March 30, 2022
By Nadeem Bezar, Field Center Advisory Board Member; Partner, Kline & Specter
HB 2213—a proposed bill in Pennsylvania—aims to reduce the compensation that a child can receive from a jury award after being harmed, abused, or even killed while receiving care from entities that provide foster care, adoption services, residential care, or treatment.
Children are among our most vulnerable populations. The children affected by HB 2213 are an even more vulnerable segment of that population, because these children oftentimes have no one to care for them, or those who care for them are incapable of doing so properly – which is why they are (supposed to be) protected by one of the welfare service categories mentioned in this legislation.
It is alleged that entities that provide such services “are finding it increasingly cost prohibitive – and sometimes literally impossible” to obtain professional liability insurance.”  Instead of promoting safety—which would ultimately make insurance more affordable and available—HB 2213 incentivizes bad conduct by protecting egregious behavior against children. These children have already suffered—how does reducing their jury-awarded recovery solve an alleged insurance crisis?
And why are the people tasked with protecting marginalized children contemplating solving this alleged crisis on the backs of the same children who have been harmed, abused, or killed?
HB 2213, the Limitation on Damages in Action Against Children and Youth Social Service Agency Act, caps damages for entities that provide foster care, adoption, residential treatment, and other placement services. Specifically, HB 2213 caps damages for nonprofit organizations that are subject to the requirements of 55 Pa. Code Ch. 3680 or Ch. 3800. Chapter 3680 applies to foster care and adoption services. Chapter 3800 applies to child residential facilities and child day treatment centers. This includes child detention centers, transitional living facilities, and facilities that serve children with disabilities (so long as the facility serves exclusively children).
It is important to note that although Chapters 3680 and 3800 apply to both for-profit and not-for profit organizations, the cap granted by HB 2213 only applies if the facility is a nonprofit. Such nonprofit organizations would be granted the same cap on damages that applies to local political subdivisions ($500,000). 
HB 2213 provides an exception to the cap so long as the claim arises “from conduct that constitutes an offense enumerated under 42 Pa.C.S. § 5551(7) if the injuries to the plaintiff were caused by actions or omissions of the nonprofit organization.” The enumerated crimes listed under Section 5551(7), assuming that the victim is minor, include: human trafficking, involuntary sexual servitude, rape, statutory sexual assault, involuntary deviate sexual intercourse, sexual assault, and aggravated indecent assault.
There are a few things to note. First, the cap applies to any offense so long as the offense is not sexual in nature. Shaken-baby syndrome, physical or mental abuse, deprivation of care, malnutrition, etc., would all be protected by this legislation. Second, it is important to note how a cap on damages works. The child or their family (or estate) would file a lawsuit against the organization to recover for the harm, abuse, or death that occurred. The jury would hear / see all the evidence of the atrocities that occurred and enter a verdict. If the jury felt that the child should receive compensation for the tragedy that befell them, they would calculate an amount that includes past and future medical bills, loss of future wages, loss of life’s consortium, pain and suffering, etc.
The jury is not told that there is a cap on damages. The jury awards damages and is then excused. The judge would then, as a matter of law, reduce the jury verdict to whatever the cap is – in this case, $500,000.
No matter how horrific the tragedy, no matter how much it will cost to provide care and treatment for that child, no matter how much the jury awarded or their reasons, the damages are reduced to the statutory cap.
This legislation further hurts children already hurt by reducing their recovery – for battery, for malnutrition, for not receiving contracted services, for abuse, etc. – because of an alleged insurance crisis. How does punishing children who have been harmed while residing in foster care, adoption facilities, or residential treatment centers solve this alleged insurance crisis? There may be ways to help offset the cost of insurance for these facilities, but depriving harmed children of their settlement or judge—or jury-awarded recovery—should not be the solution. Caps on damages is not a serious effort in this regard.
HB 2213 reduces the exposure of a defendant to $500,000. Fear of repercussion often governs human nature, and it certainly governs business behavior. If an organization can engage in bad conduct, knowing what the worst-case scenario is, there is little incentive to do the right thing.
Furthermore, caps on bad conduct are unfair to organizations that behave appropriately and professionally and uphold the best interests of the children.
It should also be noted that the cap applies to all cases, regardless of whether the conduct was negligent or intentional. HB 2213 reduces the recovery available for children who have been beaten, malnourished or starved, not properly cleaned, not properly educated, or children who did not receive the services that the county hired the organization to provide for them. This bill incentivizes egregious conduct against this already vulnerable and marginalized population.
It was only a few short years ago that the Legislature made a massive overhaul of the Child Protective Services Law. It was as recently as last year that the Legislature advanced a constitutional amendment to eliminate the statute of limitations in cases involving childhood sexual assault. In the wake of these monumental efforts to protect our children, let’s set aside this bill and work together to ensure the tragedies that occur to children in and by these facilities and organizations don’t happen again.
Let’s make Pennsylvania safer for all children, regardless of where or how they were hurt.
Editor’s Note: Portions of this text appeared as Written and Oral Testimony submitted by Nadeem Bezar and the Pennsylvania Association For Justice at the House Children & Youth Committee hearing in opposition to HB 2213 on January 25, 2022.