SB 3049 — Mississippi Back-to-Business Liability Assurance and Health Care Emergency Response Liability Protection Act; create.

SB3049 (As PassedSent theto Senate)Governor) - 2020 Regular Session MISSISSIPPI LEGISLATURE Regular Session To:

Senator(s) Doty, Blackwell, Boyd, Branning, Caughman, Chassaniol, Chism, DeBar, DeLano, England, Harkins, McDaniel, McLendon, McMahan, Moran, Parker, Parks, Seymour, Sojourner, Sparks, Tate, Whaley, Younger Senate Bill 3049 (As PassedSent theto Senate)Governor) AN ACT TO CREATE THE MISSISSIPPI BACK-TO-BUSINESS LIABILITY ASSURANCE AND HEALTH CARE EMERGENCY RESPONSE LIABILITY PROTECTION ACT;

TO PROVIDE IMMUNITY FROM SUIT AND LIABILITY TO HEALTH CARE PROVIDERS AND HEALTH CARE FACILITIES THAT PROVIDE CARE DURING A STATE OF EMERGENCY AND CERTAIN CIRCUMSTANCES;

TO PROVIDE LIABILITYIMMUNITY PROTECTIONFROM SUIT AND LIABILITY FOR INDIVIDUALS, STATE AND LOCAL GOVERNMENT, ASSOCIATIONS, FOR-PROFIT AND NONPROFIT ENTITIES, RELIGIOUS AND CHARITABLE ORGANIZATIONS;

TO PROVIDE SAFE HARBOR FOR COMPLIANCE WITH PUBLIC HEALTH GUIDANCE;

TO PROVIDE LIABILITYIMMUNITY PROTECTIONFROM SUIT AND LIABILITY FOR PRODUCTS MADE, SOLD,SOLD OR DONATED IN RESPONSE TO COVID-19 AND RELATED CIRCUMSTANCES;

     SECTION 1.  This act shall be known and may be cited as the "Mississippi Back-to-Business Liability Assurance and Health Care Emergency Response Liability Protection Act."      SECTION 2.  As used in this act, the following words shall have the following meanings:

                   (a)  "COVID-19" means the novel coronavirus identified as SARS-CoV-2, the disease, health condition or threat caused by the novel coronavirus SARS-CoV-2, or a virus mutating therefrom, and conditions associated with the disease.

          (b)  "COVID-19 State of Emergency" meansmeans: the State of Emergency declared by Executive Order of the Governor of the State of Mississippi on March 14, 2020, and any subsequent orders or amendments thereto.

              (i)  A public health emergency related to COVID-19 declared by the United States Secretary of Health and Human Services under Section 319 of the Public Health Service Act (42 USC Section 247d);

              (ii)  A Presidential declaration of emergency related to COVID-19 under the National Emergencies Act or the Stafford Act;

or               (iii)  A state of emergency related to COVID-19 proclaimed by the Governor of the State of Mississippi under Section 33-15-11(b)(17).

          (d)  "Essential"First business"responder" means astate personand orlocal entitylaw thatenforcement ispersonnel, anfire essentialdepartment businesspersonnel, oremergency operationmedical aspersonnel, definedambulance byservice anprovider Executivepersonnel, Orderemergency issuedmanagement bypersonnel theand Governorpublic works personnel who may be deployed in response to the COVID-19 Statestate of Emergency,emergency. and any subsequent orders or amendments thereto.

          (e)  "First"Health responder"care meansfacility" statemeans: and local law enforcement personnel, fire department personnel, emergency medical personnel, ambulance service provider personnel, emergency management personnel and public works personnel who may be deployed in response to the COVID-19 State of Emergency.

                       (f) (i)  "HealthAny facility in which health care facility"services means:are provided, including, but not limited to, any licensed or state-approved facility;

              (i)  A licensed or state-approved              facility(ii)  inAny whichfield healthhospital, caremodular servicesfield-treatment arefacility provided,or including,other butfacility notdesignated limitedby to,the aState hospital,Department licensedof physician'sHealth clinic,or outpatientthe surgeryMississippi center,Emergency dialysisManagement center,Agency hospice,for institutiontemporary use for the agedpurpose orof infirm,providing long-termhealth care facilityservices orrelated mentalto healththe center;COVID-19 state of emergency.

or                       (f)  (ii) "Health A field hospital, modular field-treatment facility or other facility designated by the Mississippi Department of Health or the Mississippi Emergency Management Agency for temporary use for the purpose of providing health care servicesprofessional" inmeans: support of the state's response to the COVID-19 State of Emergency.

