McConnell backs down on ‘red line’ of COVID-19 liability protections

Senate Majority Leader Mitch McConnell (R-Ky.) on Tuesday indicated a willingness to abandon liability protections for businesses and healthcare providers to get a COVID-19 relief bill passed by the end of the year.

McConnell had called an enhanced liability shield a “red line” for months during failed negotiations. He said he would be willing to push negotiations on liability protections and funding for state and local governments to next year if that’s what it took to get relief passed this year.

“What I recommend is that we set aside liability and set aside state and local and pass things that we can agree on knowing full well we will be back at this after the first of the year,” McConnell told reporters.

McConnell said that areas of agreement include funding for vaccines, assistance for small businesses, “assistance for healthcare providers,” and other non-controversial items.

A recent Modern Healthcare Power Panel survey of healthcare executives showed a liability shield was the second priority for health executives in a COVID-19 relief bill behind more public health funding for testing, tracing and vaccines.

But the concession may not be the breakthrough negotiators need, as Senate Minority Leader Chuck Schumer (D-N.Y.) criticized McConnell’s approach shortly after. Schumer claimed that funding for state and local funding has bipartisan support, unlike a liability shield that is favored by Republicans, and that many state employees’ jobs could be on the line if the federal government doesn’t step in.

Providers have also voiced support for more funding for state and local governments, as they are concerned that increased Medicaid enrollment and strained state budgets could lead to damaging rate cuts. The Greater New York Hospital Association, which is an influential player in Schumer’s home state, has been particularly adamant about the need for more state government funding.

Liability protections for healthcare providers are usually handled at the state level, and roughly two dozen states have scrambled to push special protection from lawsuits related to COVID-19. But hospitals, nursing homes and physicians are clamoring for a universal standard to ensure long-lasting, firm federal protections to underpin a widely varying patchwork of state measures. The state-level variation in liability protections provides a roadmap for what’s at stake in the federal legislation.

Lawmakers will vote this week to extend the deadline for federal government funding from Dec. 11 to Dec. 18 which will buy more time for negotiations.

Register here to listen to a conversation Dec. 9 at 4 p.m. CT on Setting the Agenda for President-elect Joe Biden and Congress. Join Chip Kahn of the Federation of American Hospitals, Dr. Joshua Sharfstein of Johns Hopkins Bloomberg School of Public Health, Wright Lassiter of Henry Ford Health System and U.S. Representative Donna E. Shalala for a conversation free to our subscribers.

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