Two Statehouse bills mostly touted by lawmakers as great for businesses include language that could cause issues in health care facilities, particularly nursing homes.
Senate Bill 1 and House Bill 1002 would both grant civil immunity to businesses, including health care organizations, from being sued for coronavirus-related issues. The bills were fast-tracked at the Statehouse. Both passed their respective chambers a month into session, and SB 1 had passed both chambers Thursday.
President Pro Tem Rodric Bray, R-Martinsville, said the bills were a priority because businesses needed to “get back out” with confidence that they would not be sued by customers or employees due to COVID-19 exposure.
But because of the fast-track, critics say the repercussions of SB 1 and HB 1002 might slip through the radar unnoticed, arguing that the legislation is unnecessary, the language is too broad and it could negatively impact nursing home residents by granting blanket immunity.
Concerns of a ‘free pass’ for nursing homes
Ashley Hadler, an Indianapolis attorney who specializes in nursing home abuse cases, said one issue with the proposed legislation is that health care organizations already have civil immunity during a state of emergency, which Gov. Eric Holcomb enacted last March. On top of that, Indiana’s medical malpractice laws are some of the most restrictive in the country, making related lawsuits difficult to begin with, she said.
The main issue, though, is the bills are not clear enough, which could be dangerous, Hadler said. Both bills vaguely define what “arising from COVID-19” or “a result of COVID-19” mean in terms of lawsuits.
SB 1, which is likely the main civil immunity bill, says claims “arising from COVID-19” means exposure or contraction of the disease, but also services, treatment or other actions performed for COVID-19, which is still too broad, she said.
“I mean you can see how you can make an argument that anything that anyone has done since last March is a result of COVID-19. I’m working from home today as a result of COVID-19,” Hadler said.
Lumping nursing homes into the mix of businesses that could be granted immunity drew concerns that health care facilities could hide behind the broad language and blame COVID-19 in neglect cases.
Nursing homes struggled during the ongoing coronavirus pandemic. More than 5,000 nursing home residents have died from complications related to COVID-19 in Indiana. But it wasn’t much better before that. IndyStar reported last year that Indiana nursing homes ranked 48th in the country in patient to caretaker ratios. The investigation also revealed that 73% of facilities had been cited for infection control failures in the last three years.
State lawmakers are trying to give nursing homes a “free pass” with SB 1 and HB 1002, said Morgan Daly, director of public policy for the Indiana Statewide Independent Living Council, a non-profit, governor-appointed council that promotes independent living.
“They were already doing a bad job, and when COVID came in, they just kept doing a worse job. We don’t want to award bad actors for bad policies,” Daly said.
The bills say immunity is not granted when there is “gross negligence” or “willful or wanton misconduct,” but there are no definitions on what constitutes negligence in terms of protecting against or treating COVID-19.
“Because there isn’t a standard, you’re giving too much subjective power to judges to decide,” Daly said.
There is no way to predict how a law this broad could be interpreted, Hadler said.
“We don’t have clear precedent — we don’t have clear court decisions — about what is and what is not grossly negligent to know how broadly this will be interpreted,” Hadler said.
HB 1002 goes further than SB 1, saying certain practices such as low staffing due to the virus or a lack of supply of personal protective equipment are not considered negligent.
“I see it as a threat to anyone who lives in a nursing home now. I see it as a lack of accountability,” Hadler said. “If I told any of my clients that (a nursing home) would be excused for not having enough staff in the building, they would never choose to have them admitted there.”
Statehouse debate
Republican authors and supporters of the bills say the language is clear enough to prevent “bad actors” from abusing immunity.
Local Rep. John Young, R-Franklin, co-author of HB 1002 and co-sponsor of SB 1, said the intention is to not let health care providers abuse civil immunity.
“We don’t want them to be able to allege that due to COVID they couldn’t produce enough employees, that they’re immune from grandpa starving in his bed. That is what we’re wrestling around with,” Young said.
Bray also said he does not want to see nursing homes hide behind COVID-19 immunity.
“You don’t want to necessarily treat nursing homes differently than anyone else, but there are some concerns,” Bray said. “If they were acting negligently in some way, you don’t want to give them defense that would allow them to just hide behind COVID for anything.”
But neither lawmaker said they thought there was an issue with the language in the bills, and SB 1 passed Thursday in the House by a vote of 72-21. Now, it will go back to the Senate, where members will consider in the next month whether to accept the House’s changes. Then it would go to Holcomb’s desk.
Rep. Matt Lehman, R-Berne, said Thursday during House floor debate SB 1 is clear, dismissing Democrats who said lawmakers are “sending the wrong message.”
“The chapter does not affect the duty of care owed by a nursing home notwithstanding any policy or treatment. They still have to do their jobs,” Lehman said. “It seems kind of egregious that we’re looking at them and saying, ‘You’re the problem.’”
HB 1002 remains in the Senate. It will likely be stripped down to combine with SB 1, said Sen. Mark Messmer, R-Jasper, author of SB 1 and sponsor of HB 1002.
HB 1002 includes more details about the liability of health care facilities, such as the list of actions that are not negligent. Messmer did not say what would stay and what would go in either bills.
“We’ll just comb through that bill, see what’s left, and probably amend it down quite a bit,” Messmer said. “We didn’t want to try to expedite that because every word makes a difference.”
