This article originally published on McKnight’s website on January 7, 2015.
by Rafael Haciski, ESQ.
In 1986, it was AIDS. In 2002, it was SARS. In 2006, it was Swine Flu. In 2009, it was Avian Flu. In 2014, it was Ebola.The rapid spread of infectious disease through human populations across a large region is not a new problem. But unfortunately, planning for or contemplating the risks associated with pandemics often becomes forgotten after each crisis.Knowing that multiple people contracted Ebola this year in the United States and two died from the virus, employers are rightfully pondering many “what if?” questions. While it seems like we are out of the woods at the moment, long-term care facilities need to be ready the next time a pandemic such as this occurs. They need to make sure they have taken all the necessary steps so they are prepared to deal with a crisis such as this before, during and after it occurs. You may be surprised, however, at some of the risk management questions and concerns that this recent Ebola pandemic has raised.With this in mind, below are a few recommendations to get your organization properly positioned in the event of an unexpected outbreak.
The best first step for reducing the risks associated with a pandemic is to be aware of and implement the Centers for Disease Control and Prevention’s procedures, in an attempt to prevent any risk of loss from occurring in the first instance. However, several of the CDC recommendations should also be re-examined, reviewed, and monitored in the midst of any pandemic crisis.Below are 10 of the many useful detection, protection and response measures the CDC recommends:
- Review the risk, signs and symptoms of the pandemic and make sure all of your front-line staff is capable of identifying them
- Designate points of contact within your facility who are responsible for communicating with state and local health officials
- Review the CDC case definition for guidance on who meets the criteria for being afflicted with the disease and required next steps
- Provide education and training to staff on sick leave policies
- Ensure that telephone and medical consultation access is readily available
- Review plans and procedures and test them to make sure the sharing of relevant health data between key stakeholders is a quick and smooth process
- Make sure administrators are familiar with responsibilities during a public health emergency
- Identify a communications/public information officer to develop appropriate internal messaging (i.e., signage, literature, etc.)
- Maintain awareness of reported case locations, travel restrictions and public health advisories
- Incorporate information about the pandemic in educational activities and meetings
Taking it One Step Further
While CDC procedures are the best first step to reducing the chances of your facility encountering a pandemic, you must also think about the following in the event that you are unable to prevent the infection:
- Personnel risk, including injury to employees and potential employment practices issues
- Protecting patients, visitors and vendors from contracting the disease
- Libel or slander of an employee or patient
- Employees alleging discrimination after being provided a paid leave because they suspected that they may have come into contact with a person who was at risk of becoming infected
- Termination of an employee for refusing to treat an infected patient or resident
- Interruption of business operations causing a loss of income
- Evacuation expenses, disinfection costs and, perhaps, public relations issues
These risks of loss go well-beyond what the majority may be thinking about with respect to pandemic loss mitigation but they should be taken into consideration.
To evaluate your ability to manage these risks, we have two main suggestions. Speak with your employment counsel, as well as your insurance broker, well in advance of and during any pandemic crisis.
With respect to relying on your insurance policies under these various circumstances, evaluating your existing coverage and identifying methods to enhance it prior to an incident occurring is vital.
For example, if your organization is faced with liability from allegedly not controlling or containing contact between patients/residents of your facility with visitors or vendors, the applicable insurance policies to evaluate for coverage include your General and Professional Liability, Pollution Liability, and your Directors and Officers Liability policies. Depending on how the exposure manifests itself (e.g., through soiled linens that were being disposed of or through exchange of bodily fluids), and whether or not this particular pandemic involves a virus as opposed to a bacteria, coverage may not be provided. The presence of “pollution” or “hazardous waste” exclusions, or limitations on affirmative “pollution” coverage with respect to the definition of pollutant not being sufficiently broad to include a virus or bacteria could be problematic.
The same applies to an interruption in business operations. Most typical property insurance policies will not cover a loss of revenue if your company has to suspend operations because of a pandemic. The reason for this is because these events are not a covered cause of loss and therefore do not trigger the policy. Even long-term care facilities that sometimes have policies that provide limited interruption coverage may be vulnerable in ways they don’t realize.
There are new limited specialty products that might be available in niche markets to cover business interruption because of the need that Ebola created. However, some insurance carriers are seeing the potential losses that could result from these kinds of pandemics and are excluding coverage of them going forward.
Determining whether or not your long-term care facility is protected from the risks associated with the outbreak of a pandemic like Ebola can be as complex as the virus itself. But being aware of and implementing CDC recommendations, as well as reviewing and enhancing your coverage options are the best ways to be ready for a pandemic before, during and after it occurs.