AHLA's Speaking of Health Law
The American Health Law Association (AHLA) is the largest nonprofit, nonpartisan educational organization devoted to legal issues in the health care field with nearly 14,000 members. As part of its educational mission, AHLA's Speaking of Health Law podcasts offer thoughtful analysis and insightful commentary on the legal and policy issues affecting the health care system. AHLA is committed to ensuring equitable access to our educational content. We are continually improving the user experience for everyone and applying the relevant accessibility standards. If you experience accessibility issues, please contact accessibility@americanhealthlaw.org.
AHLA's Speaking of Health Law
COVID-19 Liability for Long Term Care Providers
On this podcast Carin Marney, Shareholder, Lane Powell, Cory Kallheim, Vice President of Legal Affairs and Social Accountability, LeadingAge, and David Thurber, Director of Litigation & Claims Management, Alliance Insurance Group, discuss liability for the long term care industry resulting from the coronavirus pandemic, including state immunity laws, PREP Act, how immunity could affect insurance premiums, and what types of claims are currently being filed. The podcast also examines what the future of LTC insurance might look like. From AHLA's Post-Acute and Long Term Services Practice Group.
New Health Law Daily Podcast Coming in January 2025
Coming in January 2025, AHLA’s popular Health Law Daily email newsletter will also be available as a daily podcast, exclusively for AHLA Premium members. Listen to all the current health law news from the major media outlets on this new podcast! Subscribe Now
Uh, hello, I am Karen Marni. I am, uh, welcoming you to our podcast where we are discussing liability immunity, um, related to Covid 19 for, uh, senior housing and long-term care providers. Um, I am an attorney with Lane Powell in Seattle, Washington. I co-chair our senior living and long-term care practice team. And with me today are Corey Cal Heim and David Thurber. Corey is the Vice, uh, president of Legal Affairs and Social Accountability with Leading Age. Corey oversees all law related issues affecting leading age members, particularly in the areas of tax exemption, fair housing and discrimination, disability law, social accountability, nonprofit governance issues, and tort law. Uh, prior to joining leading age in 2005, Cory Practice Law in Minnesota with a boutique law firm that specialized in, uh, product liability insurance and employment defense litigation, and as a partner in a small law firm focusing on elder and disability law, David is currently, David Thurber is currently the General Counsel Risk and Litigation Manager for the Alliance Insurance Group, a part of the Assured Partners Group of Insurance Brokerage Companies Alliance focuses its business and the senior care sector nationwide. David has over the years served in the role of corporate general counsel in the senior care and insurance sectors, assistant Ag for S A I F corporation in the state of Oregon. And as a trial lawyer in private practice and in, um, David's role with Alliance, he intersects with customers in all sectors of the senior housing and care continuum, um, on their litigation and operational risk issues. So thank you both for joining me today. Um, so as we kick off this conversation, maybe, uh, Corey, you could start us off with how did we get to this issue of liability immunity for senior housing and long-term care providers as we entered this COVID 19 pandemic, how did this issue of liability immunity come to the forefront? Thanks, Karen. It's, it's been a whirlwind as we look back over the last few months of the coronavirus and Covid 19 affecting our, the world and our country specifically. And so this kind of evolved, if you remember, at the beginning of March, I went back and looked, and at the beginning of March, there were only around a hundred cases, and by
Speaker 2:The end, end of April, we had reached the 1 million, uh, cases in the United States, and now we have over 2 million cases. And so as things really shut down in the middle of March, when the governors had their emergency declarations, schools closed, and CMS and C D C came out with a bunch of a flurry of guidance. I think that's when it really triggered not only long-term care, but other businesses thinking about how this is going to impact us now moving forward and in the long term. And one of the issues that came up obviously was civil liability protections and legal immunity. Um, as we anticipated, um, with our long-term care providers being on the frontline, we, we figured that out really pretty quickly. And in order to actually get through this, I think the issue of liability came up and people took a real hard look at what, what that means for our, um, providers now and moving forward with the needing some protections in order to stay in business, and then dealing with all the, the insurance claims and crisis that, um, could potentially follow from from that as well. So it really, really hit the forefront probably the end of March, and that's when things really picked up in folks' mind.
Speaker 1:Yeah. And David, as we were entering COVID 19, what, from your, from your view, from kind of an insurance industry point of view, what was kind of the state of this sector? Maybe we're talking the end of the fourth quarter of 2019, going into, you know, early 2020.
