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Hospitals on Edge as States Scrap Covid Emergency Declarations

May 3, 2022, 9:35 AM

States are scrapping their Covid-19 public health emergency declarations despite cases trending upward, threatening hospitals’ ability to respond to surges promptly.

Hospitals across the U.S. face greater liability for patient care choices they may make without proper supplies or staffing as the declarations—and the shields attached to them—fall by the wayside.
Many facilities experiencing a regional influx of Covid-19 patients can no longer call in practitioners licensed in other states as the declarations allowed.

“It’s the same pandemic. It’s the same conditions. But we are fighting it with different legal tools” that leave hospitals vulnerable, said James Hodge, director of the Center for Public Health Law and Policy at Arizona State University.

All 50 states made an emergency declaration in March 2020 to allow them to respond “quickly and aggressively” to the pandemic, said Josephine Gittler, a professor at the University of Iowa College of Law.

Governors and legislators in states including Arizona, Idaho, Indiana, Kentucky, Louisiana, New Jersey, Oregon, Virginia, and Wyoming have rescinded their emergency declarations in the past two months, according to the National Academy for State Health Policy. More are set to expire in the coming months unless renewed. Disaster declarations in other states ended as long as a year ago, while about a third of states are holding onto their emergency measures.

‘Not Like an Earthquake’

State emergency declarations are typically short-term strategies that increase local authority to respond to dire circumstances, said Julia Costich, a professor at the University of Kentucky College of Public Health.

These declarations provided states different powers than the federal public health emergency that Health and Human Services Secretary Xavier Becerra recently extended through mid-July.

Some states increased their hospital data-sharing requirements, gave health-care workers immunity from malpractice liability, and allowed practitioners to work across state lines without applying for new licenses.

The federal public health emergency expands access to services including telehealth, vaccines and testing, and Medicaid.

Several states, like California and Nevada, have had an emergency declaration in place since March 2020, Hodge said. Others, like New York and New Jersey, rescinded their emergencies during lulls and reinstated them during surges.

Covid-19 is “not like an earthquake, a hurricane, or another short-term event,” said Andy Baker-White, senior director of state health policy at the Association of State and Territorial Health Officials. “This is a once in a lifetime event—something we haven’t seen in over 100 years—so our idea of what a temporary declaration would be is going to be different.”

As these declarations unwind, there has been “a lot of distinction between blue states and red states,” said Sharona Hoffman, a professor at Case Western Reserve University School of Law.

Heading into an election year, many voters across the political spectrum “want this behind them,” Hodge said.

Liability

The Public Readiness and Emergency Preparedness Act protects health-care workers across the U.S. from liability for administering certain Covid-related medicines or supplies like vaccines, tests, or drugs.

Many state emergency declarations went one step further, shielding health-care workers from liability from lawsuits because of short staffing and inadequate supplies, said Valerie Rup, senior counsel at Dykema Gossett PLLC. “But many of those factors still exist,” Rup said.

Michigan, for example, protected licensed health-care workers and facilities that provide “medical services in support of this state’s response to the Covid-19 pandemic.” These workers are “not liable for an injury sustained by a person by reason of those services, regardless of how or under what circumstances or by what cause those injuries are sustained,” unless the injury was caused by gross negligence.

These protections may not make a big difference in the outcomes of malpractice cases, since courts “look at the standard of care and the circumstances that the care was provided in” even outside of a public health emergency, Baker-White said.

Health-care facilities and providers have insurance to protect them from these kinds of cases. But without emergency declaration backing, they may feel the “added stress” of an increase in malpractice claims in a couple of years, Rup said.

Staffing

Most states also lightened restrictions around medical providers coming in to help with pandemic response from out of state. Governors across the U.S. agreed to licensure reciprocity, made it easier for retired health-care workers to come back to the field, and relaxed the process for hospitals applying for additional beds, said Douglas Grimm, a partner at ArentFox Schiff.

Missouri, along with several other states, granted “full reciprocity for physicians and surgeons who wish to assist Missourians during the COVID-19 crisis” and have active licenses in other states, covering both in-person and telehealth care.

As these agreements expire, states experiencing surges can no longer rely on workers from other states helping to meet patient demand.

“If you’ve become accustomed to certain advantages that benefit the health system and the communities they serve, and if they magically go away without any replacement, that can lead hospitals to scramble and try to fill those voids,” Rup said.

Point of Inflection

“It leads to confusion” when states have a patchwork of flexibilities that change at a governor’s whim, said Jill Rosenthal, director of public health policy at the Center for American Progress.

Hospitalizations have remained stable since the omicron wave left many facilities without beds for patients or workers to care for them. “We’re in a slightly different place now,” said Hemi Tewarson, executive director of NASHP. “There are treatments for Covid, and more people are vaccinated,” she said.

The issue isn’t the fact that the declaration of emergency orders are now ending. “You would expect that after two years,” Gittler said.

Hospitals should be able to adapt to sudden changes in the public health situation without relying on emergency declarations, Tewarson said.

“I don’t think emergency declarations are designed to support long-term policymaking,” Tewarson said. Continued flexibility is necessary given that “the pandemic is not over, but we need to do some thinking outside of emergency declarations to understand what the longer term goals are,” she said.

To contact the reporter on this story: Allie Reed in Washington at areed@bloombergindustry.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Brent Bierman at bbierman@bloomberglaw.com

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