Nursing home advocate: Kansas’ weak COVID-19 legal protections ‘demoralizing punishment’

TOPEKA — Long-term care lobbyist Rachel Monger is convinced the Kansas law passed less than a year ago to limit civil liability of nursing homes during the pandemic fell far short.

Monger, speaking on behalf of LeadingAge Kansas’ 20,000 employees serving more than 25,000 older Kansans, said the affirmative-defense shield put in place during a special legislative session left facilities open to legal attacks. She said the compromise reached by Democratic Gov. Laura Kelly and the Republican-led Legislature amounted to “demoralizing punishment” for nursing homes caring for seniors during the public health crisis. It’s essential, she said, that lawmakers grant adult care facilities the immunity from coronavirus litigation extended to medical hospitals and clinics.

“Singling out long term care for personal injury and class-action lawsuits during this pandemic threatens the very existence of the senior care system in Kansas — a system that was already on the verge of disaster before the pandemic started,” she said.

A potential fix folded into House Bill 2126, which is opposed by as many organizations as support it, would deliver to nursing homes immunity for civil action on damages, administrative fines or penalties for claims arising from acts, omissions or decisions related to COVID-19. It wouldn’t cover instances of gross negligence or willful, wanton or reckless conduct. And, significantly, provisions of the bill would be retroactive to March 12, 2020, and remain in place until the pandemic was declared over.

Legal standards anchoring the bill will effectively block all legal claims against adult care centers related to injuries or deaths occurring during the pandemic, said Ashley Ricket, an attorney with the Kansas Trial Lawyers Association. She said KTLA member lawyers, who routinely represent people in personal injury, worker compensation and consumer protection cases believe the retroactive piece would be declared unconstitutional because it stripped people of vested rights.

“The affirmative defense in current law is balanced. Blanket immunity in HB 2126 goes too far,” Ricket said. “Injured persons have a right to access a court of law to seek fair resolution of disputes and to hold accountable those that cause injury. Immunity laws tread upon those rights.”

At least three Kansas facilities have been named in two dozen lawsuits or claims for failure to use protective equipment or refusal to test employees with symptoms of the virus, she said.

Ricket said the House bill could deflect lawsuits against adult care homes for negligent practices documented before the pandemic but allowed to continue past March 12. Adult care homes have experienced a significant portion of the state’s COVID-19 fatalities, she said, and frail elderly in these facilities deserve the highest protection of law to deter negligence and malpractice. She pointed to a facility in Norton where all 61 residents tested positive for COVID-19 and at least 10 died.

In addition, Ricket said, the bill could be construed to preclude claims against adult care homes under the Kansas Consumer Protection Act enforced by the Kansas attorney general.

“The Legislature should not pick winners and losers by eliminating rights and protecting negligent and dangerous conduct,” she said. “Residents and their families that have been harmed have a right to seek justice, particularly Kansans harmed in a facility with deficiencies and a history of practices that contributed to the spread of the COVID-19 virus.”

Kelly said she wasn’t familiar with details of the House bill, but felt lawmakers thoughtfully walked a fine line with an affirmative defense that reasonably offered protection to care facilities as well as options for people served by those businesses. The existing state law was a bid to thread a needle, she said, in recognition of life-or-death issues faced by nursing home residents and the reality operators of nursing homes couldn’t be held responsible for every aspect of the pandemic.

‘No one’s fault’

Charlotte Rathke, administrator of Locust Grove Village in La Crosse, said she has worked a quarter century at care facilities in rural western Kansas. She told the House Judiciary Committee it was her calling to use God’s gifts on behalf of vulnerable, sick and frequently forgotten members of society. The pandemic is a menace that shouldn’t be blamed on nursing home operators, she said.

In November, she said, Locust Grove Village was hammered by COVID-19 over a three-week period. She said coronavirus infected 27 of 33 nursing home residents, five of 14 assisted living residents and 27 of 43 employees. Four residents died, she said.

“No one had experienced this deadly virus before,” Rathke said. “No government was prepared for it. No business had ever dealt with it. No health care entity knew how to act when it started, which is why I ask you to support HB 2126. Nursing home providers should not be singled out.”

“Aging happens, illness happens, death happens, and it happens in Kansas nursing homes,” she said. “It happens from heart disease and cancer. It occurs from diabetes and COPD. It happens from Alzheimer’s disease and Parkinson’s. And it happens from COVID-19. And, it is no one’s fault.”

Haely Ordoyne, owner of Centennial Homestead in Washington, Kansas, and a member of the Kansas Adult Care Executives Association, said some adult homes couldn’t survive a wave of “predatory” lawsuits related to COVID-19. Civil suits filed against facilities in rural or frontier communities will destroy jobs, she said.

“If these suits begin to happen, they will lead to closings,” Ordoyne said. “It is simply cruel and unjust to consider us heroes one day, only to paint us as the villains the very next. This is a huge slap in the face to providers putting their own lives and health at risk.”

Mark Maloney, a Wichita attorney with the Progressive Healthcare Alliance who has 20 years of experience representing health care providers, said statutory immunity was a way for the state to help nursing homes avoid costly litigation until conclusion of the pandemic. Passing a bill won’t unwind pain of the pandemic, he said, but can prevent facilities from declaring bankruptcy and being taken over by the state.

‘Vote no’

Barbara Hickert serves as the state’s long-term care ombudsman, which places in her hands responsibility for protecting health, safety, welfare and rights of residents of care facilities. That duty includes representing their interests in debates about changes to laws, regulations or policies.

“So, on behalf of the thousands of residents in Kansas adult care homes, especially the 1,108 who have lost their lives to this pandemic, I ask you to vote no on HB 2126,” she told the House committee.

She said the pandemic contributed to a backlog of state inspections of adult care homes. Federal data indicates 38.7% of Kansas nursing homes are overdue for routine inspection, she said.

In addition, she said, isolation of nursing home residents from advocates, family and other residents as a precaution against COVID-19 fueled concern about potential abuse and neglect. Nursing homes make up less than 5% of coronavirus cases, she said, but 30% of fatalities.

“They are not receiving the care they need to prevent harm from other health problems because there is simply not enough staff to provide that care,” Hickert said. “Accountability is essential and means requiring homes to provide quality care that meets the needs of each individual. Exempting nursing homes from liability for all except gross negligence gives bad actors license to neglect residents’ needs and rights.”

Kansas Bar Association lobbyist Joe Molina said denying Kansans the right to bring grievances before an impartial arbiter would compromise an essential aspect of the state’s judicial system. The Legislature shouldn’t move beyond the affirmative defense for COVID-19 claims, he said.

Mike Burgess, of the Disability Rights Center of Kansas, objected to requests for extension of immunity beyond nursing homes to include organizations serving Kansans with developmental and intellectual disabilities.

Seniors and people with disabilities are more likely to have damages inflicted upon them and deserve a chance to seek redress, he said.

“Imagine your mother was in a nursing facility and died because of harm perpetrated by a nursing facility,” Burgess said. “Now, imagine your shock when that same facility was able to get off scot free simply because of this bill and the new immunity it provides.”