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

Virginia General Assembly extends civil immunity to assisted living facilities during pandemic
Virginia Mercury (Source: Getty Images via Virginia Mercury)

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.