New York Lawmakers Seek to Repeal Statute Granting Immunity to Nursing Homes

In a previous post, we wrote about New York’s Emergency Disaster Treatment Protection Act (EDTPA), which was enacted on April 6, 2020 as part of the state budget. EDTPA provides immunity to hospitals, nursing homes, administrators, nursing aides, nursing attendants, EMTs, home health care workers, physicians, and other health care professionals that arises from alleged decisions, actions and/or omissions related to the care of individuals with COVID-19 from Governor Cuomo’s initial emergency declaration on March 7, 2020 through its expiration. The statute creates a new Article 30-D of the Public Health law and provides broad immunity so long as the health care providers were acting in good faith.

The full text of New York Public Health Law 3080-3082 is available here.

The EDTPA was reportedly enacted to increase capacity and provide quality care during the pandemic.

Recently, however, Gov. Andrew Cuomo’s actions regarding his handling of nursing homes during the COVID-19 pandemic and the EDTPA have been criticized. Critics claim that the immunity provided to nursing homes and their executives are linked to higher death rates in nursing homes during the pandemic. They claim the statute makes it easier for nursing home executives and corporations to profit off unsafe business practices.

As a result, New York Assemblyman Ron Kim and more than a dozen co-sponsors are seeking to repeal the Emergency Disaster Treatment Protection Act. A copy of Assemblyman Kim’s bill is available here.

“Behind closed doors and in secrecy, nursing home executives managed to push Governor Cuomo into adding a provision in this year’s budget that insulates them from criminal or civil liability during the COVID-19 pandemic,” said Assemblyman Kim said.  Kim argues that Cuomo should have done more to protect nursing home residents instead of granting broad immunity to facilities caring for them.

Assemblyman Dan Quart, a bill co-sponsor, claims the statute granting immunity to nursing homes “gives operators a license to neglect and abuse already vulnerable populations.”

Notably, the immunity protections under the EDTPA do not provide blanket immunity to nursing homes. Rather, liability may arise from gross negligence, reckless misconduct, or intentional malfeasance. Further, New York’s EDTPA is one of many state statutes and executive orders that provide COVID-19 civil liability immunity to senior care facilities, such as nursing homes.

It remains to be seen if Assemblyman Kim’s bill will have sufficient support to be passed by the New York State Assembly or the New York Senate—or if will ever find its way to Gov. Cuomo’s desk. However, nursing homes, hospitals, and other healthcare facilities will be closely watching the legislative battle regarding immunity during this crisis.

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