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Markel Insurance

18 Jun 2020

COVID-19: Insurance considerations for care organisations and how we can support and assist you

Care organisations remain at the forefront of the fight against COVID-19 and there’s no doubt that the impact of the virus is a business critical event. Care professionals are also asking how their insurers would like them to respond and communicate in relation to threats from COVID-19.

How could claims arise?

This could include claims arising from:

  • Alleged failure to provide a safe environment and prevent exposure to service users and potentially their visitors

  • Delays in supply shortages, e.g. medical equipment including servicing, medications and personal protective equipment (PPE)

  • Staffing deployment difficulties including agency staff usage.

  • Providers performing services they may not formally or historically be qualified to provide.

  • Loss of income or revenue following closure of the premises

Recording occurrences, notifications and reporting

Care professionals should be careful to record the dates of any alleged negligence and swiftly notify their broker for advice. They should also keep as much detail about the allegation and events leading up to it as possible - emails or write ups of calls/meetings are really important to have to hand and should be recorded as soon as possible for accuracy.

Notifications to UK regulators relating to safeguarding must continue to be managed in the same way. Where appropriate, the commissioners of care and citing any obligations in their contracts with commissioners should not be overlooked. It’s likely you’ll have to communicate with Public Health officials locally so keeping their contact details to hand as part of any business interruption and business continuity planning.

Significant changes in the workforce due to the added pressure from COVID-19 should be included as a main event to notify key partners, such as commissioners, regulators and insurers.

Employers Liability: Duty of care and negligence

Care employees are at greater risk of exposure to COVID-19 due to the nature of their activities which often includes close contact with individuals requiring personal care.

Employers should look at their operational policies and procedures to demonstrate compliance and assist a defence against allegations that the provider was negligent or failed in their duty of care.  

Robust risk assessments demonstrating providers have seriously considered all aspects of running their business and are COVID-19 resilient as well as can demonstrating COVID-19-secure practices, becomes more and more important.

Providers should also note that as COVID-19 continues to spread within communities, it will become increasingly difficult to determine whether a care worker was infected in the workplace or elsewhere. Care workers may be infected by patients, service users or co-workers, but can also get the virus from family members, neighbours, and people and places in the community such as supermarkets, transport and other areas where social distancing is challenging.

The potential for no-win no-fee actions from third-party legal firms bringing claims for failure to provide PPE and maintain effective infection-control procedures is clearly an area of threat. Getting the right advice and support, especially for smaller providers, is where Markel Care Practitioners can make a real difference.

General liability and competencies

How far cover includes or extends to COVID-19 will be described in each insurer’s policy wording and it is really important the insured understands their cover as there may be conditions applicable which dictate the nature and coverage of risk-assessment activity an insured needs to undertake. When it seems unclear, wording can be discussed with brokers.

To defend liability care providers will need to demonstrate that their risk assessments were proportional and robust. Unsafe environment claims are possible, based on alleged failure of care organisations to protect or assess their physical sites or introduce risk controls and are also associated with providing any treatment or direct care to a service user, including exposure to visitors, vendors, and others who may be on-site.

Care organisations may require that staff are redeployed to provide other services or work in areas where they have not recently worked e.g. domiciliary care and multi-locational sites. As such the risk and competency of the worker to transfer their skills and knowledge needs to have been established and evidenced by the care organisation.

New exposures changes to business activities

Working in areas not strictly envisaged when the insurance policy was written needs to be taken seriously, especially where there are significant variations in workplace activity. This needs to be taken back through the insured’s broker and advice sought. A good example is in children’s services where the original statement of purpose has been noticed to drift away from the actual provision.

Contracts of employment and keeping in touch

The COVID-19 pandemic has seen care services significantly challenged to maintain staffing cover and deployment. Always ensuring safe levels of cover often leads to more hours worked by care professionals so this should be reviewed.

Organisations experiencing extreme surges in the provision of care or business as well as employers implementing work-at-home strategies must be vigilant to ensure that all employees are properly compensated, especially when it comes to overtime pay. Additionally, meal and rest breaks must be provided in compliance with applicable legislation and regulations. Keeping sighted on your staff contracts and terms and conditions should not be overlooked. Communication strategies and approaches need to reflect that employers are keeping the welfare of their workers active and watch out for isolation for those workers used to office and social contacts previously important to them.

