Gloved hand holding medical rapid test labeled COVID-19 over sheet of paper listing the test result as negative.

Federal COVID-19 Response Unlawfully Blocks State Public Health Efforts

By Barbara J. Evans and Ellen Wright Clayton

The federal government recently used preemption unlawfully to prevent state public health efforts to protect vulnerable people from COVID-19.

As 1,000 current and former CDC epidemiologists noted in an open letter, the federal government has failed to use legal powers it does have to manage the crisis, leaving states to “invent their own differing systems” to manage COVID-19. We add that the federal government is now asserting emergency powers it does not have to disable state public health responses.

Early this month, Nevada officials halted the use of two rapid coronavirus tests that produced high false-positive rates when used for screening vulnerable people in Nevada’s nursing homes, assisted-living, long-term care, and other congregate facilities. More than half the positive test results were false.

On October 8, the U.S. Department of Health and Human Services (HHS) sent a letter threatening that the Nevada officials’ action was “inconsistent with and preempted by federal law and, as such, must cease immediately or appropriate action will be taken against those involved.” Nevada yielded to this threat and, on October 9, removed its directive to stop using the tests.

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NHS building

Update on Developing a Culture of Patient Safety in the NHS

By John Tingle

There are no quick fixes to developing an ingrained patient safety culture in health systems — change will not happen overnight. Nevertheless, the National Health Service (NHS) and the government in the U.K. are committed to continuing to improve patient safety.

In 2019, NHS England and NHS Improvement laid down an NHS Patient Safety Strategy roadmap, which continues to hold potential one year later.

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Busy Nurse's Station In Modern Hospital

Violence Against Health Care Workers: Legislative Responses

By Stephen Wood

COVID-19 and other diseases aren’t the only threat to health care workers. Violence in the workplace is a common occurrence and on the rise.

Despite these troubling trends, the policy response at both federal and state levels has, so far, been lacking.

In a recent survey of nurses, 59% reported that they had been the victims of workplace violence. More than half of those respondents went on to report that they were not satisfied with how the incidents were handled.

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Empty gym.

Are COVID Waivers Enforceable? Look to Gym Waivers for Insights

By Sunnie Ning

Salons, movie theaters, gyms, churches — if you have been somewhere recently that is indoors or requires close personal contact, chances are, you have encountered a COVID liability waiver. But how enforceable are they?

Liability waivers, which stand at the intersection of torts and contract law, are a matter of state law. They have been on the rise as a contractual solution to tort problems since the 1980s, and are now common for recreational and sporting activities with higher-than-normal risks. However, no court has adjudicated on the enforceability of a COVID liability waiver yet, and the unique nature of the pandemic makes it difficult to predict how courts will rule.

Standard gym and health club waivers, operating outside the context of a pandemic, may provide insights into the enforceability of COVID waivers.

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Empty classroom.

Who’s to Blame for COVID-19 Outbreaks at Colleges and Universities?

By Sravya Chary

For many U.S. colleges and universities that opted for in-person instruction this fall, the return to campus during the COVID-19 pandemic has proven disastrous, and prompted the question: who’s to blame for these new outbreaks?

Although administrators are quick to blame student behavior, in this post, I will argue that the administrations are ultimately at fault – their negligence has put students’ health at risk and exacerbated the public health catastrophe.

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Kirkland, WA / USA - circa March 2020: Street view of the Life Care Center of Kirkland building, ground zero of the coronavirus outbreak in Kirkland.

Why We Must Hold Nursing Homes Legally Accountable for COVID-19 Outbreaks

By Laura Karas

Immunity from liability disincentivizes nursing homes from expending the time, money, effort, and resources needed to keep residents safe.

The COVID-19 pandemic has highlighted the stakes of the issue: granting legal immunity to nursing homes for COVID-related care is tantamount to leaving our most vulnerable out on the street corner.

According to data from the Center for Medicare and Medicaid Services, there have been over 216,000 confirmed COVID-19 cases and over 53,000 COVID-19 deaths among nursing home residents.  These figures are likely underestimates, as nursing homes have had to adjust to federal reporting guidelines.  Recent data indicate that deaths in nursing homes are on the rise in states with COVID-19 resurgences.

Kimberly Hall North in Windsor, Connecticut, was one of many nursing homes ravaged by COVID-19.  Reports in June of this year cited 47 deaths among its 138 residents, a death toll exceeding one-third of the nursing home’s resident population.

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Senior citizen woman in wheelchair in a nursing home.

COVID-19 and Nursing Homes: The New York State Experience

By James W. Lytle 

While New York State has generally earned high marks for its response to the COVID-19 pandemic, nagging questions continue over whether more might have been done to protect patients in nursing homes and other congregate settings — and whether some of the state’s policies even may have made matters worse.

Lessons from the New York State experience may prove helpful to those regions that have displaced New York as the epicenter of the American pandemic, and may help ensure that adequate steps are taken to protect the most frail and vulnerable among us from any resurgence of COVID-19 or from some future disease.

Although New York was among the hardest hit states, with the highest number of deaths thus far (over 32,000, more than twice as many as California), the aggressive steps taken by Governor Andrew Cuomo and his administration have been widely credited with reducing the spread of the disease in the State.

But a key, sustained criticism of the Governor’s handling of the pandemic focuses on the state’s nursing homes.

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Madison, Wisconsin / USA - April 24th, 2020: Nurses at Reopen Wisconsin Protesting against the protesters protesting safer at home order rally holding signs telling people to go home.

Great Responsibility: Navigating Moral Hazards During COVID-19

By Jacqueline Salwa

Younger people may be driving the COVID-19 pandemic in part because they perceive the costs of complying with public health measures as higher and the expected benefits as lower compared with older individuals.

”Indemnifying Precaution: Economic Insights for Regulation of a Highly Infectious Disease,” a paper recently published in the Journal of Law and the Biosciences, explores how to align costs and benefits so that individuals of all ages adhere to precautions.

Younger people tend to experience less severe symptoms from COVID-19 infection, and may be disproportionately affected by other aspects of the pandemic.  These include depression from lack of social interaction, stifled career advancement, and difficulties with providing for dependents.  Compared to younger people, older people have a greater chance of being settled down, retired, and not responsible for dependents. As a result, those that  receive the least benefit from taking precautions, and incur the greatest personal costs for abiding by these precautions, have a lack of incentive to follow precautionary public health measures. This is known, in economic terms, as a moral hazard.

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Busy Nurse's Station In Modern Hospital

Finetuning Liability Protections in the COVID-19 Emergency

By James W. Lytle 

When the scope of the COVID-19 pandemic became apparent, legal commentators, physician organizations, and health care policymakers sounded the alarm over the potential civil and criminal liabilities that practitioners and facilities might face during the emergency.

In short order, the federal government and many states enacted liability limitations.  At least two states—Maryland and Virginia—had pre-existing legislation that was triggered by the emergency, while many other states enacted or are considering new legislation to limit liability during the crisis.

While the source (executive or legislative), scope (civil or criminal), and precise terms of these liability protections varied by jurisdiction, the speed with which they were enacted was remarkable, given the intensely contentious political battles that typically ensue over medical malpractice and civil justice reform.

Predictably, at least one state has already begun to tinker and fine-tune its liability limitations. Just three months and twenty-one days after liability protections were enacted, the New York State legislature sent a bill to Governor Andrew Cuomo that curbs those protectionsThe Governor signed the bill into law on August 3rd.

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