Speaker 2:Yeah, thanks, Karin. I think the market, you know, generally speaking, going into the, uh, at the end of the fourth quarter of 19 and coming into 2020 was what I would characterize as stormy the premiums across all lines of insurance, including professional liability and property insurance For this industry, uh, we're going up dramatically the senior housing clients, the insureds, uh, were facing very difficult pricing and availability of insurance. Um, at least five to six reasons why that that occurred. Uh, in the fourth quarter of 2019, and maybe even before that, a number of insurance companies had already pulled outta the insurance market for senior care, specifically for professional liability insurance. So we were entering into what the industry calls a hard market. We had a soft market for almost a decade. And, and now this kind of switch is occurring at the same time that Covid is coming into the picture. Probably a 20 to 40% premium increases for clients, uh, in the first quarter of this year. And, uh, the, the other addition in, in this context is that in addition to premiums going up, coverage is getting cut and other conditions are being placed by underwriters onto the policy. So it's becoming a very, uh, difficult time for, for this industry. Generally, you pile on that pricing problem, hard market issues with covid and the pandemic and the disruption and the costs that brings to the, to the same marketplace creates a very difficult time. You know, Lloyd's, um, has indicated that, uh, they, they predicted a hundred billion dollar exposure from covid losses to this industry that that's a big number to absorb and really impacts the key metrics for underwriters as they approach, approach the pricing. And you add on to that, the current sort of violent environment that we're in, um, it, it, it just brings additional costs and losses to the industry as a whole. So it's becoming a very difficult environment to sustain.
Speaker 1:So, so then how, how was the first, how was the first big push made to address all of these concerns? We're in a really difficult, um, insurance environment. We've got this massive pandemic putting senior housing and long-term care providers right at the forefront. Corey, maybe you can help us understand just kind of what were the, what were the steps and who got together to address this, um, real problem with potential liability?
Speaker 2:Yeah, I think, you know, when it was the end of April, early March, we saw the, the issues that arose that are still with us. I think the lack of P P e, uh, personal protective equipment and the rising cost of that as well as the testing issue. How do we test, how do we address that issue as well as the inconsistent, you know, standards and recommendations that were coming down fast and furious from cdc, cms, the, you know, the World Health Organization, even your state and local authorities. So with that fine mixture of issues, uh, we, we got together as a group of, uh, long-term care associations, leading age, American Healthcare Association, national Center of Assisted Living, um, our gen and the American Senior Housing Association. And we sat down and took a look at what needed to be done to address the civil liability protections. And, you know, first off, on the federal level, there was the prep Act. And so the HHS Secretary Azar declared, um, the Public Readiness and Emergency Preparedness Act, or the Prep Act. Um, he made a declaration of emergency, um, in the middle of March. And the, the, the issue that we had with that is we sought some clarification to see if that actually applies to long-term care providers. Uh, the prep Act, uh, was enacted years ago to deal with some of these pandemic threats, but it really focused on, uh, drug and device manufacturers and hospitals as they treated these, um, types of pandemics. And so we said, look, thi this time, the nursing homes assisted living and other long-term care providers are right on the forefront with the hospitals and drug manufacturers and the like. And so are we going to be covered under the Prep Act? Uh, we wrote a letter to Secretary Azar in late March and, um, asking for some clarification, realizing that that may not be the case. We went and looked at what could we do on the state level since most of the, um, medical malpractice or tort law claims are state-based claims and brought in the state level. And we realized that the states had to, to, uh, play a role in this. And so we went, uh, state by state looking to see what type of availabilities there was to get some civil liability protections. And there were basically three ways to do it. The first being an executive order by the governor, um, state legislation, or if there was existing statutory, um, protections that sprung when an emergency declaration was pr um, declared. And so each state, um, had their unique challenges on how you could approach this. And I think that, uh, based on that, that's why we took a look at what was maybe available, what potentially could be available, um, and started kind of picking off and looking at, uh, state by state what was possible. And then having our state organizations work with, with other, you know, specifically healthcare providers, including the hospital associations, the, the, uh, medical, uh, ama, the nurses associations, and like to kind of come up with ideas on how to attack that and, and be on a, on a coalition level, on a present, a, um, united front when we face these issues. And then later on we saw that, you know, as things reopened, we're looking for general business protections, um, throughout the economy as well. And so that's, that's also come into play as we moved along.
Speaker 1:And so, as you were looking state by state, what, what did you find? Were you finding some trends? Were you finding it was inconsistent state by state? What did you see nationally?
