New York’s Emergency Disaster Treatment Protection Act Provides Broad Immunity for Hospitals and Nursing Homes Related to Treatment of COVID-19 Patients and Other Residents

On March 25, 2020, New York’s Department of Health issued an Advisory to nursing home administrators, hospital discharge planners and others regarding nursing homes pertaining to the expedited receipt of residents returning to nursing homes from hospitals. The Advisory prohibited nursing homes in New York from denying admission or re-admission to a resident based upon a confirmed or suspected positive COVID-19 diagnosis.

The full text of the Advisory is available here.

The Advisory was of great concern to nursing home administrators and owners, who were already dealing with staffing shortages, because the Advisory required nursing homes to admit COVID-19 positive patients even if they did not have sufficient personnel, equipment (such as personal protective equipment), or testing to care for and treat COVID-19 positive residents.  The risk of future civil liability actions related to the treatment of COVID-19 patients and other residents at the facilities was a substantial concern.

Subsequently, on April 6, 2020, New York State passed the Emergency Disaster Treatment Protection Act (EDTPA). The EDTPA provides immunity to hospitals, nursing homes, administrators, nursing aides, nursing attendants, EMTs, home health care workers, physicians, and other health care professionals that arise from alleged decisions, actions, and/or omissions related to the care of individuals with COVID-10 from Governor Cuomo’s initial emergency declaration on March 7, 2020 through its expiration. The legislation was included in New York’s budget for fiscal year 2021 and creates a new Article 30-D of the Public Health law and provide broad immunity so long as the health care providers were acting in good faith.

However, immunity under the statute is not unlimited. The statute does not provide immunity for damages or injuries that were caused due to willful or intentional criminal misconduct, gross negligence, reckless misconduct, and/or intentional infliction of harm. Significantly, decisions by the facility resulting from a resource or staffing shortage will not fall into this exception, and therefore, are immune from future civil or criminal liability.

Overall, the EDTPA should significantly lower the risk to nursing homes and other healthcare facilities and staff, and their insurance carriers, who are anticipating future civil and criminal lawsuits arising from this pandemic, especially since nursing homes are reporting issues obtaining equipment and testing and are dealing with nursing home workers that have fallen ill with COVID-19 themselves. The statute allows hospitals and nursing homes in New York to focus on patient care rather than worrying about future litigation.

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

Other state governors and legislators have enacted similar emergency executive orders and legislation providing immunity to health care providers from civil liability. New Jersey, Michigan, Illinois, Connecticut, and Kentucky already have enacted similar laws, and other states are expected to enact them in the future.

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