Updated 4/13/21: Kentucky’s Senate Bill 5 became law on Sunday, the final day of the 2021 legislative session, without Gov. Andy Beshear’s signature.

Kentucky lawmakers last week sent to Gov. Andy Beshear for his signature a COVID-19 liability protection bill that extends immunity to a narrow group of essential service providers, including senior living providers. If the governor signs the bill, the Bluegrass State will join a growing number of states granting such immunity to providers.

SB 5 drew broad support from a variety of organizations, including senior living groups. The bill extends personal injury immunity to providers said to have reasonably attempted to comply with state COVID-19 orders and regulations, and it protects businesses that permit others onto their premises from liability for injuries, loss or other damages arising from the pandemic.

Protections apply retroactively to March 6, 2020, and would end after Dec. 31, 2023. Immunity will not apply in cases of “gross negligence, or wanton, willful malicious or intentional misconduct.” The bill also requires that personal injury claims arising from a declared emergency must be filed within one year of the injury being discovered.

LeadingAge Kentucky President Timothy L. Veno told McKnight’s Senior Living that the bill is similar to a proposal that provider associations sent to the governor last year.

“We support this bill, and there is hope in its ability to give us some relief for the onslaught of frivolous lawsuits we receive,” he said. “There have been so many things that have spiraled out of the control of long-term care providers since this pandemic started. This is a small measure of potential relief for us.”

Kentucky is unique, Veno said, in that it has no real tort reform to reduce litigation. Under the state’s constitution and case law, anyone seeking a personal injury claim has a right to access the courts. There also is concern among provider groups about state constitutional language that gives the judicial branch sole authority to make policy regarding personal injury.

“I anticipate a legal challenge to this,” Veno said. “There are some complications with this, but clearly we support this effort to provide some relief, particularly during the pandemic and the state of emergency.”

Betsy Johnson, executive director of the Kentucky Association of Health Care Facilities, the state affiliate of the National Center for Assisted Living, told McKnight’s Senior Living that SB 5 will protect Kentucky businesses and healthcare providers from “unwarranted lawsuits directly tied to COVID-19.”

“We are thankful that the Kentucky General Assembly recognized the importance of the essential services provided by skilled nursing facilities, personal care and assisted living communities in fighting the COVID-19 pandemic,” she said. “These providers worked tirelessly to prevent the spread among the most vulnerable population. We are hopeful that Gov. Andy Beshear will allow the SB 5 protections to be enacted into law so that our essential healthcare workers can focus on providing care rather than fighting unnecessary lawsuits.”

Bob White, executive director of the Kentucky Senior Living Association, the state partner of Argentum, told McKnight’s Senior Living that his organization has “strongly supported” this bill along with a coalition of chambers of commerce and other provider associations.

“This legislation is so important in giving us immunity from liability relating to COVID-19 infections and loss of life,” White said. “We in senior living have been very fortunate with very few deaths in our communities.”

Sen. Ralph Alvarado (R), who co-sponsored the bill, said it will “mitigate the negative impact the COVID-19 pandemic has had on Kentucky’s economy.” 

Lawmakers voting against the measure called SB 5 “a solution looking for a problem” for “creating a protected class of businesses and a class of citizens who can be hurt by them with no legal recourse.”

Limiting exposure

Last month, West Virginia Gov. Jim Justice signed the COVID-19 Jobs Protection Act to eliminate liability and “preclude all suits and claims against any persons for loss, damages, personal injury or death arising from COVID-19” and to “provide assurances to businesses that reopening will not expose them to liability for a person’s exposure to COVID-19.” 

The act also makes workers’ compensation benefits the only remedy for “work-related injury, disease or death caused by or arising from COVID-19 in the course of and resulting from covered employment.”

Protections are retroactive from Jan. 1, 2020, and extend to essential business, healthcare facilities and healthcare providers, including long-term care providers.

Marty Wright, CEO of the West Virginia Health Care Association, told McKnight’s Senior Living that his association worked closely with other healthcare providers and the state’s business community to support SB 277.

“Understandably, our liability laws didn’t contemplate such an unimaginable public health crisis, and therefore, did not provide proper protections for our frontline healthcare workers,” Wright said. “We are pleased and relieved that the passage of SB 277 will ensure legal certainty to our healthcare providers as they continue to face the unprecedented challenges forced upon them by the COVID-19 pandemic.”

Liability reform

In Pennsylvania, the House of Representatives is considering HB 605, to require compulsory arbitration of COVID-19 actions alleging personal injury or death. The bill was sponsored by Rep. Torren Ecker (R-Adams/Cumberland). 

Gov. Tom Wolf previously vetoed a bill giving senior living organizations limited liability protections, saying the legislation would undermine COVD-19 mitigation efforts and endanger public health. That led to trial attorneys filing “opportunistic lawsuits” that will “cause more harm for our vulnerable seniors as settlements and payouts take dollars away from the bedside and redirect them to the pockets of attorneys — most of them out of state,” said Pennsylvania Health Care Association President and CEO Zach Shamberg.

HB 605 seeks to expedite arbitration before a three-member board. Claims can be brought if a provider fails to comply with public health directives in effect at the time.  

“The bill was fair five months ago, and it’s still fair today,” Shamberg said. “The only difference now is that those trial attorneys have emerged from the shadows. We continue to learn of shameless and opportunistic marketing attempts to troll for dollars presented in the forms of TV commercials, newspaper ads, digital marketing ads and even direct messages on Facebook to families who lost a loved one.”

State priority

COVID liability laws were among the top 2021 priority lists for some state legislators. 

A bill before the Missouri Legislature would provide COVID liability protections to assisted living communities and nursing homes and their frontline healthcare workers, as well as other workers and settings, in an effort to save them from “opportunistic lawsuits.” 

In Nebraska, the COVID-19 Liability Protection Act would provide broad immunity for assisted living communities and other businesses facing lawsuits connected with the pandemic.

At least a dozen states have adopted immunity for businesses to limit their exposure to COVID-19-related lawsuits. They include Alabama, Arkansas, Florida, Iowa, Kansas, Louisiana, Nevada, North Carolina, Ohio, Oklahoma, Tennessee, Utah and Wyoming.