Federal Protections Against Liability for Businesses Combatting COVID-19
Federal emergency authorities activated to aid in combatting the COVID-19 pandemic incorporate important protections for the businesses and individuals who are part of the nation’s response to the current public health emergency. The protections include immunities from tort liability, antitrust liability and contract liability for actions like manufacture of products to diagnose and treat COVID-19, supply of those products and the materials used to make them, volunteering professional health care services and sanctions for certain physician self-referrals.
Specifically, Secretary of Health and Human Services (HHS) Alex Azar’s declaration of a public health emergency under the Public Readiness and Emergency Preparedness (PREP) Act activated that Act’s immunities. President Trump’s invocation of the Defense Production Act (DPA) makes available immunities for actions based on the DPA. The Coronavirus Aid, Relief and Economic Security (CARES) Act stimulus package broadens the scope of immunity under the PREP Act as well as grants protection to health care professionals volunteering care. HHS has invoked its waiver authority under the Federal Physician Self-Referral Law (the “Stark Law”) to allow certain physician self-referral arrangements that ordinarily would be subject to sanctions. And, relatedly, the HHS Office of Inspector General (OIG) has stated that it will not seek administrative sanctions under the Anti-Kickback Statute based on the allowed arrangements.
This article describes each of these authorities and how its protections apply during the COVID-19 emergency. It concludes by recognizing the possibility of additional protections as the federal and state governments continue to address to the public health crisis.
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