Kansas adult care homes could get COVID-19 legal immunity
When Kansas lawmakers met last year to quickly craft emergency legislation in response to the pandemic's onset, they provided businesses and healthcare providers with immunity from civil liability related to COVID-19.
But they only gave adult care facilities "an affirmative defense to liability." This legislative session, Republicans are looking at letting them join the rest of the crew with a bill that had its hearing Wednesday.
Bill proponents said it was "a slap in the face" to not be put in the same category as hospitals and other providers.
"If these care facilities are complying with all the guidelines and directives they've been given, then they shouldn't be at more risk for litigation than a business or health care provider would be. And so that's the discussion that will take place," Rep. Fred Patton, R-Topeka, who chairs the committee sponsoring the bill, had previously said.
It's a proposal pushed by those in the adult care industry, who say they're already facing unimaginable pressures with staffing, resources and regulations brought about by the pandemic. A wave of lawsuits is the last thing they need to worry about.
"We need that protection because we are facing something completely unprecedented that none of us have ever seen," Haely Ordoyne, chairperson of Kansas Adult Care Executives, told the Topeka Capital-Journal. "Especially if we're not being provided additional resources that we're asking for, we're kind of left to fend on our own. Removing liability protection from us is really just pouring salt in our already hemorrhaging, open wounds."
Nursing homes are hotspots for the virus, and the governor's office had preferred using the "affirmative defense" language instead of "immunity" like they did with other businesses, Patton said.
This bill faces opposition from Democratic lawmakers and potentially, the governor.
"We have concerns about the bill. We want to make sure that everybody stays protected and that safeguards are in place while maintaining accountability," said House Minority Leader Tom Sawyer, D-Wichita.
The bill gives adult care homes, essentially, the same level of immunity given to hospitals and healthcare providers. According to bill text, the immunity for adult care homes would be virtually blanket for all coronavirus-related claims except in cases of gross negligence or reckless conduct, standards that legal experts say are super difficult to prove.
Mark Maloney, an attorney representing a Sedgwick County nursing home in a COVID-related case, said in the bill's hearing the current "affirmative defense" language is definitely not enough.
"That shifted the burden to me and it caused my client to incur additional costs," he said. "I had to spend considerable time at my client's facility, pulling frontline healthcare workers out of patients' and residents' rooms to come into a conference room to meet with me. This caused the facility to call in extra staff to cover those extra shifts."
Advocates for patients and residents, though, are worried and say the current differences in protection are important to maintain. Adult care homes don't provide medical front-line care for COVID-19 treatment, have a history of violation of infection control practices and most notably are virus hotspots, said proponents.
The bill "is drafted so broadly that its effect will be to give adult care homes nearly complete immunity for all services and care they provide," said Ashley Ricket of the Kansas Trial Lawyers Association in written testimony.
Barbara Hickert, the state's Long Term Care Ombudsman, noted that already, protections for residents have been limited because of the pandemic. Family members and friends of residents, who tend to be the ones checking to make sure folks are taken care of properly, have had limited to no access to facilities because of virus restrictions.
Passing this bill would strip protections even more, she said.
There were as well some concerns about this new legislation being applied retroactively, as the bill calls for.
Patton had previously said nursing homes being hotspots doesn't necessarily mean lower standard of care. Rather, it "just so happens" that there are more high-risk individuals living in the facilities and more likely to catch the virus.
In the end, in a Republican supermajority, the bill's chances look good. Security on this front is needed now, said Ordoyne.
"We don't know what's going to happen if we are open to these lawsuits," she said.