Speaker 2:It was inconsistent and some states that had, where the governors had the ability to issue an executive order, um, providing some protections, some governors were willing to do that, we saw early on since, uh, a lot of stuff hit in the northeast, New York, New Jersey and Connecticut specifically, we're able to address this through some executive orders, but other governors were really hesitant to do that. And we're still, um, seeing that today as there's requests into numerous governors who have decided not to issue any executive orders regarding civil liability protections. And I think that's, even when you move on to the legislative side, uh, the, one of the issues that we ran into were a lot of these state legislatures were not in session. And so if we wanted to pass any legislation, uh, we had to figure out when these state legislatures were gonna be, uh, coming back into session. And then you're dealing with the political climate, uh, uh, state by state basis, which, uh, is unique to each state, as you know, and it is difficult to see which states were going to, uh, entertain, uh, civil liability protections. And, um, in addition how far, um, they would go, you know? And were you also, go
Speaker 1:Ahead. Yeah, yeah,
Speaker 2:Just add to that, you know, this whole concept of immunity gets dropped into the context of court reform generally. Mm-hmm.<affirmative> and tort reform generally across the country, as you well know, um, has been difficult.<laugh> rarely do we find national consensus around that it's been difficult. And the same is true at the state level. So this issue is, is part of a larger conversation. It's always been somewhat difficult, uh, to get, get through the legislatures, and certainly in some states it's even more difficult, like in Oregon, for example.
Speaker 1:And are both of you, you know, w what I've seen with the legis with this legislation is in many states there are carve outs. So there may be some protection for, from, uh, liability for negligence, but there's not protection for gross negligence or neglect and the like. And so given that there's kind of these carve outs, what do, what do you think that's gonna mean for litigation going forward?
Speaker 2:Well, I can, uh, respond to that. I think the, you're right, the general, the comments to thread through these pieces of legislation that do exist are, are the general negligence protection from general negligence, but exclude the, the, the recklessness, gross negligence or, or wanting, uh, behaviors by healthcare providers. Those are all still part of the, you know, liability exposure, if you will, in many of these lawsuits that, that are filed now, and that will be filed, they will include claims for, uh, gross negligence and intentional behaviors probably in order to get around any immunity statutes that do exist. So that portion, those allegations of any lawsuit would likely still be allowed to proceed forward. Um, and so that would it, it maybe, yes, and maybe no is the answer with regard to whether these, uh, immune statutes will really stem the tide of, of litigation in, in this environment. Um, the upshot of it is though, when they make those allegations, most insurance policies exclude that kind of coverage. So what that means is, on the backside of this immunity issue, is the fact that insurance companies will not cover claims for those kinds of gross wanting and, um, intentional behaviors or reckless behaviors. So there's no deep pocket, if you will, from the insurance policy for plaintiffs of lawyers to chase around. So that may be the unintended benefit, and that may be a basis upon which these statutes in fact do stem some of the plaintiff's attacks on the industry.
Speaker 1:Mm-hmm.<affirmative> and David, have you Yeah, go ahead.
Speaker 2:Well, I'm just gonna follow up on what, uh, David said, and when we approached the idea of civil liability protections, what we are saying is, look, we are in a unprecedented time, and our providers are doing the best they can faced with the PPE shortages, staffing issues, the lack of testing, and then just frankly, trying to figure out how to comply with the inconsistent standards, the ever-changing standards, the, you know, the science was changing on a weekly basis on how we thought this was transmissible and all of those issues. And what we were saying is, look, we want protections from just trying to do our jobs and the general negligence claims. We know that, um, trying to go and get something passed that's gonna exclude any and all claims was just a non-starter. And so, as David mentioned, you know, you've got the carve outs for gross negligence and willful and want and conduct, and if somebody's doing something willful want, they should be held, um, responsible for that. And so that was always our approach when looking at that. And that's a much more reasonable approach, um, for the legislatures, for the governors and all, all all those folks, when you're dealing with this unprecedented situation, they helps'em better understand of what's happening on the ground and what we're actually seeking. And we also made sure we did not confuse us with tort reform because the, the civil liability protections folks are seeking are time limited to during this pandemic, and specifically related to, um, issues regarding, um, care and, and, um, meeting standards during the pandemic are related to treating, um, covid 19 cases. And so I think that that's, um, that's the put, that's the argument against the pushback that you're seeking these long-term tort reform, um, systemic changes, which this isn't, this is a time limited, um, to this, this pandemic. Now, I just quickly, Karen, I just wanted to back stop that. I think, I think in the, in the industry, 98% of the, of the, of the companies and the people in them are doing the best they can in a good faith effort to convince to help their residents and, and their people. And so this immunity stuff is really, in my view, helped to, you know, the old adage of no good deed goes unpunished. Mm-hmm.<affirmative> is, is true here, I think in the sense that everybody's doing their darnedest to, to take care of people in an, in an ever-changing environment as Corey is adequately described. And, and, and a lot of it's just an unknown territory as well. How do we do this? Um, and our is the equipment and the, and the technology available to, to really handle this effectively. So it's, uh, the, I immunities, uh, approaches is absolutely necessary. And we'll maybe get to that later when you talk about the future of the industry. Um, yeah, if I could comment real quickly, Karin, the other piece of this puzzle with regard to immunity that I think you may have touched upon is how will immunity affect pricing of insurance premiums? Is that going to have a benefit to them? And, and maybe yes. Again, my answer, maybe yes, maybe no, and probably no more likely no. Um, most of these insurance companies are underwriters are looking out the rear view mirror. They're, they're looking at how the environment has transpired in order to affect future pricing. So I think they're gonna wait to see how any of these immunity statutes and changes really affect the litigation landscape before they begin to give any credits on an underwriting basis, uh, for the, for these immunity bills. We'll see how it plays out.
