Cares Act – Protections For Volunteer Health Care Professionals

The Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”; Pub. L. 116-136) creates a broad limitation on liability for health care professionals volunteering to assist with the COVID-19 response. Specifically, while the public health emergency declared by the Secretary of Health and Human Services remains in effect, volunteer health care professionals will not be liable under Federal or State laws for any harm caused by them while providing health care services.

These provisions are intended to encourage health care professionals to volunteer to provide health care services in the areas of the country most affected by the pandemic without needing to first obtain professional liability insurance or worry about being sued without having coverage. Also, for those health care professionals volunteering in their own communities, these protections provide immunity for those professionals if the insufficiency of supplies or equipment due to the pandemic affects their ability to meet the normal standard of care applicable to the provision of health care services. 

A “volunteer health care professional” is defined as any individual who is licensed, registered, or certified under Federal or State law to provide health care services and who is volunteering to furnish the services as part of the pandemic response. In order to qualify for the limitation of liability, a volunteer health care professional must be acting within the scope of his or her license, registration, or certification in the State in which he or she is licensed, registered, or certified, and must not exceed the scope of license, registration, or certification of a substantially similar health professional in the State in which he or she is providing health care services. “Health care services” include the prevention, diagnosis, and treatment of COVID-19 and the assessment and care of individuals being suspected of exposure to COVID-19.

Health care professionals will still be considered to be volunteers and eligible for this immunity even if they are receiving items that will be used exclusively for rendering health care services in their capacity as a volunteer health care professional, such as donated supplies and equipment. In addition, a health care professional will still qualify for this immunity even if he or she is being reimbursed for travel expenses and room and board, if the location where the volunteer health care services are being provided is more than 75-miles from the health care professional’s home.

There are certain exceptions for which the limitation of liability does not apply. These include if harm was caused because the health care professional acted with gross negligence; with reckless, willful or criminal misconduct; or with a conscious, flagrant indifference to the rights and safety of the individual who was harmed. Furthermore, the limitation of liability will not apply to a health care professional who provided health care services under the influence (as determined under applicable State law) of alcohol or drugs.

The CARES Act provisions explicitly state that this limitation of liability preempts the laws of any State or any political subdivision of a State to the extent that those laws are inconsistent with this section, unless such laws provide the volunteer health care professional with greater protection from liability. In addition, the CARES Act states that the protections it affords to volunteers are in addition to any established for volunteers under the Volunteer Protection Act of 1997.