NY Nursing Home Immunity Under Fire With 6,000 Dead

By Frank G. Runyeon
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Law360, New York (June 11, 2020, 10:23 PM EDT) -- A cadre of New York state lawmakers on Thursday announced a campaign to repeal a nursing home liability shield, with the stated goal of holding health care facilities accountable "for harm and damages incurred" during the COVID-19 pandemic.

Decrying a nursing home virus death toll that has soared into the thousands, nearly 20 Assembly members and State Sen. Alessandra Biaggi have declared war on the "blanket corporate immunity" law, seeking to create "a legal pathway that could uncover evidence of poor care" for families of the deceased who believe their loved ones were victims not only of a pandemic but also of nursing home neglect.

Buried deep in an early-April budget bill, New York's Emergency Or Disaster Treatment Protection Act, known as "30-D," loosened record-keeping requirements and immunized health care providers from criminal and civil liability as long as they are responding to the COVID-19 emergency in good faith.

Understaffed and undersupplied nursing home administrators were relieved when it passed, but as the deaths mounted advocates feared the state law would hide deadly neglect. A number of lawmakers now believe the advocates were right.

"As the COVID-19 pandemic has progressed in New York State, it is now apparent that negligence by administrators and executives of nursing homes has occurred at an extraordinary degree," the stated justification for the Assembly bill reads. "The consequences have been tragic."

As of June 9, more than 6,000 nursing home residents are confirmed or presumed to have been killed by the pandemic virus, according to the facilities' own reporting to state health officials.

"Repealing 30-D allows families to pursue a process in which they can be heard and seek corrective actions so their loved ones' didn't die in vain," said Queens Assembly Member Ron Kim, whose borough has seen an estimated 900 nursing home deaths.

"While it is abundantly clear that nursing homes have not received the full support that they need to weather this pandemic, that does not mean we completely strip away their responsibility for the care of our loved ones," Biaggi said, arguing that repeal would grant families the "transparency and accountability they deserve."

Nursing home industry organizations responded to the bid to retract the immunity shield with scorn, with Stephen B. Hanse, president of the New York State Health Facilities Association saying the repeal bill "attempts to disparage the extraordinary efforts of New York's frontline caregivers who continue to make substantial sacrifices to safeguard New York's most vulnerable men and women."

Hanse called such protections "common in declared times of public health emergency" and added that cases of extreme wrongdoing are not protected by 30-D.

"It is important to note that in instances of gross negligence and reckless misconduct, providers and health care workers are exempt from New York's liability protections," Hanse said before turning his attention to the repeal bid. "Unfortunately, this legislation disregards these facts."

The intent of the Kim-Biaggi bill is to be retroactive, effectively wiping out any extra legal cover nursing homes thought they had during the COVID-19 pandemic, the lawmakers said. But this is warranted, the lawmakers argue, given the damage the law has already done.

Kim told Law360 on Thursday that his staff found that, as of May, 70% of U.S. COVID-19 deaths have occurred in states that offered "early corporate immunity," arguing that the shield was "sending the nursing home facilities the wrong message" that they would not be held accountable for providing negligent care.

"They always knew during this time they knew they couldn't be held liable or sued by the families," Kim said. "It was a perfect storm of a lack of accountability."

Moreover, Kim said his analysis of the difference in language between Gov. Andrew Cuomo's late March executive order — which provided a measure of immunity for health care workers — and the language of 30-D, which was only inserted in the late stages of budget bill negotiations, showed that it principally expanded protection to well-connected executives and investors.

This also has the effect, Kim argues, of blocking nursing home workers' lawsuits against their employers because the shield extends to their choices during the pandemic. To prove his point, Kim said lobbyists literally wrote the bill.

A powerful hospital lobbying group, the Greater New York Hospital Association, wrote a letter to its members as soon as the budget was finalized celebrating the impending passage of 30-D, which said it "drafted and aggressively advocated for this legislation."

GNYHA did not immediately respond to a request for comment.

Assemblyman Richard Gottfried, chair of the health committee since 1987, who supports Kim's bill, said that the repeal effort was, in essence, an attempt to un-swallow a bitter pill that was forced on the legislature at the last moment of the budget negotiations by the leadership of the Assembly, the Senate, and the governor himself.

"The vast majority of legislators did not know it was there," Gottfried said, admitting that he was aware of the provision but was powerless to stop its passage.

Giving a nod towards the powers that be, the veteran politician said that "the obstacles to repeal are pretty hefty."

"The bill is at the beginning of an uphill climb," Gottfried said. It may well take a couple of bad stories for the bill to get momentum."

Rich Azzopardi, senior adviser to Cuomo, derided the criticism of the immunity law as "craven politics," noting that it was passed by 111 lawmakers and arguing that the measure was required to recruit "96,000 volunteers — 25,000 from out of state, to help fight this virus."

"If we had not done this, these volunteers wouldn't have been accepted and we never would have had enough front line health care workers," Azzopardi said. The immunity provision applies the legal standards of negligence applied in the state's "Good Samaritan law" to "the emergency that coronavirus created," he added.

Lawmakers have scheduled a virtual town hall meeting for Friday afternoon, where they say an eclectic group of family members — from hedge fund traders to hospital workers — plan to share stories of how they believe they lost a loved one to neglect during the pandemic.

Kim said several were preparing to file lawsuits.

--Editing by Peter Rozovsky.

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

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