Speaker 1:Well, have you seen David Insurers taking a position on, um, COVID 19 claims? Um, so far, I mean, maybe there's, um, claims on the business side, maybe there's claims on the personal injury or wrongful death side, kind of what, what, what's, what's that sector been doing so far?
Speaker 2:Well, across the landscape, there's two basic buckets in which claims are being filed. The first one is the, is the, which is the larger bucket of claims, is the, on their property claims. It's only inside the property claimant. You're gonna find coverage for lost business income, which every one of these properties is spacing along with added expenses cause of a crisis or because of a loss. So typically these property policies require some actual, you know, typical crisis like a flood or a fire before they trigger the policy provisions. Um, and so, and, and then they have to have a loss to the building bricks and sticks of the facility that really generate the loss of business income or the edited expenses. And so the questions become, do we have those kinds of events in this covid environment? There are several, uh, class action lawsuits currently underway around the country to address those questions. And we'll get, we'll, we'll know more as those unfold at this point, but we, we have filed a lot of claims and continue to file lots of claims in this bucket of property insurance for, for loss business income. The carrier's response to them so far has been somewhat, um, uncertain. Uh, some have actually out not denied the claim because the policy language excludes virus related claims. Uh, others have dis have, have denied claims because there's been no typical loss, fire, wind, flood, et cetera. Um, and the, and, and having a hard time directly relating to losses, if you will, to, to those kinds of experiences. So we'll see how those play out. The second bucket I mentioned is professional liability claims. And we have filed a number of these as well. These are filed as what we call notice only claims because the onslaught of plaintiff's claims litigation filings hasn't yet sort of taken off, but where you have a, a covid positive resident who's died, for example, we have some specificity there. And so we are filing claims where we have more specificity to a situation, uh, and we're also filing some claims where we have a, a pandemic breakout in a facility where we know that there's likely to be some claim arising from that circumstance. Mm-hmm.<affirmative>, again, in the PL environment on the PL policies, there's lots of ambiguity. Um, most policies will exclude virus related claims. Um, so we're gonna have to wait and see how these play out and how the carriers respond. At this point. They're taking no wait and see attitude and not aware of any actual notice only claims that have been out, not rejected by the carrier, but they are to a carrier asking more and very specific questions.
Speaker 1:Yeah. And I guess it's, it, it will depend on how the claim is, is presented. Is it a per just a straight professional negligence claim, correct. Right, correct. Versus a covid specific claim. Correct.
Speaker 2:Yeah. I think that's the best way to probably position the claim in order to have an at least, least an argument to, to sustain coverage.
Speaker 1:Well, and just in terms of litigation, there's always just so there's, there's gonna be so many questions. For example, causation. I mean, yeah, causation is gonna be a big unknown mm-hmm.<affirmative>, um, absolutely. And I would,
Speaker 2:Yeah, it will be where, where did it come from and, and what makes it even more difficult now as we go forward, you know, as we go at, at the front end of the parade, people were coming and going from properties, right. And so we didn't know where the covid was coming from, to your point. And now we're on the back end of the, well, during the middle of the crisis, then we were, we locked down, nobody could come and go from the properties for all practical purposes, and now is open
Speaker 1:Up the doors still yet it was still ongoing.
Speaker 2:Yeah, exactly. So it's kind of, it's an invisible kind of disease that, that just does not have a a hundred percent preventable circumstance or environment in which you can prevent this disease. So you do your best and you if all of this, the requirements of the CDC and local health officials and, and then forced your processes and move forward.
