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Minutes for HB2126 - Committee on Judiciary

Short Title

Providing immunity from civil liability for COVID-19 claims for adult care facilities.

Minutes Content for Wed, Feb 3, 2021

Chairperson Patton opened the hearing on HB2126.  Natalie Scott provided an overview of the bill. (Attachment 1) Ms. Scott answered numerous questions regarding the bill.

Mark Maloney, on behalf of Progressive Healthcare Alliance, testified in support of HB2126. (Attachment 2) Mr. Maloney stated he has practiced law in Kansas for more than 30 years, with a significant portion of his current practicing being the representation of Kansas health care providers, including long-term care providers, in defense of medical malpractice claims and lawsuits.  This bill is critically important because the bill, passed during the special session in 2020, placed an unusually difficult and costly burden on long-term care providers at a time of great difficulty for the long term care industry.  HB2126 simply adds language that will allow long-term care providers the same safeguard in the healthcare immunity language that there currently is for other medical providers.

Audrey Dunkel testified in support of HB2126. (Attachment 3) Ms. Dunkel stated all adult care facilities are non-profit or governmental facilities dedicated to providing care from the cradle to the grave in rural communities across Kansas.  As you can imagine, this disparate treatment regarding liability is a concern for our members.  They struggle with the idea that even though they provide the same standard of infection prevention in their nursing facility as in their hospital, they have not been given the same protection under the law during the pandemic.  It has forced many of them to place more strict infection control measures, like limiting visitors for residents, out of concern for the limited protection from liability.  The Kansas Hospital Association would appreciate your attention and support for any bills that would extend the same full liability protections related to COVID-19 that are currently available for ALL other health care entities in the State of Kansas.

Charlotte Rathke testified in support of HB2126. (Attachment 4) Ms. Rathke asked for the membership for their support of this bill because it is the right thing to do.  All health care providers deserve impartial and just treatment for the work they are doing.  They deserve behavior that is without favoritism or discrimination.  Nursing home providers are vital to the care of Kansans and this respect should be granted by the support of HB2126.

Rachel Monger testified in support of HB2126. (Attachment 5) Ms. Monger stated HB2126 amends the adult care home provisions of the COVID-19 Response and Reopening for Business Liability Act to ensure that adult care homes in Kansas receive the same degree of protection from unwarranted and potentially ruinous lawsuits as every other business and health care provider in the state during the public health emergency.  She asked for the memberships support of the bill.

Colin McKenney testified in support of HB2126. (Attachment 6) Mr. McKenney stated his hope is that HB2126 will greatly reduce the chances of spurious legal claims against our organization and many others across Kansas.  He thanks the membership for their efforts to limit inappropriate legal claims, and to help ensure that they can continue to keep the persons they serve safe through the remainder of this pandemic.

Tricia Phillips testified in support of HB2126. (Attachment 7) Ms. Phillips stated they take care of the most vulnerable population.  They tax their staff with knowing not only what the resident needs, but also the families want before they even ask.  Our staff have willingly sacrificed their time with their own families, own health, and their own best interest to continue to provide quality care for these individuals.  They have become caregiver and family member confidant.  We are privileged to have these healthcare workers in this state to care for this population.  These caregivers deserve the protection offered by HB2126.

Haely Ordoye testified in support of HB2126. (Attachment 8) Ms. Ordoye stated the Kansas Adult Care Executives (KACE) is a non-partisan, non-profit professional association serving nursing home administrators and assisted living operators in Kansas.  She is here today to advocate in favor of HB2126.  Ms. Ordoye understands that many Kansas legislators have supported providing adult care homes with immunity from civil liability, and we are thankful for your previous and future support.  Mr. Ordoye and the KACE greatly appreciate your recognition of this important matter and they wanted to take this opportunity to provide front line experience as to why this is so vital to our industry.

Michelle Ponce testified in support of HB2126. (Attachment 9) Ms. Ponce stated the Association of Community Mental Health Center of Kansas is supportive of the intent of the bill, to provide immunity for healthcare providers from any claims for damages or liability arising out of or related to acts, omissions or decisions related to the Covid-19 public health emergency.

James Krehbiel testified in support of HB2126. (Attachment 10) Mr. Krehbiel stated he and the organization he represents are grateful for the careful consideration being given to HB2126 because of what it means for life plan communities like ours all across the state.  Of the states that have granted COVID-19 liability immunity to businesses and health care providers, Kansas is the only state that has not included that liability protection for adult care homes.  Without that protection, senior care organizations in Kansas are burdened with financial challenges and decisions that affect the quality of life and care of residents and participants.  HB2126 addresses and rectifies some of those difficulties.  It is important to note that HB2126 does not grant care facilities immunity from gross negligence.

