Sen. Floats Bill To Shield COVID-19 Doctors From Legal Action

By Y. Peter Kang
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Law360 (March 30, 2020, 8:54 PM EDT) -- A GOP senator on Monday introduced a bill that would grant broad legal immunity for health care providers providing treatment outside of their specialties to COVID-19 patients for the duration of the national health emergency.

Sen. Ben Sasse, R-Neb., floated a bill that would create the Facilitating Innovation to Fight Coronavirus Act. The legislation would shield health care providers from federal, state and local civil liability if they are testing or treating coronavirus patients and use a medical device for an unapproved use; practice outside of their specialty but under the instruction of an individual who is licensed in that specialty; or provide care outside of the premises of a standard health care facility.

"In ERs and ICUs across America, doctors and nurses are writing the playbook as they fight this virus one day at a time. These heroes need a common-sense liability shield so that they don't have to worry about lawsuits while they're scrambling to save lives," the senator said in a statement. "Congress needs to make sure that phase four legislation protects our doctors and nurses from a plague of lawsuits."

If enacted, the bill would add to the legal protections already put in place by the massive $2 trillion stimulus package the president signed into law Friday. The Coronavirus Aid, Relief and Economic Security Act, or CARES Act, provides legal immunity to volunteer health care workers in the absence of reckless conduct or gross negligence.

Monday's proposed legislation also comes amid efforts at the state level to facilitate treatment by health care providers. New Jersey, Texas, Pennsylvania and other states have issued temporary waivers of regulatory requirements such as licensing restrictions for out-of-state health care providers.

The bill was introduced hours before the Centers for Medicare & Medicaid Services announced late Monday that it had granted a broad, temporary waiver of an array of regulations in order to allow health care providers to respond quickly to a surge in COVID-19 patients.

CMS said the temporary changes will allow hospitals and health care systems to provide patient care at off-site locations in order to allow COVID-19 patients to be treated at a main facility, and permits hospitals to triage patients at community-based locations such as surgical centers that are no longer performing elective surgeries, hotels and dorms.

"Front-line health care providers need to be able to focus on patient care in the most flexible and innovative ways possible," CMS Administrator Seema Verma said in a statement. "This unprecedented temporary relaxation in regulation will help the healthcare system deal with patient surges by giving it tools and support to create nontraditional care sites and staff them quickly."

--Editing by Alanna Weissman.

For a reprint of this article, please contact reprints@law360.com.

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