          (g)  "Health care professional" means:

or               (iii)  A volunteer or military personnel who is approved by or works under the direction of the MississippiState Department of Health or the Mississippi Emergency Management Agency and who provides health care services in response to the COVID-19 Statestate of Emergencyemergency in the State of Mississippi.

          (h) (g)  "Health care services" means any care, treatment, service, or procedure to maintain, diagnose or otherwise affect an individual's physical or mental condition.

          (i) (h)  "Noneconomic"Person" damages" means subjective,an nonpecuniaryindividual, damages arising from death, pain, suffering, inconvenience, mental anguish, worry, emotional distress, loss of society and companionship, loss of consortium, bystander injury, physical impairment, disfigurement, injury to reputation, humiliation, embarrassment, loss of the enjoymentstate of life, hedonic damages, other nonpecuniary damages, and anypolitical othersubdivisions theoryas ofdefined damagesin suchSection as11-46-1, fearassociation, ofeducational loss,entity, illnessfor-profit or injury. nonprofit Theentity, termreligious "noneconomicorganization damages" shall not include punitive or exemplarycharitable damages.organization.

                  (i)  (j) "Personal "Person"protective equipment" means ancoveralls, individual,face theshields, stategloves, andgowns, politicalmasks, subdivisionsrespirators asor definedother inequipment Sectiondesigned 11-46-1,to association,protect educationalthe entity,wearer for-profitfrom orthe nonprofitspread entity,of religiousinfection organization, or charitableillness. organization.

          (k) (j)  "Personal"Premises" protective equipment" means coveralls,any facephysical shields,place gloves,serving gowns,a masks,commercial, respiratorsresidential, oreducational, otherreligious, equipmentgovernmental, designedcultural, tocharitable protector thehealth wearercare frompurpose. the spread of infection or illness.

          (l) (k)  "Premises""Public health guidance" means anywritten physicalguidance placerelated servingto athe commercial,COVID-19 residential,state educational,of religious,emergency governmental,that cultural,is charitableissued by an executive agency or healthregulatory careagency purpose.of the federal government or an executive agency of the State of Mississippi.

          (m) (l)  "Public"Qualified healthproduct" guidance" means writtenpersonal guidanceprotective relatedequipment used to protect the COVID-19wearer Statefrom ofCOVID-19 Emergency that is issued by an executive agency or regulatory agency of the federalspread government or an executive agency of theCOVID-19; State of Mississippi, including the Office of the Governor.

          (n)  "Qualified product" means personal protective equipment used to protect the wearer from COVID-19 or the spread of COVID-19;

tests to diagnose or determine immunity to COVID-19 which have been approved by or submitted to the FederalUnited States Food and Drug Administration ("FDA") for approval within FDA-prescribed time periods;

     SECTION 3.  (1)  AnA essentialperson, business, or agent of that essentialperson, business,who shallattempts notin good faith to follow applicable public health guidance shall be heldimmune liablefrom suit for civil damages for any injuries or death resulting from or related to actual or alleged exposure or potential exposure to COVID-19 in the course of or through the performance or provision of its functions or servicesservices. in the time before applicable public health guidance was available.

     (2)  ExceptA asperson, otherwiseor providedagent byof thisthat section,person, anshall owner,be lessee,immune occupantfrom orsuit anyfor othercivil persondamages infor controlinjuries ofor adeath premises,resulting whofrom attempts,or inrelated good faith, to followactual applicable public health guidance and directly or indirectlyalleged invitesexposure or permitspotential anyexposure personto ontoCOVID-19 ain premisesthe shallcourse notof beor heldthrough liablethe forperformance civilor damagesprovision forof anyits injuriesfunctions or deathservices resultingin fromthe ortime relatedbefore toapplicable actualpublic orhealth allegedguidance exposurewas oravailable. potential exposure to COVID-19.

     (3)  TheAn limitationsowner, onlessee, liabilityoccupant providedor any other person in thiscontrol sectionof shalla notpremises, applywho whereattempts, thein plaintiffgood shows,faith, byto clearfollow applicable public health guidance and convincingdirectly evidence,or thatindirectly invites or permits any person onto a defendant,premises orshall be immune from suit for civil damages for any employeeinjuries or agentdeath thereof,resulting actedfrom withor related to actual maliceor alleged exposure or willful,potential intentionalexposure misconduct.to COVID-19.

