COVID-19 Immunity for Health Care Services and Nursing Homes May Change Soon in New York

In previous blog posts, we discussed New York’s Emergency Disaster Treatment Protection Act (EDTPA), which was enacted on April 6, 2020 as part of the state budget. The Act provides immunity to hospitals, nursing homes and other health care professionals that arises from alleged decisions, actions and/or omissions related to the care of individuals with COVID-19 from the initial emergency declaration on March 7, 2020 through its expiration. The EDTPA does not provide immunity for intentional criminal conduct, recklessness or gross negligence by a facility or health care professional.

On July 23, 2020, the New York State Senate and Assembly have advanced legislation to limit the immunity provided by the EDTPA, which could have a major impact on the immunity granted under the Act.

The bill was sponsored by Luis Sepulveda in the Senate and was sponsored by Ron Kim in the Assembly and will prospectively protect health care services, professionals, and nursing homes. However, it would allow lawsuits in the future against facilities that do not involve direct treatment of the virus. In other words, the bill would allow family member to take legal action if a facility allegedly failed to prevent a resident or patient from contracting COVID-19, for example, by failing to isolate the resident or patient. It would also allow future lawsuits against facilities for incident or alleged negligent acts unrelated to the COVID-19 crisis, such as alleged negligent falls or incidents. The bill is available to read here.

Sponsors of the bill argue it will keep facilities from using the crisis to avoid liability for unrelated misdeed. However, critics argue that the bill does not go far enough because it does not apply retroactively.

Opponents of the bill argue that staffing and protective equipment shortages not only impacted COVID patients and residents, but had significant effects on residents, staff, and providers. They worry about staffing shortages and protective equipment shortage in the future should infections rise again in New York. They argue the bills should be vetoed by Gov. Andrew Cuomo.

Now that the bill has passed through the Senate and Assembly, it has been sent to Gov. Cuomo’s desk where he has 10 days, not including Sundays, to sign it. Significantly, groups like the American Association of Retired Persons (AARP) are asking their members to contact Gov. Cuomo requesting that he sign the legislation, while New York’s American College of Emergency Physicians (NYACEP) is urging its members to contact Gov. Cuomo and ask him to veto the legislation.

In July, Gov. Cuomo said he believed the bill is consistent with the EDTPA. However, it remains to be seen if he will sign it.

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