Speaker 1:Well, and what do you think about the other issue, you know, setting causation aside, the other issue is standard of care and what, what is the standard of care?
Speaker 2:Yeah. I think, you know, up until now, uh, real quickly up until now, uh, pre covid the standard of care focused on the actual care, clinical care, right? Mm-hmm.<affirmative>, and I think now that the, there's been an evolving standard of care since, uh, probably February or March, uh, which affects all of the things that the facilities have been asked to do by the CDC and by local health officials with regard to how to manage and mitigate the co spread of covid 19. So as, as facilities engaged, embraced those, um, requirements, they're en they're engaging and embracing what's going to be an additional layer or level, in my opinion, of the standard of care. So we're gonna get lots of the, you know, questions and, and requests for discovery that, that ask, when did you do these things? What did you do to enforce those things? And those things being the CDC requirements, local health official requirements in addition to your own infectious disease program mm-hmm.<affirmative>. So I think that's gonna become the new level of care that, that folks are gonna have to focus on. And I think early on, we advised our clients that you need to document all that you're doing in this, in this arena very, very carefully. And at least that becomes your, your first line of defense, both for regulators who want to come in and jump on you for, for compliance. Uh, and, and the plaintiff layers,
Speaker 1:Ryan, everything you were requesting and not able to get, you know, everything you were, were trying to do. Correct. You weren't able to get equipment and testing and those kinds of things,
Speaker 2:Right?
Speaker 1:Yes. Yeah. So for both of you, where, where are we now in terms of, um, ongoing efforts to, to get more liability immunity? What are you hearing from, from, um, senior housing providers?
Speaker 2:You know, where we are, uh, on the state level is there's still a lot of big states that don't have any protections and efforts are still ongoing. And some of those include California, Florida. Um, there's some ongoing efforts in Ohio specifically where I think that they're close to, um, actually having the governor sign something. But there are still a lot of efforts being made. And what we've seen too is when these are originally enacted, what they have typically done is they've covered some of the licensed settings. So when these were enacted, a lot of hospitals were covered and then nursing homes, and we had, uh, urged them to include the whole continuum of care, including assisted living, you know, home health services, hospice, and even down to senior housing as they were all providing some sort of protection, especially to this vulnerable population. And so even when executive orders or statutes were passed, they may not be covering that whole continuum. So I think there's continued efforts to actually fix executive orders, fix statutory, um, and actions that have gone through and or, um, really make a concerned effort on how to, how to approach those other, um, provider types that are doing a lot of the same things that are kind of stuck in that limbo of not being regulated. And what what makes that important is because as, as was mentioned before, you're getting these conflicting guidance from CDC state officials, even local officials, and as a nursing home, it's pretty easy to understand that if you give a guidance from CMS that you need to follow it. Um, if it's assisted living in this kind of gray area, you've got some recommendations from the cdc, which are only quote unquote recommendations. And so is that the new standard of care? You may have something from the state that will make either recommendations or guidance. And so a lot of these other provider types, uh, were stuck in this limbo of which guidance do we actually follow? And they were issuing, the CDC, for example, issued some broad guidance for, for quote unquote retirement communities. And so that included a big, big broad gamut for different provider types. And so I think that's why, um, that made this even trickier to go back and see which protections and why we needed it for, for providers across the continuum. They're all in a unique little, um, situation, but they're struggling to figure out exactly what that standard of care is gonna be and how that has changed and morphed over the last couple of months.
Speaker 1:And, and, and while we're still working on that, David, are you seeing the, what are you hearing from the insurance side? Is it, it sounds like it's just, it's retracting or, or becoming kind of, we're kind of at a stalemate, is what I'm hearing.