Linda MowBray testified in support of HB2126. (Attachment 11) Ms. MowBray stated Kansas Health Care Association supports HB2126 which will provide immunity to civil liability for COVID-19 claims for adult care homes.

The proponents stood for questions by the membership.

Written Proponent

 

Opponents

Joe Molina testified as an opponent to HB2126. (Attachment 14) Mr. Molina stated that the Kansas Bar Association has a long-standing policy supporting access to justice, which is the ability to bring grievances before an impartial arbiter to resolve complaints based on facts and the law.  Access to justice is perhaps the most essential aspect of the American judicial system.  It is with this understanding that the KBA opposes increased immunity protection for adult care facilities as described in HB2126.

Representative Aaron Coleman testified as an opponent to HB2126. (Attachment 15) Representative Coleman stated all medical professionals must take the Hippocratic oath.  In doing so they swear to "prevent disease whenever I can, for prevention is preferable to cure."  Most of the deaths we are seeing today in adult care facilities are from a lack of COVID-19 regulation by staff.  Caretakers fail to "prevent disease whenever" they can when they are the ones to bring in this deadly disease into adult care facilities due to negligent practices.  Representative Coleman asked to stop this morally bankrupt legislation that places protecting private profits over the health of our most vulnerable and defenseless citizens.

Margaret Farley testified as an opponent to HB2126. (Attachment 16) Ms. Farley stated people give up their homes and much of their independence when they move into a nursing home.  The pandemic took away more of their rights -- their rights to see their friends and family, their right to eat in the dining room with the people they live with, the right to leave the facility, just to name a few.  Some residents weren't allowed to leave their rooms for months.  HB2126 attempts to take away one of their last remaining rights, their right to a fair trial if they are abused or neglected.  Residents and their families expect that the care they receive from facilities complies with federal and state health, safety and infection control guidelines.  Our policies and laws must focus on fairness for residents, accountability and oversight to assure facilities are safely taking care of the people who have taken care of us.  She asked to oppose HB2126.

Judy Billome testified as an opponent to HB2126. (Attachment 17) Ms. Billome, on behalf of AARP, stated nursing homes and other long-term care facilities play an important role in America's long-term services and supports Long Term Service and Support systems.  During this time of pandemic, they face unprecedented challenges.  However, while there may be some circumstances beyond facilities' control for which they should not be held responsible, it is essential that these long-term care providers remain responsible for their negligent actions to ensure long-term care residents have some protection and opportunity for redress.

Mike Burgess testified as an opponent to HB2126. (Attachment 18) Mr. Burgess stated the bill appears to basically grant what amounts to blanket immunity to nursing facilities.  The bill technically has a "reckless and wanton" provision that facilities must abide by, however that is such a low bar for facilities to pass that it effectively will help ensure blanket immunity the vast majority of the time.  As long as they can tie the incident to COVID or the crisis then they have an easy path to immunity, even if they are not following the state and federal guidelines on COVID.  The protection for facilities in the current law already grants an affirmative defense and is fair to all sides, including seniors and people with disabilities residing in these facilities.  Mr. Burgess stated HB2126 grants unfair immunity for long term care or nursing facilities.

Ashley Ricket testified as an opponent to HB2126. (Attachment 19) Ms. Ricket on behalf of the Kansas Trial Lawyers Association made comments in opposition to HB2126.  She explained the affirmative defense in current law is balanced; the blanket immunity in HB2126 goes too far.  They respectfully request that the Committee oppose HB2126.

Barbara J. Hickert testified as an opponent to HB2126. (Attachment 20) Ms. Hickert stated under normal circumstances, many individuals, including family and friends, regularly visit the nursing homes and observe directly and report any concerning issues.  Given the ban on visitation, unless the resident is at the end of life or experiencing a significant change in condition, all interaction with residents is limited to video, window, or limited outdoor visits.  And sometimes, even those visits are being denied.  Family and friends are not able to enter the nursing homes to observe the current conditions.  The pandemic has also limited the ability for KDADS to conduct annual inspections of adult care homes, having spent much of the last year focused on limited infection control surveys and complaints that rise to the highest level of harm.  Long-term care facility operations are denying all responsibility for conditions long-term care facilities during Covid-19.  They point to state and federal government failures to provide Covid-19 tests and personal protective equipment like masks and gloves for residents and staff.  They say government initiatives did not sufficiently prioritize nursing homes' access to personal protective equipment and tests, compared with hospitals.  And they are right.  But that argument does not justify offering immunity to nursing home operators that acted irresponsibly.

After questions from the membership, Chairperson Patton adjourned the hearing.

Chairperson Patton adjourned the meeting at 5:14 p.m.