Limited Civil Immunity and Relaxed Licensing Now Available for Health Care Workers and Their Employers

By John Rafferty, Esq.

Requirements for Health Care Providers Fighting COVID-19

On Wednesday, May 6, Governor Wolf issued an Order that enables health care providers and certain residential facilities within the Commonwealth to more efficiently respond to the COVID-19 crisis. To enable health care providers to make decisions in the face of a COVID-19-related emergency without fear of reprisal, this Order carves out limited, civil immunity for certain categories of providers. To maximize the number of medical and care personnel who can respond to this crisis, the Order also temporarily removes Pennsylvania-specific licensing requirements for certain categories of providers. The provisions of this Order are without precedent, so employers would do well to proceed with caution on both fronts.

Limited Civil Immunity

The civil immunity carved out in this Order applies only to health care professionals who provide “emergency services activities” or “disaster services activities” that are “related to Pennsylvania’s response to the COVID-19” crisis. Providers of such activities, including volunteers, have limited immunity from civil suits for their actions when their services are rendered within any health care facility, nursing facility, personal care home, assisted living facility, alternate care site, community-based testing site, or non-congregate care facility.

In what way is this immunity limited?

Although health care professionals providing specific services in specific facilities are generally immune from suits related to the death or injury to a patient to whom they are rendering services, providers are not immune for any behaviors or decisions that amount to willful misconduct or gross negligence. “Willful misconduct” generally requires a claimant to show a knowing disregard for the policies of an employer, a deliberate rule violation, or a demonstrable disregard for the employer’s interests. “Gross negligence” generally requires a claimant to show a significant departure from how a reasonable person would act under the circumstances, which could come about both by a health-care provider acting, or failing to act.

Although Pennsylvania courts have issued guidance about willful misconduct and gross negligence, the unprecedented nature of this crisis means there is no legal guidance as to how and when judges will uphold civil immunity for providers. The key language in the Order requires a provider seeking immunity to be “engaged in emergency services activities or the provision of disaster services activities related to the COVID-19 disaster emergency.” Future federal and state courts will be asked to decide what constitutes “emergency services activities,” or “disaster services activities” or what analysis a judge can employ to determine when those activities sufficiently “relate to” the COVID-19 crisis.

Instead of considering this immunity as an insurance policy or safety net, employers would be wise to consider it a possible defense that may provide an early, favorable resolution to future suits against their employees or facilities. Since there is no precedent interpreting the key language in the Order, employers should reinforce the existing standards and risk-management protocols for deployment of emergency services. If an employee’s behavior or decision is later determined to have happened while “engaged in emergency or disaster services” and “related to the COVID-19 emergency,” this limited immunity could be an efficient and cost-saving defense.  While courts are still interpreting this language for the first time, health care providers should operate under the assumption that any immunity, if upheld by the courts, will be limited in both application and scope.

Licensing Requirements

Govern Wolf’s Order relaxes Pennsylvania-specific licensing requirements when those regulations prevent or delay the delivery of health care services in response to the COVID-19 crisis. To increase the available pool of health care professionals who can strengthen Pennsylvania’s response to COVID-19, this Order relaxes certain licensure requirements in the following ways:

• Welcomes medical professionals and EMS-providers, licensed in other states, to deliver services within Pennsylvania (including telemedicine visits with out-of-state providers)
• Enables qualified medical directors and directors of nursing facilities to serve in that capacity, even if they are not licensed in Pennsylvania.
• Permits home health care agencies and birth-centers to employ staff that are not licensed in Pennsylvania.
• Allows home health care agencies to conduct patient-visits using telehealth.
• Reduces traditional supervision requirements for medical professionals, which both facilitates social-distancing, while also freeing up more providers, in an already-strained health-care system.

One of the benefits state licenses afford employers is the presumption that a hired professional meets at least the minimum qualifications to perform his or her job in Pennsylvania. In litigation pertaining to negligent hiring and negligent supervision, courts are likely to examine closely the steps employers took to ensure that the provider at issue was qualified to render services. When the employer can point to a license issued by state in which the suit is brought, the employer’s hiring decision is more easily defensible. This analysis changes however, when employers hire providers licensed in other states.

In the case of out–of-state practitioners who may now practice telemedicine in Pennsylvania, those practitioners must be “licensed in good standing” in their home state, territory or country by the equivalent of the corresponding Pennsylvania board. Employers hiring these out–of-state practitioners should expect, in litigation related to hiring decisions, a greater responsibility to produce evidence showing that their out–of-state hire was in fact, “licensed in good standing” with their equivalent licensing board.

Employers considering such out–of-state hires should, conduct an extra-measure of background research into the out-of-state candidates, and retain in its records, the data gathered demonstrating appropriate licensing. If the employer is later asked to produce the data relied upon at the time of hiring, tending to show that the candidate was in good standing elsewhere, that data (and the defense) will be readily available.

Governor Wolf’s May 6^th Order will undoubtedly make Pennsylvania better able to respond to the evolving COVID-19 crisis by providing limited immunity to health care professionals and giving employers more flexibility about who employers can hire to deliver crucial services during this emergency. But with greater freedoms comes greater responsibilities. Employers hiring out-of-state providers should perform more in-depth research and keep more-detailed records; and even those providers who might be immune from liability for their actions during this crisis would be wise to not assume their actions are immune, since important questions remain unanswered about how and when such immunity could apply.

Gawthrop Greenwood and its team of lawyers will continue to review legislation and governmental decisions as they unfold, as we are committed to providing guidance to our clients. If you have any questions, please do not hesitate to call us at 610-696-8225.