H.B. 2126: Providing Protection to Nursing Home Facilities from COVID-19-related Claims
On April 9, 2021, Governor Kelly signed H.B. 2126 into law, which provides immunity to nursing home facilities from certain COVID-19-related claims. This is a long-awaited win for nursing home facilities, which were initially excluded from such immunity when it was provided to other healthcare providers in June 2020. By passing this bill, Kansas joins approximately a dozen other states that have adopted immunity for businesses to limit their exposure to COVID-19-related lawsuits.
This law retroactively protects “covered facilities” from civil liability for certain claims after March 12, 2020 until the conclusion of the pandemic, including adult care homes, community mental health centers, crisis intervention centers, community service providers, community developmental disability organizations, and CMS-approved PACE centers. Specifically, this protects against “COVID-19 claims,” which are defined in H.B. 2126 as any claim made by or on behalf of any person who has been exposed to COVID-19 for damages, losses, indemnification, contribution or other relief arising out of such exposure.
Covered facilities will receive immunity from legal claims related to COVID-19-related injuries or deaths, as long as the covered facilities substantially comply with public health directives applicable to the activity that gave rise to the claim. “Public health directives” includes both state statutes or rules and regulations and federal statutes or regulations from federal agencies, such as the CDC and OSHA. Notably, this law does not provide immunity in instances of gross negligence or willful, wanton or reckless conduct.
H.B. 2126 provides much-needed protection for nursing home facilities, who previously only received an “affirmative defense to liability” last summer. Leading up to the bill’s passing, many nursing home facility advocates voiced concern for threats to the very existence of the senior care system in Kansas due to COVID-19’s prevalence in nursing homes, the potential for numerous COVID-19-related lawsuits, and nursing home facilities’ inability to shoulder litigation expenses to defend against such lawsuits. One such advocate was Hinkle Law Firm’s Mark Maloney, who testified in favor of the bill in February and urged Legislators to enact these statutory protections to help facilities avoid costly litigation that could ultimately drive these facilities out of business.
Patient advocates, on the other hand, expressed concern that this law is overbroad and would remove nursing home accountability. The vast majority of Legislators voted in favor of the bill, however, and the bill will take effect after its publication in the Kansas register.