NY Bill Would Repeal COVID-19 Immunity For Nursing Homes

By Y. Peter Kang
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Law360 (May 19, 2020, 8:15 PM EDT) -- A Democratic New York assemblyman has introduced state legislation that would repeal criminal and civil liability protections for nursing home administrators during the coronavirus pandemic in a state that has seen the most COVID-19 deaths in the nation.

Assemblyman Ron Kim, D-Flushing, announced Monday that he is seeking to repeal the portion of the Emergency or Disaster Treatment Protection Act that provides nursing home executives with a civil liability shield for any treatment given that is impacted by the novel coronavirus pandemic. The statute was enacted by Gov. Andrew Cuomo last month as part of the state's annual budget bill.

The law, which grants broad immunity to hospitals, nursing homes, physicians and nurses and other health care providers, doesn't bar claims for willful, reckless or criminal misconduct or gross negligence but makes clear that any bad decisions stemming from staffing shortages or a lack of resources can't be considered to be in that category. The law remains in effect for the duration of the state's public health crisis.

But Kim said the gross negligence standard is an extraordinarily high bar that effectively insulates nursing home administrators and executives from civil and criminal liability and results in "zero accountability" for cases involving standard negligence.

Kim alleged that nursing home executives convinced Cuomo to add the statute to the budget bill under the guise that it would protect individual health care professionals on the front lines of the pandemic.

"But in reality, the overwhelming third party claims are against facilities, not individuals," he said in a statement. "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."

The assemblyman said that instead of granting nursing homes immunity, "Governor Cuomo should have fought to do everything possible to indemnify frontline workers and volunteers and save the lives of those trapped in nursing homes exposed to COVID-19."

New York has suffered 20,887 confirmed and probable coronavirus deaths as of Tuesday, according to the state's health department website. Kim's bill, floated as A10427, stated that nearly 5,000 elderly New York residents have died due to COVID-19.

One of the bill's cosponsors, Assemblyman Dan Quart, a Democrat representing parts of Manhattan, said that granting civil immunity to nursing homes "gives operators a license to neglect and abuse already vulnerable populations."

"Civil lawsuits are one of the few tools available to patients and families who want to hold nursing homes accountable for substandard care," Quart said in a statement. "A lack of transparency and accountability, especially in a time of a pandemic, would put residents at enormous risk."

The Emergency or Disaster Treatment Protection Act was enacted April 2 and followed an executive order issued by Cuomo on March 23 that granted temporary immunity to health care providers working in support of the state's COVID-19 efforts, including retired and out-of-state health care professionals.

Earlier this month, the Oklahoma Legislature overwhelmingly passed a bill to shield health care providers from civil liability in connection with coronavirus treatment. The bill was signed into law by Gov. Kevin Stitt on May 12.

Like similar legislation in other states, Senate Bill 300 is meant to protect providers from civil liability that is not the result of gross negligence or willful or wanton misconduct.

Other states such as North Carolina and Pennsylvania also enacted similar legislation in May, following the leads of New York, New Jersey and Massachusetts, which all passed COVID-19 health care immunity laws in April.

Plaintiffs injury attorneys have accused lobbyists for the health care and insurance industries of taking advantage of the COVID-19 pandemic to push for civil and criminal immunity for hospital chains and nursing home companies, to the detriment of patients injured by medical negligence.

--Additional reporting by Sarah Jarvis. Editing by Abbie Sarfo.

For a reprint of this article, please contact reprints@law360.com.

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