Virginia General Assembly extends civil immunity to assisted living facilities during pandemic

By: - September 4, 2020 5:33 pm

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Legislation extending civil immunity to assisted living facilities, hospices and adult day cares during the COVID-19 pandemic passed through the Virginia General Assembly this week.

Both bills passed with little discussion over objections from groups like AARP Virginia, which said, in letters to House Majority Leader Charniele Herring, D-Alexandria, and Senate Judiciary Committee Chairman John Edwards, D-Roanoke, that the legislation could “strip away the rights and protections” of residents.

“Pursuing a neglect or abuse case against [a long-term care] provider in court is not easy to do,” the letter adds. “No family member who has lost a loved one due to neglect or abuse pursues this course of action lightly. It is always an option of last resort, but it must remain an option.”

Virginia code already extends liability protections to certain medical providers during disasters and emergencies, except in cases of “gross negligence or willful misconduct.” In late April, Gov. Ralph Northam issued an executive order clarifying that the COVID-19 pandemic counted as a disaster under state law and outlining that shortages of protective equipment, drugs, trained medical staff and other resources could reasonably limit the ability to provide care.

But existing state code and the executive order only extended protections to predefined health care providers, which include hospitals and nursing homes but not assisted living facilities and other senior care centers. Del. Rodney Willett, D-Henrico, who sponsored the House version of the bill, said the legislation was an effort to extend protections to providers who had been equally hit by the ongoing viral pandemic.

“I think if we’ve seen anything during this crisis, it’s that these facilities are on the front lines,” said Willett, who was asked to carry the bill by the Virginia Health Care Association-Virginia Center for Assisted Living and other affected industry groups. “They’re doing everything that other health care providers are, which is everything in their power to keep people healthy. But it’s difficult to do that when this pandemic has put them at such a disadvantage.”

As of Friday, there were a total of 9,488 COVID-19 cases linked to long-term care facilities and 1,376 deaths — more than half of the state’s total fatalities from the virus. Willett’s bill, which is identical to the version passed by the Senate, also extends liability protections to private care providers licensed through the Virginia Department of Behavioral Health and Developmental Services.

Both bills include emergency clauses, which means they’ll go into effect as soon as they’re signed by Gov. Ralph Northam. And unlike similar legislation still in the House, they’re tailored to the governor’s state of emergency, which means the added protections will sunset at the end of the pandemic.

Willett said the narrow scope of the bills was key to pushing them through the General Assembly’s special session, which was intended to address the COVID-19 pandemic and criminal justice reform. The Senate version of the bill passed unanimously on Thursday in a 36-0 vote, and the House voted 84-13 on Friday to advance Willett’s legislation.

But opponents say the bills give blanket immunity to an industry with long-standing patient care issues and little oversight. Natalie Snider, the state advocacy director for AARP Virginia, said she hoped there would be efforts to roll back the already existing immunity for nursing homes given documented failures with infection control and staffing shortages that existed even before the pandemic. When legislators began introducing bills to expand immunity to assisted living facilities, Snider said the AARP switched its focus to fighting the legislation.

“What we don’t want to do is strip further rights from families and residents,” she added. Both she and Del. Dawn Adams, D-Richmond — who voted against the bill in the House — pointed out that most nursing homes and assisted living facilities have been in lockdown since the beginning of the pandemic, restricting visits from family and the state’s long-term care ombudsmen who serve as resident advocates. In its letters to lawmakers, AARP Virginia described the lack of oversight as “alarming.”

“Advocates will say they’re worried about a flood of lawsuits, and we don’t want that to happen,” Snider added. But she said the legislation would force families to prove gross negligence or willful misconduct — both with much higher burdens of proof — if a resident died in a facility’s care.

Dana Parsons, the vice president and legislative counsel for LeadingAge Virginia, an association of nonprofit senior centers, said nothing in the legislation prevented a family or resident from filing suit against a provider. And other supporters argued the bills were necessary given how difficult it became for senior living facilities to provide care during the pandemic.

“If we get another wave where we can’t keep up with having enough COVID tests, enough PPE — your staff gets eviscerated because all of them have the flu and can’t come in — it’s that type of thing we’re facing,” added Scott Johnson, the legislative counsel for VHCA-VCAL. “We all hope to avoid it, but somethings in these situations, you get blindsided by a lack of resources.”

But Adams, a licensed nurse practitioner who previously worked as the director for DBHDS’ Office of Integrated Health, said the bill eroded protections for some of the most vulnerable Virginians, including the elderly and mentally disabled who receive care from private health care workers. 

“These are not the places that should get blanket immunity for withholding care,” she said. “The proportion of death amongst the elderly has been phenomenal. But what’s also undercounted is the proportion of people who are isolated and alone and no longer have the checks and balances of their families or of agency oversight.”

Greater immunity protections have been a focus of the medical industry as a whole since the early days of the pandemic. Major players such as the Medical Society of Virginia and Virginia Hospital and Healthcare Association originally urged Northam to clarify the state’s existing projections and asked that they be extended to other types of facilities. 

Del. Chris Head, R-Botetourt, has a bill that would go even further in extending protections by permanently amending the types of facilities included in the state’s definition of health care provider. 

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Kate Masters
Kate Masters

An award-winning reporter, Kate grew up in Northern Virginia before moving to the Midwest, earning her degree in journalism from the University of Missouri. She spent a year covering gun violence and public health for The Trace in Boston before joining The Frederick News-Post in Frederick County, Md. While at the News-Post, she won first place in feature writing and breaking news from the Maryland-Delaware-DC Press Association, and Best in Show for her coverage of the local opioid epidemic. Before joining the Mercury in 2020, she covered state and county politics for the Bethesda Beat in Montgomery County, Md.