COVID-19 collaboration: Use of higher ed facilities by health care institutions
As the COVID-19 pandemic causes unprecedented disruption to the higher education community, colleges and universities are being presented with unique opportunities to help and collaborate with health care institutions. Empty campus facilities provide a strategic outlet for health care systems that need space and safe havens for their workers. Specifically, colleges and universities are exploring whether to lease or license unused facilities to health care organizations to (1) establish temporary hospital facilities or (2) provide temporary housing to health care workers responsible for treating patients exposed to or having COVID-19. This brief article offers a top ten list of things to consider when negotiating this sort of agreement.
- Get experienced legal counsel. Higher education and health care institutions are highly regulated. Layer on the uncertainties associated with the COVID-19 pandemic, and it is critical that both parties work with legal counsel experienced in real estate, contract law and higher education matters in order to craft a practical but legally sound agreement.
- Understand the scope of the agreement. This may sound like simple advice, but it is critical that the agreement clearly identify the areas of campus and specific facilities subject to the agreement. For example, does the agreement cover the entirety of campus or just a single building? Are there limitations on access, parking and the use of common areas? Are there facilities that are prohibited from being used?
- Incorporate insurance requirements. In addition to ensuring that the use of campus facilities does not invalidate the college or university’s existing insurance policies, it is essential that any agreement establish certain minimum insurance requirements. Consideration must be given to the types of insurance (e.g., employer’s liability, general liability, automobile and excess liability), limits of liability, endorsements, waivers of subrogation and identity of any additional insureds.
- Add an indemnification provision. Another form of risk mitigation comes in the form of an indemnification or hold harmless provision, which seeks to make one party responsible for certain claims against, or losses incurred by, the other. Things to consider include the parties to be indemnified (e.g., the college or university, its employees or board members), the types of claims covered and whether the provision includes the duty to defend (a separate and distinct right under Ohio law). It is also important to note that public entities in Ohio cannot give indemnities.
- Determine how to address environmental issues (i.e., hazardous materials/wastes). Another important risk-mitigation tool involves compliance with relevant environmental laws, including those governing hazardous materials and wastes. It is important to not only define relevant terms (like “environmental laws” and “hazardous materials”) but also to establish limitations on the use, storage, disposal or release of hazardous materials/wastes, especially in light of the proposed health care use of college and university facilities.
- Determine how long the agreement will last. Most agreements will be temporary in nature and will expire after a set amount of time. But, will the agreement last through a certain date or until some triggering event occurs (e.g., the college provides notice that the facility is needed)? In addition, what other events trigger termination? In examining the length of the agreement, strategic consideration must be given to when the college or university will need the facility or building (e.g., in late summer or early fall for the start of athletic practices). This date can be used as a starting point from which parties can back out the time required for move out, cleaning and any required quarantine.
- Immunity. Ohio Revised Code Section 5502.30 provides immunity for individuals and corporations acting in good faith in accordance with an agreement for mutual aid and assistance during emergency management operations, except in cases of willful misconduct. Colleges and universities that assist local medical facilities by providing overflow residential and/or care facilities may want to consider entering into such an agreement with their local health department or political subdivision to help supervise emergency management efforts and provide some liability protection for those efforts.
- Negotiate financial terms. The financial terms of the license or lease should not only identify the specific dollar amount but also the frequency of payment (e.g., up-front or monthly).
- Responsibility for services (e.g., cleaning/decontamination). Colleges and universities not only serve as a place of learning, but they also provide essential services such as food, security, utilities, housekeeping, etc. What, if any, of these services will be provided by the college or university? Who will be responsible for post-use COVID-19 decontamination efforts?
- Compliance with college/university policies. Most colleges and universities have robust policies applicable to students, faculty and other visitors using campus facilities. Although not all policies may be applicable to a COVID-19 license/lease, it is important to think through which ones should be incorporated. For example, if internet service will be provided, the college or university’s acceptable use policy becomes relevant. Likewise, if health care workers will be residing in a college-owned building, policies on alcohol, pets and firearms may be important additions to the agreement.
While colleges and universities are considering collaborating with health care systems, they should also begin considering the effect of having such activities on campus at the same time as, or instead of, other summer activities (e.g., conferences or summer camps). If it is anticipated that third-party rentals of college facilities may need to be canceled given the current pandemic, a review of those contracts should occur sooner, rather than later, to minimize damages to both parties.