United States: Pennsylvania Governor Issues Much-Anticipated Executive Order Extending Liability Protections For Healthcare Professionals Responding To COVID-19 Crisis

As the COVID-19 crisis continues to strain healthcare resources and professionals across the nation, Pennsylvania Governor Tom Wolf has responded by extending liability protections for healthcare workers responding to the crisis. Since March 6 when Governor Wolf declared a state of emergency, the healthcare community has been concerned that shortages of personal protective equipment (PPE), ventilators, drugs and staffing would increase the potential for lawsuits filed against frontline healthcare responders. Physicians and nurses across Pennsylvania shared that they were very concerned about the legal risk of providing care during the pandemic, particularly in healthcare settings that implemented "crisis standards of care" in response to patient surges and other challenges. Similarly, hospitals, nursing homes and other healthcare facilities across Pennsylvania have cared for the nearly 53,000 infected COVID-19 patients and the 3,400 patients who have died to date during the emergency. While Governor Wolf's order provides immunity to healthcare providers, it does not extend to healthcare facilities.

On May 6, 2020, Governor Wolf issued an Executive Order to enhance protections for healthcare professionals. The order comes two months after Governor Wolf declared a state of emergency, and more than a month after other states issued similar liability protections, including New York, New Jersey and Illinois.

Governor Wolf issued the order pursuant to his authority under Pennsylvania's Emergency Management Services Code. The order is effective immediately and will remain in effect for the duration of the disaster emergency.

What Is Covered by the Immunity Order?

While New York's immunity order (Executive Order 202.10) granted immunity for criminal liability, New Jersey, Illinois and now Pennsylvania have limited the extension of immunity only to civil liability. Covered individuals (discussed below) under Governor Wolf's order are immune from civil liability and shall not be liable for the death of or any injury to a person or for loss of or damage to property as a result of engaging in "emergency services activities" or "disaster services activities." Although undefined in the order, the definition of these activities appear under Pennsylvania's Emergency Management Services Code, 35 Pa. C.S. § 7102.¹

As expected, the order's scope does not extend immunity to acts or omissions that constitute a crime, gross negligence or fraud, malice or other willful misconduct. Nor does the order address vicarious liability for facilities, an important area of litigation likely to arise in the future.

Who Is Covered?

The grant of civil immunity applies to specified individuals engaged in any emergency services activities or disaster services activities related to the commonwealth's COVID-19 disaster emergency response. Interestingly, and unlike other state immunity orders, Governor Wolf has classified and specifically enumerated the individuals granted civil immunity as "agents of the Commonwealth."

The following individuals and entities are shielded from civil liability relating to the provision of emergency or disaster services under the order:

• The Commonwealth: The commonwealth, its political subdivisions, agencies and, most importantly, the agents, employees or representatives of any of them.
• "Agents" of the Commonwealth Include Providers Authorized to Practice a Health Care Profession: The order designates classifications of individuals as agents of the commonwealth solely and exclusively for purposes of immunity from civil liability.

Immunity applies to the categories of individuals described below, classified as the commonwealth's "agents," but only to the extent the individual are engaged in emergency services activities or the provision of disaster services activities:

• Any individual who holds a license, certificate, registration or certification to practice a healthcare profession or occupation in Pennsylvania and who is engaged in providing COVID-19 medical and health treatment or services during the COVID-19 disaster emergency response. Immunity extends to these individuals, provided they render treatment or services in any of the following types of facilities and care settings:
  • Healthcare facilities (as defined by the Health Care Facilities Act)
  • Nursing facilities, personal care homes and assisted living facilities
  • Alternate care sites, community-based testing sites or noncongregate care facilities used for the purpose of conducting emergency services activities or the provision of disaster services activities

The designation of "agents" is without regard for whether such individuals are paid for their services. Importantly, as stated above, the facilities or entities themselves are not immune from liability.

• Persons Under Contract with the Commonwealth: Any individual or other person under contract with the commonwealth or its agencies to provide equipment or work on a "cost basis" to be used in disaster relief is afforded immunity under the order.
• Individuals or Entities Engaged in Disaster Services Activities: The grant of immunity also extends to any person, firm, corporation or an agent or employee of the commonwealth engaged in disaster services activities.
• Owners of Real Estate that Voluntarily Permit Use of Property for Emergency Services: Additionally, the order affirms immunity for any person, organization or authority allowing real estate or other premises used for emergency services without compensation in the case of death, injury, or loss or damage to the property of any person who is on the premises for the purpose of those emergency services.

