New York Rolls Back Immunity to Nursing Homes and Health Care Service Providers

On Monday, August 3, 2020, Governor Andrew Cuomo signed a bill (A.10840/S.8835 Kim/Sepulveda) recently enacted by the New York Legislature that revised the Emergency Disaster Treatment Protection Act (EDTPA). The EDTPA was enacted with the state budget in April and granted broad immunity to certain health care providers and facilities, including nursing homes, regarding good faith actions or omissions undertaken in response to the COVID-19 outbreak. The EDTPA applied retroactively to when Gov. Cuomo first declared a state of emergency in March 2020.

The new law is not a complete repeal of the EDTPA. Instead it partially rolls back certain provisions of the EDTPA and it does so prospectively, not retroactively.

Under the law, nursing homes and health care providers may be held liable moving forward in lawsuits and criminal prosecutions for care to residents and patients that are not related to COVID-19. Thus, the law will allow family members to take legal action if a facility allegedly negligently failed to prevent a resident or patient from contracting COVID-19, for example, by failing to isolate the resident or patient. It will also allow future lawsuits against facilities for incidents or alleged negligent acts unrelated to the COVID-19 crisis, such as alleged negligent falls by residents or patients.

The new law still provides liability protections for nursing homes, hospitals, and their staff and employees that involved situations where they are providing direct care “related to the diagnosis or treatment of COVID-19.” A copy of the legislation is available here.

Advocacy groups representing nursing home residents do not think the new law goes far enough. They believe the law should be applied retroactively to when Gov. Cuomo made his emergency declaration due to the pandemic. These advocacy groups led by some New York State legislators continue to push the Cuomo Administration for a full bipartisan investigation to investigate the deaths of New Yorkers that died of COVID-19 in state regulated nursing homes.

However, nursing homes, hospitals and other health care workers have criticized the roll back of immunity claiming that it could hamper care if there is future surge of the virus in New York. They claim the hearings that took place in Albany earlier this month were sufficient and no further investigation is necessary. It remains to be seen whether a further investigation will take place.

However, now that the law rolling back immunity has been enacted, nursing homes, hospitals and other health care providers are bracing for litigation that has largely been on hold since the beginning of the pandemic.

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