Speaker 2:Well, the industry in the facilities that I communicate with almost on a daily basis are, uh, I hope I'm responsive to your question, are under stress, period. Mm-hmm.<affirmative>, and both, they're, they're under stress, not just from this patient care side and, and managing the standard, this evolving standard that Corey and I have spoken to, but they've got issues under osha, they have issues under worker's comp, they have issues with employee matters. You know, the E E O C has been involved cuz there's an evolution, if you will, over there with, on that side of the house for how to handle employees who become ill or not. How do you handle employees who are coming and going from the facility? What if the employees just gone to the big pool party at the beach and, and now they're coming back to work? H how do we deal with that? Mm-hmm.<affirmative>, what if the employee works for another facility and they're coming back to our property? How do we deal with that? Uh, how do we handle testing? We test today and it's, it's not positive, but we test again tomorrow and this is an evolving kind of condition. So it's, it's so fluid, it makes it very difficult on a day-to-day basis to, to navigate. And I think they're doing the best they can with, with what they have in terms of the rules and the guidelines they've been given, um, and the leadership that, that they have in the facility. So not to mention the fact that number of employees are not coming to work, um, yeah, because they're either fearful or they're, they're, they've got the disease themselves. And so we're now staffing issues are, are our issue as well. So it's a complex, comprehensive set of issues for these properties to deal with. You know what, I think, um, to chime in quick too, I think it's only exacerbated by the reopening of many of these states. And so it's, summertime has kind of hit, as David mentioned, people want to go on a vacation and in the summer they want to go to the beach or some other, um, locale where there's gonna be a lot of other people. And so this is, makes it even trickier how to navigate. And with the uncertainty of when that next wave is gonna hit is their possibility of, um, the, you know, society closing up again. And then at the same time, most of the providers are still, um, not allowing visitors. And that's taking a real toll not only on the seniors themselves, but on the family members. Um, and I think that's gonna be even more tension moving forward as people are kind of rearing and ready to go to reopen. Um, even though, you know, the numbers as we see are consistent and or rising in certain states, this is gonna be really interesting to see how that tension plays out. Yeah. I just wanna jump on Corey's comment. You know, as we reopened, we had conflict with families at the front end of the parade cause people didn't like the idea that there were rules saying, I can't come see my mom. And, and I get that. And we all understand that the same issues happening now that people see this notion that we're reopening and they don't recognize that it's in phases and they don't recognize that senior housing is the, you know, comprises almost 60% of all the, the illnesses and deaths in this environment in the country. It's a highly vulnerable environment, comorbidities of all these residents. So the idea that we have to stay locked down isn't being met very well by families today. And, and one of the issues I deal with routinely with clients is how do we handle the angry family who thinks they should be able to come and go now?
Speaker 1:Oh, that's so true.
Speaker 2:And navigating those communications is huge. And as you know, anger between families and facilities often fuels and generates litigation. So it's a<laugh> it's a very difficult spot to be in.
Speaker 1:It's really true. At the beginning we were seeing, uh, families, you know, demanding that everybody be locked down and the very, very beginning of the pandemic. And of course some residents, particularly in um, assisted living and independent living were resistant to that. And now, and now we're hearing from families, how can you keep this, how can you keep anybody locked down? Everything should be reopening. And we're still though, I mean, communities are still so vulnerable. So it's a real, it's a real problem. It's just, you know, we're just different things on different ends.
Speaker 2:You know, one of the things I'll comment quickly on, I know we don't have much time, but one of the things about our country general is we're, we're darn resilient. We find ways through our crises, and we've had numbers of them over the decade, right? Decades. And, and I think in our own industry, we, uh, what's been exciting for me to see is that a lot of our clients have that same level of creativity and resiliency. And I'm just amazed at some of the creative solutions people have had to this family visitation concept. One property, for example, took their, they had a, a relatively larger entryway and they cordoned off with plexiglass and they allowed four visitation like they might see in a hospital, maybe so people could see each other at least in an immediate environment and speak to each other. And so it's been kind of cool to see some of the things folks have done to try to solve these problems.
Speaker 1:Yeah. Yeah. So Corey, kind of moving forward this picture, what do we think we're gonna see in terms of further efforts for liability, immunity and protection?
