee, on March 1, was slightly less anticlimactic. Bill sponsor Senator Ben Gilmore presented the bill, stating it codified the executive order related to healthcare workers. Prompted by a request from Senator Cecile Bledsoe, Chair of the committee, for more information on the bill, Sen. Gilmore extended his presentation on the bill and invited attorney Justin Allen to join him. Allen also elaborated on the purpose of the bill and its expiration date. Senator Kim Hammer voiced concern about the timeline of the bill. Due to the recent studies related to the long-term effects of COVID-19, he was curious if these protections might transition from two years to permanent. Allen acknowledged the concern and reiterated that the bill will allow the next general assembly to address the issue. The bill passed through the committee by voice vote with no audible dissenters. The following day, the Senate passed HB1521 with 34 Yeas.
On April 1, 2021, HB1521 became Act 510, taking effect immediately in accordance with the emergency clause adopted in both chambers.
Continued Protections and Pending Litigation
The pandemic undoubtably shook the healthcare industry, placing immense stress on providers and their employees. Operating with staff shortages, lack of equipment, and a lot of unknowns, the healthcare sector faced extensive liability risks. Accordingly, there was a push across the nation to offer liability protections and ensure the healthcare industry could act effectively and efficiently during the pandemic.
On March 24, 2020, the US Secretary of Health and Human Services issued a letter urging state governors to take action to assist the healthcare industry, including providing civil immunity from medical liability. During the height of the pandemic, nearly all states and the District of Columbia provided liability protection for healthcare workers, either through EO or legislation. Per the American Medical Association, at least 29 states have passed legislation protecting physicians.
Debates arose at the federal level, with many calling for broad federal regulations to protect the healthcare industry from liability. Proponents urged regulations were needed to protect those working to fight the virus on the front lines and to avoid a slew of litigation, while opponents voiced concern over patient care and expressed hesitation for a lack recourse for harm caused.
Although there is no broad-based immunity from civil liability under federal law, some protective measures were added during the pandemic.
- Public Readiness and Emergency Preparedness Act (PREP Act) – allows immunity for “covered countermeasures” during an emergency including drugs or devices developed to diagnose or treat COVID-19 unless the conduct was willful
- Coronavirus Aid, Relief and Economic Security Act (CARES Act) – provides protection from potential liability for care afforded to COVID-19 patients by “volunteers” but does not protect for profit professionals
Those who were fearful of extensive litigation were apparently not without cause. Litigation is already emerging in multiple states, and courts will soon decide if a cause of action exists outside the liability limitations in executive orders and newly passed legislation. Most prevalent at this time are lawsuits related to COVID-19 deaths in nursing homes.
As Sen. Hammer indicated during committee, the long-term effects of COVID-19 are currently unknown. As medical understanding of the virus improves, additional concerns over liability and potential litigation may arise. The 94th General Assembly of Arkansas, set to convene in January 2023, will be tasked with addressing those concerns and choosing whether or not to extend the protections afforded first by EO-20-34 and now by Act 510.
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