May 18, 2020

Governor J.B. Pritzker issued a new Executive Order on May 13, 2020 providing hospitals and health care facilities some additional guidance on the scope of his prior grant of immunity from civil liability to hospitals and health care facilities during the Covid-19 pandemic.

While Executive Order 2020-37 clarifies some issues regarding the scope of immunity from civil liability raised by Pritzker's initial April 1, 2020 Executive Order 2020-19 on the subject, it also raises some new questions, and fails to answer some other questions raised by the initial Executive Order.

The new Executive Order adds Assisted Living Centers and Supportive Living Facilities to the list of "health care providers" that may be immune from civil liability due to Covid-19 issues. Hospitals, long-term care facilities, SMHRFs, and intermediate care facilities under the ID/DD were included in the April 1 Executive Order.

Section 5 of the new Executive Order says that absent gross negligence or willful misconduct, hospitals and health care facilities are immune from civil liability "for injury or death relating to the diagnosis, transmission, or treatment of Covid-19 alleged to have been caused by any act or omission" by a hospital, a health care facility, or a health care professional "which injury or death occurred at a time when a health care facility of health care professional was rendering assistance to the State" in response to the Covid-19 outbreak by providing health care services consistent with current guidance issued by IDPH. This language answers the question left open in the initial Executive Order by definitively stating that the immunity from liability extends only to injury or death arising from negligence relating to diagnosing, preventing transmission, or treating Covid-19 patients.

But note Section 5's caveat that the grant of immunity only covers care when a health care facility or health care professional was "rendering assistance to the State" in response to Covid-19. The initial April 1 Executive Order used this same language, but did not define what "rendering assistance to the State" meant. The new Executive Order provides some guidance on what "rendering assistance to the State" means.

Sections 2(a) (i) make it clear that for health care providers, "rendering assistance to the State" in response to Covid-19 means that a health care facility's actions "must include measures such as increasing the number of beds, preserving and properly employing personal protective equipment, conducting widespread testing and tracking, necessary steps to provide medical care to patients with Covid-19 and to prevent further transmission."

At first blush, the words "must" and "such as" may seem mutually exclusive: "must" a health care provider do those things, or does the "such as" language mean that the actions actually listed are just examples of things health care providers must do to qualify for immunity? Our best reading of this language is that these actions are just examples of things a health care facility must do to qualify for immunity from civil liability

And Section 2(a)(iv) says that rendering assistance to the State must also include, consistent with current and IDPH guidelines and recommendations, "conducting widespread testing of residents and widespread and regular testing of staff for Covid-19" and "accepting Covid-19 patients upon transfer or discharge from hospitals or health care facilities." Our best reading of this language is that if a health care provider used its best efforts to buy test kits to conduct such widespread testing, but the test kits were not available, then they may still qualify for immunity from civil liability.

Similarly, if a health care facility accepted some Covid-19 patients from the hospital, but refused to accept others because the facility determined it could not meet the patient's needs as required by IDPH and CMS regulations, then our understanding is that a health care facility will still likely qualify for immunity from civil liability. Remember that state license and federal certification statutes require nursing homes and other facilities to be able meet a resident's needs before deciding to admit them. We therefore doubt it was the Governor's intent to deprive a facility from immunity from liability if the facility refused to admit a Covid-19 resident because it could not meet their needs.

Much will continue its efforts to obtain further clarification from the Governor's office on these issues.

This article contains material of general interest and should not be construed as legal advice or a legal opinion on any specific facts or circumstances. Under applicable rules of professional conduct, this content may be regarded as attorney advertising.