Cyber Liability

Social distancing requirements have led to an increase in remote working; this, in turn, tends to weaken a company’s privacy and security policies and procedures. For example, equipment can make organisations increasingly susceptible to cyber breaches or workers’ increased obligation to use their own equipment makes the changes of a cyber-attack or compromise likelier. Employers need to ensure the individual worker’s working-at-home environment has been adequately risk assessed and fully considered.

In care, due to the handling of protected information (PI), there is a danger that confidential information may be stored on staff’s local disk drives and memory devices become overlapped with those related to workers’ patients or service users. Thinking through the increased danger of cyber liability is important to build into home-based working risk assessments.

A really important care business consideration is how secure the home environment is. For example, claims can arise from disclosing the names of service user and staff with confirmed COVID-19 diagnoses or the inappropriate access of COVID-19 service user’s medical/care records. The increased use of telephone contact in domiciliary care, where a worker does not use local office facilities quite as much, also needs to be built into the COVID-19-secure and lone-working arrangements.

Communication

Challenges from staff or third parties, such as relatives alleging failures related to COVID-19 are not surprising. The safe social distancing requirements and recent visitor restrictions have added complexity at times of significant stress to organisations and their ability to communicate in ways that were easier and more personal before COVID-19.

Effective communication to staff and relatives is a crucial part of the provider’s activity and a real challenge when things either go wrong or accidents and worrying occurrences arise, such as safeguarding.

Additionally, delayed approval of provider referrals and billing contribute to business resilience problems and potential for business closure.

Putting pressure on commissioners/local authorities is part of remaining viable and we have received a number of calls for support in this area and continue to advise on how best to tackle this major sector problem.

Reporting to Insurers

The global pandemic will likely prompt a number of commercial insurance claims from care organisations. Whether a claim or loss is covered will depend on the terms and conditions of each policy as well as the facts associated with each specific claim. Care providers should discuss any specific coverage concerns with their brokers or other insurance advisors — and, when in doubt, report any concerning insurance-related event, loss, or claim as specified under the terms of their policies.

How we can help and support you

Our response is built around the depth and wide practice coverage of client groups in care and making the support bespoke to you.

  • Business continuity and interruption plans - Good business continuity planning assists resilience and should therefore be in place. We’ve received a lot of recent calls for supporting this area and we have some really useful practice experience, along with tools and templates to assist you in this area. From talking through with providers, to producing an outside perspective will really strengthen your planning, thoroughness of operational response and contribute to being COVID-19 ready and secure.

  • Recovery – For some care providers, such as children’s day care settings and some community-facing organisations, where there is usually no direct personal care involved, numerous organisations have had to furlough staff or temporarily cease to trade. Getting you back up and running and reawakening your business is something we can help you with.

  • Competency tools – To mitigate allegations of negligence or failure in your duty of care, we have developed a competency-based approach and tools to assist the insured. Being able to defend yours and your organisation during this time is really important.

  • Risk assessment strengthening – Being able to demonstrate you are COVID-19 secure, or being able to demonstrate to commissioners you are a safe provider, is where we can also add to your own positioning and work to date. Bespoke tools to support you in delivering really reassuring evidence that you are on the front foot will help you in recovery and business sustainability.

  • Non-payment of fees – If this is becoming a problem of real significance for you, get in touch as we may be able to make a difference and we certainly have a good history of effective interventions in this area.

  • Liability dampening advice and training – This is one of our most frequent interventions and support to policyholders. Training and tools either on site or remotely coming from a practice perspective continues to be one of the most popular activities we deliver.

For further information and advice on other considerations for care organisations, contact Jerry Oliver or call us on 0333 242 9778.

Our COVID-19 Hub contains a range of information and resources to best support our clients during this difficult time. To receive the latest news and insights by email sign-up here.

Next article in series

11 Jun 2020

Working safely: Health and safety checklist for care organisations