Who's Not Covered?

• Facilities or Entities Providing Care: Perhaps most prominently, the order excludes from immunity protection the facilities or entities through which individual healthcare workers provide care. Accordingly, health systems, hospitals, nursing homes, adult day care centers, physician practices and all other entities that provide healthcare to COVID-19 patients are not immune for civil liability.
• Non-COVID-19 Treatment: Additionally, the grant of immunity does not extend to healthcare professionals rendering non-COVID-19 medical and health treatment or services to individuals. The order does not address non-COVID-19 care that is impacted by shortages in other service lines due to COVID-19.

Suspension of a Host of Regulatory Barriers to Increase Delivery and Access to Care

Governor Wolf's order also suspended or removed a slew of regulatory barriers that would otherwise impede or prevent out-of-state, retired or other qualified practitioners from providing services where needed in the commonwealth.

The order suspends statutes and regulations related to licensure, certification and care provided to Medical Assistance beneficiaries to the extent their provisions could prevent, hinder or delay the delivery of healthcare services in response to the COVID-19 emergency. The order contains the full listing and citations of suspended statutes and regulations.

With respect to licensure and certification authority over healthcare facilities which are intended to increase access and delivery of care, the effects of the suspensions are briefly listed below:

• Allows professionals certified or licensed in any state to practice in Pennsylvania.
• Relaxes the scope of practice and supervision requirements in certain healthcare facilities.
• Removes requirement that skilled nursing care facilities employ a full-time licensed nurse as the director of nursing, allowing for part-time status.
• Suspends requirement that home healthcare agencies require services to be provided in a place of residence for purposes of expanding telehealth.
• Suspends licensing requirements for direct care workers practicing in home care agencies or registries so that out-of-state licensed workers may provide care.
• Suspends requirements that home care agencies or registries have face-to-face interactions with consumer in the consumer's home for purposes of expanding telehealth.
• Suspends requirements for birth centers to take delivery of pharmaceuticals with a signature.
• Suspends requirements relating to EMS provider certification to the extent they would prevent out-of-state EMS providers from practicing in Pennsylvania.

The order also included suspensions of certain statutes and regulations relating to Medical Assistance beneficiaries and the Department of Human Service's authority to ease access to care. The effects of these suspensions are briefly listed below:

• Suspends prior authorization requirements to enable Medical Assistance beneficiaries to receive COVID-19-related supplies and durable medical assistance.
• Allows payment for transportation to facilities not enrolled in the Medical Assistance Program.
• Allows payment for services provided by practitioners who would ordinarily be required to be licensed in Pennsylvania.
• Suspends rules that prevent a medical professional from rendering COVID-19-related health care services in personal care homes.
• Suspends regulations relating to qualifications for home and community-based providers.
• Suspends rules relating to licensure and the payment for Medicaid services to Medical Assistance beneficiaries and licensure.
• Suspends regulations relating to licensure and payment for services to Medical Assistance beneficiaries that would prevent the use of licensed practitioners other than physicians to the extent allowed under Pennsylvania law.

Providers and healthcare facilities should review the order and the relevant regulations and statutes temporarily suspended under the order to ensure their practices and policies align with the governor's mandates. Healthcare facilities and entities should keep in mind that the liability protections do not extend to them, but only extend to individual providers. As the order does not address vicarious liability for facilities, entities and individuals affected by the order should follow the course of any future COVID-19-related litigation as it is sure to unfold.

Footnote

1 The statute defines "disaster emergency-related work" as "the repair, renovation, installation, construction or rendering of services or other business activities that relate to infrastructure that has been damaged, impaired or destroyed by a disaster."

"Emergency services" is defined as "the preparation for and the carrying out of functions, other than functions for which military forces are primarily responsible, to prevent, minimize and provide emergency repair of injury and damage resulting from disasters, together with all other activities necessary or incidental to the preparation for and carrying out of those functions. The functions include, without limitation, fire-fighting services, police services, medical and health services, rescue, engineering, disaster warning services, communications, radiological, shelter, chemical and other special weapons defense, evacuation of persons from stricken areas, emergency welfare services, emergency transportation, emergency resources management, existing or properly assigned functions of plant protection, temporary restoration of public utility services and other functions related to civilian protection."

For More Information

If you have any questions about this Alert, please contact Delphine O'Rourke, Kevin Moran, any member of the COVID-19 Strategy Team or the attorney in the firm with whom you are regularly in contact.