     (4) SECTION Nothing4.  in(1)  thisAny section: health (a)care creates,professional recognizesor health care facility shall be immune from suit for any injury or ratifiesdeath adirectly claimor indirectly sustained because of the health care professional's or causehealth care facility's acts or omissions while providing health care services related to a COVID-19 state of actionemergency.  The immunity takes effect when the COVID-19 state of emergency is declared, applies to any kind;health care services performed during the COVID-19 state of emergency, including any period of renewal or extension, and terminates one (1) year after the end of the COVID-19 state of emergency.  The immunity includes, but is not limited to, injury or death resulting from screening, assessing, diagnosing or treating persons in relation to the COVID-19 state of emergency or the medical conditions causing the COVID-19 state of emergency, or acts or omissions while providing health care services to persons unrelated to the COVID-19 state of emergency when those acts or omissions were intended to support the state's response to the COVID-19 state of emergency, including, but not limited to, the following:

(b)          eliminates(a)  aDelaying requiredor elementcancelling nonurgent or elective dental, medical or surgical procedures, or altering the diagnosing or treatment of any claim;person in response to an order, directive or guideline issued by the federal, state or a local government;

(c)          affects(b)  workers'Diagnosing compensationor law,treating includingpatients outside the exclusivenormal applicationscope of suchthe law;health care professional's license or practice;

          (c)  Using equipment or (d)supplies amends,outside repeals,of alters,the orproduct's affectsnormal anyuse otherfor immunitymedical orpractice limitationand the provision of liability.health care services, including using or modifying a medical device for an unapproved use or indication;

     SECTION`    4. (d)  (1) Prescribing, Aadministering health care professional, health care facility, person or agentdispensing ofa thatpharmaceutical person who attempts, in good faith, to follow applicable public health guidance shall not be held liable for civiloff-label damagesuse for any injuries or death resulting from or related to actualtreat ora allegedpatient exposurein orrelation potential exposure to a COVID-19 instate the course of oremergency; through the performance or provision of its functions or services.

              (2) (e)  ExceptConducting astests otherwise provided by this section, any health care professional or healthproviding caretreatment facilityto shall not be held liable for civil damages for any injuryperson oroutside death directly sustained because of the healthpremises careof professional'sstandard or health care facility'sfacilities; acts or omissions while providing health care services in response to the COVID-19 State of Emergency.  The immunity includes injury or death resulting from screening, assessing, diagnosing or treating persons directly related to the COVID-19 State of Emergency.

    or (3)           The(f)  limitationsActs onor liabilityomissions providedundertaken inby thisa sectionhealth shallcare notprofessional applyor wherehealth thecare plaintifffacility shows,because byof cleara andlack convincingof evidence,staffing, thatfacilities, aequipment, defendant,supplies or anyother employeeresources attributable to the COVID-19 state of emergency that make it impractical for the health care professional or agenthealth thereof,care actedfacility withto actualprovide malicethe level or willful,manner intentionalof misconduct.care to any person that otherwise would have been required in the absence of the COVID-19 state of emergency.

     (4) (2)  NothingThis inact thisshall section: be (a)liberally creates,construed recognizeswith regard to immunizing health care professionals or ratifieshealth acare claimfacilities for acts or causeomissions ofundertaken actionwhile ofproviding anyhealth kind;care services related to a COVID-19 state of emergency.

(b)     eliminatesSECTION 5.  (1)  A person who designs, manufactures, labels, sells, distributes, or donates a requiredqualified elementproduct ofin response to COVID-19 shall be immune from suit for civil damages for any claim;injuries resulting from or related to actual or alleged exposure or potential exposure to COVID-19 caused by a qualified product.

(c)     affects(2)  workers'A compensationperson law,who includingdesigns, manufactures, labels, sells, distributes, or donates disinfecting or cleaning supplies or personal protective equipment in response to COVID-19 outside the exclusiveordinary applicationcourse of suchthe law;person's business shall be immune from suit for civil damages for any injuries resulting from or related to actual or alleged exposure or potential exposure to COVID-19 caused by the disinfecting or cleaning supplies or personal protective equipment.