Speaker 2:You know, I think moving forward, and it's kind of in the, the press and the news right now, um, is there's a push on the federal level to address this in the next, uh, package dealing with the next relief package, dealing with the, the covid 19. And on the federal level, they're approaching it more as a broad, uh, protections for businesses. And certainly we're interested in making sure that, um, long-term care providers and or healthcare providers are included in that. And so I think you'll see that, um, that that's gonna come to a head here probably in July, I think is the timing that we're looking at. Um, realistically now, uh, as the, um, the, the house has already passed the bill, but the Senate has not, um, taken up a bill yet for the next relief package. But I think we'll see that probably in July. Um, I think they're gonna take a look to see how reopening is going, how the economy looks, and take a lot of, uh, other things into consideration. And the, the republicans in the Senate have, have really, uh, taken the, the liability issue as, um, an important one. So we'll see how that, um, that shakes out. I know that there's a lot of different groups, um, from the retail industry, the, um, hotel industry, general restaurant industry, as everything reopens, everybody's a little leery on how this is gonna look and how it's gonna work. And so I think the broad business protections for all types of businesses is gonna be a really key to having the next, uh, relief package passed. And so we're, we're currently working and making sure that large term care providers will be included in that as well as senior housing and all other protections across the continuum. So that's where we're at. I think on the federal level, I think state by state will see where things progress as well. I think we'll see some additional action, especially as legislatures come back into session more, um, in the summer and fall. But I don't think that we'll see, uh, civil liability protections enacted or passed in all states for certain, um, we're about half of the states have looked at it right now and passed something or have an executive order, um, and then we may get a handful more moving forward. So that's why I think the federal, um, protections are addressing these issues is so important. You know, if I can just piggyback on that, Karen, I, I just think from what I see in the industry and watching our clients across the country, and we've already touched upon it, you know, they're, they've been hit with these extraordinary costs to, to, to deal with the covid circumstances to start with. They had a hard market on insurance premiums coming into that environment that's just gonna continue. And it's going to get, it's gonna be exacerbated by these conditions and by the violence that we're having to, you know, now in our country. And, um, so I think that the immunity in the push to get immunity at the federal level is huge because it's gonna be, and, and then you can pile out the end, the potential lawsuits these same companies are gonna face potentially without any insurance in place makes it a dire circumstance in my opinion. And I think that, um, without some protections from the federal level, we're not gonna see the same number of companies providing senior care going forward. And the juxtaposition of that is against a growing senior population who need these services. So it is a critical intersection.
Speaker 1:Right. And, and there you might have mentioned too, and I think the insurance companies, what we're seeing is we're getting notices that moving forward there will be no coverage for covid 19 claims. However, whatever that exactly means, maybe you can help us understand that
Speaker 2:A little bit. Yeah, that's exactly right. Con you know, I mentioned earlier some of the changes conditions were changing within the policies in addition to increasing premiums. So that is one of the unequivocal pieces that we now know that going forward, no professional liability insurance policy or property policy will include loss for or related to covid 19, which makes it all the more important that if you have a claim that you think may be possibly under a policy that you now have, you should at least get it on record with the carrier so you have something to, to argue about. The other piece that's in the puzzle going forward for an underwriting criteria that we're hearing about is that one of the conditions will be have you as an insurer or have you as an, as an employer, as a company ever been without insurance or had your insurance stopped and, uh, have you had continuous insurance is one, is the question. And that poses a big problem because there may be some circumstances under the current environment where they can't afford the insurance, which means they wouldn't be able to buy it in the future because they haven't had continuity of coverage. So it's a difficult space to deal with, you know, and one of our, um, one of our concerns cuz we're hearing as David mentioned, these same concerns and issues as providers are entering their renewal period. And I don't know if David knows the answer, but I think one of the things that we're concerned with is the sheer number of insurers in the long-term care space is gonna shrink again. And that just puts the squeeze on everybody. Um, as David mentioned, going without insurance and, and facing that crisis that we, we we faced, you know, the early two thousands, um, and you add that on to all of the, the increased cost dealing with the P P E and potential testing, that is putting a huge, huge burden on the providers. And, you know, they, they wanna make it through this, but it's gonna be difficult for all of them to do that. No, you're right. Corey and I mentioned earlier, they're coming into the fourth quarter of 2019, we already had five or six insurance companies, principal players may made up 30% of the market, maybe 40% of the market who pulled out. They, they're no, they're no longer writing insurance in this industry. So that left the pool much smaller. And, and you're correct. As we move through these kinds of times, more of them will begin to retrench, uh, and or those who who elect to stay are gonna get their pound of flesh in premiums in order to stay in the market and they're gonna change their coverage conditions as they stay in the market. So, um, it will be difficult. Some states have actually, through their insurance commissioners have placed some restrictions on what carriers can do. I e can't non-renew because of this. Um, and, and, and if, and you have longer periods of time in which to file a claim, for example, those are nice to have, but they're not. But we need to have more. And, uh, I think on the industry itself, it's gonna be difficult going forward because of the retrenchment of the marketplace itself, insurance market.
Speaker 1:So, so what are some parting thoughts of each of you as we're starting to reopen? Things are still really stormy to use David's word. Um, we're seeing retraction, um, on the insurance side and we're, we're facing still a lot of unknowns. What do you think would, what, what is some advice, what do you think needs to happen moving forward in terms of just, um, liability protection?
