NY Passes Bill To Strip Nursing Homes Of Legal Immunity

By Frank G. Runyeon
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Law360, New York (March 24, 2021, 3:44 PM EDT) -- Albany lawmakers passed a bill Wednesday that will strip New York nursing homes of a legal shield granted at the outset of the COVID-19 pandemic, potentially exposing the facilities to lawsuits for deaths during the early days of the outbreak.

The legislation now awaits the signature of Gov. Andrew Cuomo, who faces an impeachment inquiry following sexual harassment allegations and news that his administration undercounted nursing home deaths in the state by 50%. The revised death toll at long-term care facilities stood at over 15,500 as of March 22, according to the state health department.

The New York State Senate on Wednesday afternoon unanimously passed a clean repeal of the Emergency Or Disaster Treatment Protection Act, known as 30-D, which had largely immunized health care providers from criminal and civil liability since its passage last April. Lawmakers who now oppose the act have argued it inappropriately shielded corporate executives from being held accountable for deaths caused by neglect during the pandemic.

"To this day still families are prevented from holding accountable nursing homes, where their loved ones have died and where they believe that there have been instances not only of misconduct, but of regular negligence," said state Sen. Alessandra Biaggi shortly before the repeal bill moved out of the health committee in mid-March.

The repeal bill does not include language to retroactively erase the immunity provisions that have been in place for the past year. However, the bill's sponsors, Biaggi and Assemblyman Ron Kim, have said the intent of the repeal is to strip nursing homes of any immunity in a 27-day "sliver" of time between March 7, 2020, when the broad legal protections for nursing homes became effective, and April 3, 2020, when the law was enacted.

Kim and Biaggi noted that the state retroactively removed the right of ailing and elderly residents to sue for neglect during that time.

"We believe that this matter ultimately will be resolved in court in terms of retroactivity," Kim told Law360 when the bill passed the Assembly earlier this month, saying he hoped to give plaintiffs' attorneys the opportunity to make that argument.

The potential number of plaintiffs injured in March 2020 is significant. New York nursing homes reported over 1,300 confirmed and presumed COVID-19 deaths at nearly 300 different facilities before April 3, according to state data obtained by The Empire Center through a February court order. Injured patients who received non-COVID-19 care during that time could also file lawsuits.

Buried deep in an early-April budget bill, 30-D loosened record-keeping requirements and immunized health care providers from criminal and civil liability as long as they were responding to the COVID-19 emergency in good faith. Understaffed and undersupplied nursing home administrators were relieved when it passed, but as deaths mounted advocates feared the state law would hide deadly neglect.

A number of lawmakers were quickly convinced the advocates were right and sought an immediate retroactive repeal as in-facility nursing home deaths reached 6,000 in June. But lacking political support for a repeal, the legislature settled for a modest revision in August.

Legislators said they were told by their in-house counsel that retroactively eliminating nursing homes' rights would be unconstitutional, a claim that Biaggi and Kim dispute.

Still, the bill's sponsors acknowledged "serious" political pushback against a full retroactive repeal in explaining their decision to focus on that 27-day sliver of time at the outset of the pandemic.

Kim also indicated that even if they could muster a full retroactive repeal, Cuomo's March 23 executive order waiving medical record-keeping requirements and banning visitors to nursing homes had effectively eliminated plaintiff's chances of prevailing in neglect lawsuits due to a lack of evidence.

The repeal bill will land on the governor's desk amid a reckoning for Cuomo on his handling of nursing homes during the pandemic. He is separately facing mounting allegations of sexual harassment that have triggered an independent investigation by the attorney general and an impeachment inquiry by the Assembly.

The governor's office did not immediately respond to a request for comment on whether he would sign the immunity repeal bill.

--Editing by Marygrace Murphy.

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

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