NY lawmakers pass bill to repeal COVID-19 liability protections for nursing homes, hospitals

NY lawmakers pass bill to repeal COVID-19 liability protections for nursing homes, hospitals

By David Robinson, Democrat and Chronicle

New York lawmakers passed legislation Wednesday that repeals COVID-19 legal liability protections granted to nursing homes and hospitals amid growing scandals encircling Gov. Andrew Cuomo.

The Senate voted unanimously to approve legislation that would repeal the Emergency Disaster Treatment Protection Act, which provides immunity to health care providers from potential liability arising from certain decisions, actions and omissions related to the care of people during the COVID-19 pandemic.

“The tragic situation in nursing homes during the COVID-19 pandemic has exposed a dire need to guarantee greater transparency and accountability,” Senate Majority Leader Andrea Stewart-Cousins, D-Yonkers, said in a statement Wednesday.

“This legislation, in addition to the nursing home-related reforms recently advanced by the Senate Democratic Majority, continues our strong commitment to prioritizing the wellbeing, rights, and needs of residents and their families,” she added, referring to the bill repealing liability protections.

The Assembly already passed a similar bill, and Cuomo has yet to comment on whether he would sign or veto the legislation. His office didn’t immediately return a request for comment Wednesday.

Sen. Alessandra Biaggi, D-Bronx/Westchester, championed the repeal bill, which states in its justification statement: “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 to an extraordinary degree.”

In addition, this legislative package seeks to ensure nursing home residents have necessary information on the Long-term Care Ombudsman Program, and requires that the patients’ bill of rights is offered in New York’s six most spoken languages.

It would also make information related to nursing home assets and operations publicly available, according to a Senate majority statement.

What advocates say about COVID liability repeal

AARP New York State Director Beth Finkel praised lawmakers for voting to repeal the immunity provisions.

“Pursuing legal action is not an easy thing to do, and no family member who has lost a loved one due to neglect or abuse pursues this course of action lightly,” Finkel said in a statement.

“Restoring families’ right to sue would also provide incentives to nursing homes to ensure quality care,” she added.

Finkel also addressed the importance of signing the bill into law.

“We urge the Governor to sign this bill promptly so the families of the nursing home residents we have lost in the last year once again have this right, which helps form the cornerstone of our society,” she said.

In contrast, Lawsuit Reform Alliance of New York Executive Director Tom Stebbins criticized the lawmakers, noting New York still faced a public health crisis.

“Last year, the Legislature wisely voted to protect our doctors, nurses, frontline healthcare workers, and the facilities where they work from an onslaught of litigation,” Stebbins said in a statement.

“The same people we applauded in the streets, we banged pots and pans on our fire-escapes, we called them heroes – if passed, this bill will strip them of liability protections and put them in the sights of avaricious attorneys who refuse to let a good crisis go to waste,” he added.

How COVID liability protections unfolded

The move comes after lawmakers and Cuomo approved a law in April 2020 that required either gross negligence or intentional misconduct by health care providers to prove liability.

A bill approved by lawmakers and Cuomo last July narrowed the scope of immunity liability due to coronavirus care, but some advocates say it didn’t go far enough to hold bad actors accountable.

The amendments last summer prospectively protected health care professionals who are directly diagnosing and treating COVID-19 patients from legal action, but it allowed lawsuits against facilities in cases that do not involve direct treatment of the virus.

For example, advocates said, it would allow loved ones to take legal action if any facility failed to prevent a patient from contracting COVID-19, such as not properly isolating nursing home residents or hospital patients before they got the virus.

Now, lawmakers are calling for a full repeal of the law, citing in part the findings of a state Attorney General’s Office report in January that found the Cuomo administration was underreporting nursing home COVID-19 deaths by 50%, increasing the death toll to more than 13,000.

The Senate bill also cited details of the AG’s report regarding concerns about the liability.

The report called for repealing the liability noting it may have provided nursing homes with “financial incentives to put residents at risk of harm” by refraining from investing public funds to obtain sufficient staffing and purchase sufficient personal protective gear, as well as providing effective infection-control training for staff, the bill notice stated.

Ron Kim, the Democratic Queens Assemblyman and vocal critic of Cuomo’s handling of nursing homes, has asserted Cuomo let one of his top political donors, the Greater New York Hospital Association, draft the legal immunity provisions for health care providers it represents, calling it a possible crime against humanity on social media.

During legislative hearings in August, the trade group’s leadership contended it lobbied for the immunity provisions and submitted draft language to the governor’s office with ideas, which is the same approach it takes for lobbying other issues to state lawmakers.

During a legislative hearing in February, Biaggi also asked state Health Commissioner Dr. Howard Zucker if he supported the immunity provisions when they passed, and whether that support continued.

“I support what we did with the immunity at that point in time,” Zucker said, citing the higher infection rates last spring.

Zucker added the infection “numbers are coming back down now” and indicated changes can be made to the immunity provisions.

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