Speaker 2:Well, I'll jump in first square if that's okay. I think, um, every, everybody listening, every company that we deal with, and every time I'm in front of owners and operators is to double down on all of the internal infectious disease practices, both internal that you already had, as well as those coming in from the CDC and the, um, local public health officials. And we've already spoken about those. But I think you've got to be doing those things. You've got to be doubling down on documenting all that you're doing and you've gotta be documenting your enforceability of those protocols that you're implementing. I think from a regulatory perspective, I would like to see the regulators become more of a partner with our industry and our clients in this time, rather than approaching them with a gotcha mentality. Yeah. Um, it is difficult out there. And we need the, we need help from everybody. We don't need more people pressing in to be critical. We need to help find solutions and support each other. Oh, agree. So, and then an increase in production of PPE and, and, uh, other kinds of equipment that these, these facilities need. Yeah, I would echo that is, you know, we we're talking to providers and getting on calls and talking to legislatures, it's remarkable that we're still talking about PPE issues three, four months later and, and we're still talking about it. Um, and you know, that's one of the we need to address immediately. Oh, go ahead. Fine.
Speaker 1:Yeah. And now, and now some states are just now mandating testing within, uh, the senior living environment.
Speaker 2:Yeah. And, and that raises interesting too.
Speaker 1:Yeah,
Speaker 2:Go ahead. Yeah, you're right Corey, that raises a whole new question. It's, it's appropriate and right thing to do perhaps, but who's paying for it and how often do we do it And mm-hmm.<affirmative>, all those questions are swirling. So that's an added cost if you want to the communities, right. You test for hundred bucks a piece. Yeah, I mean, we could talk for, we could spend a whole hour talking about testing<laugh> and I think one of the, the things that we go round and round on it all the time is that does it make sense, you know, with mandatory testing and you've got some hotspots where it makes sense to retest and test continually, but if you've got other places where there hasn't been a lot of, um, cases, or there aren't any active cases, then do we want to, uh, redirect resources, um, and mandates to other places where it's more needed? So, um, that's a struggle I think that we'll deal with for a while, but that certainly needs to be addressed very quickly. And as you know, moving forward, as David mentioned, you know, we are resilient and, um, long-term care providers are really good at making do with what they have and being creative. But at the same time, I think there's this sense of, of dread in what is the new normal, what does that look like and the apprehension of, of how that looks moving forward. And this gives us the opportunity as we're dealing with this and we're at kind of the bottom of, of this pandemic and looking as our, our forward, our way out of this to look at how do we really have some meaningful regulatory reform and or changes to make it more of a collaborative approach versus a punitive approach. Cause the punitive approach absolutely has beat providers bound for decades now, and it hasn't been successful. And I think that this gives us an opportunity to pause and hopefully the attention of regulators on the federal level and even states and, um, and the legislators at the, at the federal level to really take a step back and look to how to make something positive out of this, this very, very difficult, uh, unprecedented time. Couldn't, couldn't agree more, Corey, spot on.
Speaker 1:Yeah. And you know, as you both have pointed out today, I mean these, these providers have worked so, so hard, um, over these last few months to really deal with this, uh, unknown and really dangerous situation and, and, and it really is some time for some, for some support. Um, so it sounds like Corey we're gonna see some more action or hopefully expect some things at the federal level, um, that may be helpful.
Speaker 2:Yeah, I certainly hope so. And that's what we're pushing for is with a bunch of other organizations, you know, and then unfortunately, as we talked about before, if we don't get some of these protections, we're gonna find fewer providers at a time when the demographics, um, are pointing to where we need more providers and more senior op, senior care options mm-hmm.<affirmative>. And so that's what's, what's really striking is we're at that, that crux where it can make or break and or then we'll definitely, um, change the industry moving forward. Mm-hmm.<affirmative>, I think that's right. I agree too. You know, one thing I'll just comment as we part ways, one of the other things that's created going forward is that we've had two clients, uh, now who have we recommended early on and, and it was a great article in the Wall Street Journal on it as well recently about if you have the capacity to set up a separate free-standing covid facility, not inside a building, but a whole building, or you're, or you're a developer and you're building buildings, COVID is here to stay mm-hmm.<affirmative> mm-hmm.<affirmative>. So why not develop an environment where you have unique and exclusive covid care in a standalone building to help mitigate the exposure inside a normal assisted living property or skilled nursing property and staff up for it and train for it. And we have two clients know I've done that and they're fully occupied. So it's an idea that I think whose time is coming. Mm-hmm.
Speaker 1:<affirmative>, right? Yep. I'm saying that too. Well, thank you both. Really appreciate the conversation today.
Speaker 2:Thank you. Appreciate, thank you. My pleasure.