article is sponsored by Willis Towers Watson. In this Voices interview, Senior Housing News sits down with Willis
Towers Watson Senior Claims Consultant Tara Clayton to learn how the federal
PREP Act may pertain to senior housing during COVID-19, areas to be aware of
when reading a governor’s coronavirus-related executive order or state
legislation and how to have targeted risk management discussions during the
admissions process while maintaining a hospitable atmosphere.
Housing News: You’ve spent your career in health care law and senior living.
What attracted you to this area?
Tara Clayton: I was pre-med in undergrad, focused on clinical laboratory sciences. The plan was forensic pathologist. But, after some research projects with local medical examiners and several autopsies later, I thought, “How else can I be involved in health care but in a different setting?”
I discussed this with the medical examiner I worked with, whose husband
had been an attorney, hated it, and went back to medical school. I thought,
“Maybe I should do the opposite and look into health care law.” After
law school, I began working for a firm defending senior housing operators in
Kentucky, Ohio and Indiana against negligence and malpractice cases. I
immediately fell in love with the industry. Now, in my new consulting
role at Willis Towers Watson, I get to share strategic risk management ideas to
continue helping this industry.
legal element readers might be learning about more and more by the day is the
2005 Public Readiness and Emergency Preparedness Act, or PREP. How does it
pertain to COVID-19, specifically in senior housing?
The PREP Act authorizes the Secretary of the Department of Health and
Human Services (HHS) to issue a declaration providing immunity in certain
situations during a public health emergency. It’s relevant here because
Secretary (Alex) Azar issued a COVID-19 declaration on March 17th, with
subsequent amendment, that states it is providing immunity for covered persons
related to certain covered countermeasures. Importantly, on August 14th,
Argentum and the American Seniors Housing Association (ASHA) received a
response from the General Counsel’s office of HHS stating that senior living
communities are included as “covered persons” under the PREP Act.
As COVID-19 claims are now being filed, insurers and defense counsel are
reviewing those claims to see if the PREP Act immunity may apply. To help
expedite review of this issue by the insurer or defense counsel, operators
should be tracking the types of PPE utilized, efforts made to obtain PPE and
other resources, and the operators overall response during the emergency.
are the considerations that operators must make for potential PREP Act
Even though the Act has been in place since 2005, there are only a
handful of cases that have analyzed how this immunity applied in that specific
emergency situation. Each declaration and emergency should be looked at
separately as some declarations are broader than others.
The documentation of efforts I
just mentioned is helpful for the insurers and/or defense counsel to explore
whether the PREP Act immunity might apply. This type of documentation is
important documentation of the heroic efforts the operator undertook to protect
the residents and staff during these unprecedented conditions. It also can help
support the overall defense of the claim, painting the picture of the steps and
actions taken and obstacles overcome in an environment of constantly changing —
if not inconsistent — guidance, and lack of available resources for operators.
PREP Act, of course, is federal, but operators must also monitor state laws. If
an operator is in a state where there is a COVID-related immunity law, what should
the operator look for in terms of the key words and phrases?
Senior living as an industry provides very different services than what
is seen in a more acute care setting, like a hospital, or in a skilled nursing
setting. The stated language of the executive order or state legislation may or
may not include senior living, or it may not include the services provided by a
senior living operator.
When a claim is presented, it will be important for operators, insurers
and defense counsel to understand what the proffered protection is under that
specific jurisdiction. For instance, in state laws, you’ll often see terms such
as “health care provider,” but how is that term defined? Is it defined as an
individual? Is it defined to include entities? And, which entities are
Sometimes the language itself is not clear, and other regulations,
statutes or case law may need to be consulted to see how senior living is
treated in that jurisdiction.
Further, look at what services, acts and omissions are covered within
the scope of that immunity. For example, is it limited to “health care acts” or
does it include broader services? Does the immunity cover the date of the act
or omission in the claim. Not all executive orders or state legislation contain
a retroactive provision, so timing may be important.
are the most pressing areas of concern regarding lapsing protections?
State executive orders are not permanent. Some are connected in time to
the declaration of the emergency, but others have to be renewed to continue to
be effective. So while there may have been an executive order in place, you’ll
need to see if that order was permitted to lapse, or see if subsequent
there a groundbreaking state for the operators to monitor?
As states start to reopen businesses, some, including those without
prior protections, are passing legislation with broader immunity protections,
including health care immunity. Recent examples of states with newly enacted
laws to be reviewed for potential protections include Tennessee and Georgia.
But just as we are seeing some states pass legislation, we are also seeing some
states amend existing protections and/or allow protections to lapse, including
Potential new federal immunity is another area to watch. The SAFE TO WORK Act, which Senate Republicans proposed on July 27th, contains provisions for certain liability and immunity protections for businesses, as well as a separate provision relating to health care provider liability limitations. While this is just a proposal, it will be important to monitor developments from D.C. on the topic of immunity throughout the next few weeks.
senior housing begins welcoming outsiders more regularly in terms of visitors
and vendors, how can they mitigate risk?
I think one of the biggest opportunities for risk management as visitors
start returning to communities is for operators to continue robust
communication with families and residents.
The senior living industry, throughout this pandemic, has done a
phenomenal job of figuring out how to keep residents engaged and families
updated through open communication, dialogue and disclosures. But as visitors
start to return, it’s important to keep everyone — residents, visitors, staff —
up to date about what’s happening in the community, including the current response
I stress communication because I’m seeing a common theme in the existing
claims of allegations that the community failed to warn. Essentially, families
in these claims are alleging, “If I had known this information I would have
reacted differently.” Along with residents and families, it is important to
educate visitors and vendors on community requirements and expectations before
they enter the building. This communication, and its documentation, is an
important piece to help mitigate future claims.
how can senior housing operators continue to create a hospitable welcoming
atmosphere for residents within an increasingly litigious environment?
Again, communication is crucial. It helps create a relationship with the
community and the family so if a concern later arises, the family should feel
comfortable coming to the community to discuss. Operators should consider
disclosing specific risk-related areas of information during the admission
process. I’m not talking about all the pretty “sales” information, but
disclosing potential risks, including those risks associated with an admission
during a pandemic.
It is important to have communication of the risk to allow an individual
to make an informed decision about the action being taken, but deliver the
content in a way that helps initiate and create the open and trusting
communication I referenced earlier. This should create a hospitable and welcoming
environment with honest discourse at the outset, but also set realistic
expectations for the residency. The communication can be done through admission
forms, videos, etc., but the important part is having a dialogue with the
resident and family.
Editor’s note: This interview
has been edited for length and clarity.
contained herein is not intended to constitute legal or other professional
should not be relied upon in lieu of consultation with your own legal advisors.
To learn more about how Willis Towers Watson can help your community manage the
risk inherent in infection control, visit WillisTowersWatson.com.
Voices series is a sponsored content program featuring leading executives
discussing trends, topics, and more shaping their industry in a
question-and-answer format. For more information on Voices, please contact firstname.lastname@example.org.
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