TOPEKA — The Senate Judiciary Committee moved quickly in terms of the normal legislative clock to endorse extension of a state law granting immunity from civil lawsuits for most businesses operating during the COVID-19 public health emergency.
The bill would affirm protection of businesses in substantial compliance with public health directives from start of the pandemic March 12, 2020, through at least March 31, 2022. There is no evidence a Kansas company has yet relied upon temporary coronavirus statute to stifle litigation.
The initial version of this barrier to civil suits was adopted in mid-2020 during a special session of the Legislature. In January, it was extended until March 31 as part of a massive emergency management law. The idea of attempting to move a stand-alone immunity bill quickly through the House and Senate and across Gov. Laura Kelly’s desk reflected a desire by GOP lawmakers to avoid it becoming tangled in a larger political conflict over reform of the state’s emergency management law opposed by the governor.
“In June when it was first passed, we thought this will be over by the 2021 session. Right? Here we are,” said Eric Stafford, a lobbyist with the Kansas Chamber and the only person to testify on the bill. “We’re trying to not protect the bad actors, but protect the good actors. And we feel this bill accomplishes that.”
Unlike the typical slothful process of advancing bills at the Capitol, Senate Bill 283 was introduced, pondered, amended and approved by the judiciary committee in less than 24 hours. It was sent to the House without strenuous objection from committee members and without testimony from anyone urging rejection of the bill.
Sen. David Haley, a Democrat from Kansas City, Kansas, said the speedy turnaround likely prevented skeptics from joining in the Senate committee’s debate. The bill was introduced Monday afternoon and the committee starting working it at noon Tuesday.
Haley said the bill shouldn’t be interpreted as a recommendation for businesses to let down their guard by not requiring the wearing of face coverings or social distancing. That should be the case in commercial properties, he said, even though not all members of the House and Senate abide by these fundamentals of pandemic management.
Sen. Molly Baumgardner, R-Louisburg, expressed disappointment the bill didn’t extend liability protection to nursing, long-term care and hospice facilities.
“They are in the community, yet those groups have been carved out,” she said. “I can remember the governor saying that if we put them in that she would veto the original legislation. That does continue to be a concern of mine.”
Residents and employees of assisted-living centers in Kansas have so far accounted for about 1,700 fatalities during the pandemic.
There is potential House Bill 2126 could resolve the immunity issue for benefit of Kansas adult care homes, community mental health centers and developmental disability service providers. It’s scheduled to be voted on Wednesday by the full House.
Instead of relying on an affirmative defense in civil suits for damages, administrative fines or penalties for a COVID-19 claim, the House bill would deliver to these businesses immunity from lawsuits if management operated in substantial compliance with public health guidance. The House bill’s pandemic shield would be retroactive to March 2020.
“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,” James Krehbiel, president of Bluestem Communities in North Newton, Hesston and McPherson. “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.”
The House bill was introduced at the request of LeadingAge Kansas and the Kansas Health Care Association, but the measure attracted broad support from businesses seeking to be covered by the umbrella statute. The bill was opposed by AARP Kansas, Disability Rights Center of Kansas, Kansas Advocates for Better Care, Kansas Bar Association and the Kansas Trial Lawyers Association.
Joseph Molina, who represents the Kansas Bar Association, said the organization couldn’t justify immunity from civil liability at adult care facilities that have been the scene of so much tragedy.
