CQ Homeland Security
November 1, 2006
Matthew E. Berger
Republican senators are working on a bill that would give incentives to businesses and health care providers to plan for an outbreak of pandemic flu by offering limited liability protection to those that prepare.
The draft bill being put together by Senate Budget Chairman Judd Gregg of New Hampshire and his Republican colleagues would allow health care facilities with certified pandemic preparedness plans to be immune from litigation for a failure to adequately treat patients during an outbreak.
Businesses would also be exempt from liability for any protective equipment they provide to employees, as long as they had a certified preparedness plan.
The draft legislation would also disallow pandemic-related lawsuits to be brought during the outbreak, or for three months afterward, to allow time for businesses to get back up to speed.
The draft legislation, dubbed the "Y-Flu-K Act," builds on a law that was used to push businesses to tackle the year 2000 computer problem. At that time, legislation shielded companies that worked to fix problems on their own systems from lawsuits if they experienced a break in service despite the efforts. The law is credited in part with pushing businesses toward taking responsibility for the computer problem. No serious service disruptions occurred despite some computers malfunctioning on Jan. 1, 2000.
The "Y-Flu-K" bill is still being worked on by congressional aides, and if it is introduced, it will be in the 110th Congress.
There is a mixed record on business preparedness for pandemics. While some sectors are receiving high marks for planning, others, including the health care sector, are being criticized for not doing enough. In turn, businesses are looking for the government to push them toward compliance.
The Financial Services Roundtable, representing 100 of the country’s largest financial services companies, called on DHS Wednesday to adopt a system of monitoring businesses’ pandemic planning and simulations. Robert Litan, vice president of research and policy at the Kauffman Foundation, said the department could issue spot checks on businesses or release pandemic reports to the public.
Business leaders say they want to help but are concerned about ramifications. If companies provide respirators to employees or serve as a vaccination center in their community, they could be in the chain of liability.
"At the end of the day, the company is just trying to do the right thing," said Andrew Howell, vice president of homeland security policy at the U.S. Chamber of Commerce.
The Senate bill would address a rising concern about hospital readiness for a pandemic. Health care facilities are likely to see a massive surge if and when a pandemic strikes, from both the sick and the "worried well."
Alfonso Martinez-Fonts, assistant secretary of Homeland Security for the Private Sector Office, told business leaders last week that a so-called good Samaritan law is needed so companies can help the government during a crisis without fear of liability.
"This is a big issue we need to address to ensure that the private sector is willing to engage," Martinez-Fontes said at the Oct. 23 CQ Forum on homeland security.
But what specific exemptions need to be crafted remains unclear.
"Companies would love to be engaged by the government in this conversation," Howell said, "but I haven’t seen the government come forward and say, this is what we need and could you provide it?"
Likewise, Peggy Binzer, a former Senate Republican adviser, said businesses are not taking the initiative.
"If there are true legal barriers, folks haven’t been forthcoming as to what they are," said Binzer, now a partner at McKenna, Long and Aldridge.
Several pieces of legislation were introduced in the Senate last year (S 1747, S 1437) that would limit the liability of volunteers and those who provide goods and services during a disaster. But the bills did not gain traction.
Matthew E. Berger can be reached at mberger@cq.com.
Source: CQ Homeland Security