New York’s hospital, nursing home COVID-19 liability protections poised for repeal

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New York ;egislation nixing broad legal protections for healthcare providers during the pandemic stands ready to become law after receiving the approval of veto-proof majorities in the Assembly and state Senate.

The vote drew the condemnation of healthcare and nursing home industry representatives, who called the move premature.

“What if the variants do something unexpected? What happens if something goes awry in the near future?” asked Southern New York Association President Neil Heyman, whose group represents long-term-care facilities in New York City, Long Island and Westchester. “I think people should still be protected until we reach herd immunity and this thing is gone.”

The provisions were drafted by the Greater New York Hospital Association and became law as part of the budget passed last spring, as the Emergency or Disaster Treatment Protection Act. The law shields healthcare providers and their facilities from civil or criminal liability for incidents related to care they provide during the pandemic, as long as they act in good faith. The protections do not apply to willful or intentional criminal conduct, recklessness or gross negligence.

State lawmakers already voted in the summer to limit the law’s protections for providers treating non-COVID-19 patients. The current bill, which the Senate approved unanimously Wednesday after it passed the Assembly, would entirely repeal it.

The governor’s office did not respond to requests for comment on the legislation and whether Andrew Cuomo would sign it.

But the legislature has enough votes to override a veto by the governor: Only one lawmaker, Republican Assemblywoman Marjorie Byrnes, voted against it.

Queens Democrat Ron Kim, who sponsored the Assembly’s bill, said the immunity provisions were a “clear mistake” that disincentivized for-profit providers from spending the most they could to protect their employees and patients.

Lawmakers first introduced the bill in May, but it died in committee. It regained momentum after a January report by Attorney General Letitia James found that the state had under-reported the COVID-19 deaths of nursing home residents by as much as 50%. In that report, James called on the legislature to eliminate the immunity provisions.

“While it is reasonable to provide some protections for healthcare workers making impossible healthcare decisions in good faith during an unprecedented public health crisis, it would never be appropriate or just for nursing home owners to be given blanket immunity for causing harm to residents,” James said in a statement after the Senate’s vote last week.

Stephen Hanse, president of the New York State Health Facilities Association, said the law is important because federal and state rules related to the pandemic have often differed. The association represents adult care and assisted-living facilities in the state.

“Providers were dealing with constantly changing healthcare directives,” Hanse said. “Sometimes providers don’t know what to follow.”

Heyman, of the Southern New York Association, said he did not know what his group’s next steps would be in the fight for continuing immunity.

In response to the industry arguments, Kim said he is sympathetic to providers that did everything they could to protect people when supplies were scarce and there was less information on how COVID-19 transmission worked. Now, he said, that is not the case.

“There’s no reason we should continue to have this kind of immunity,” Kim said. “We know how to deal with COVID. We know how to invest in protection.”

New York ;egislation nixing broad legal protections for healthcare providers during the pandemic stands ready to become law after receiving the approval of veto-proof majorities in the Assembly and state Senate.

The vote drew the condemnation of healthcare and nursing home industry representatives, who called the move premature.

“What if the variants do something unexpected? What happens if something goes awry in the near future?” asked Southern New York Association President Neil Heyman, whose group represents long-term-care facilities in New York City, Long Island and Westchester. “I think people should still be protected until we reach herd immunity and this thing is gone.”
The provisions were drafted by the Greater New York Hospital Association and became law as part of the budget passed last spring, as the Emergency or Disaster Treatment Protection Act. The law shields healthcare providers and their facilities from civil or criminal liability for incidents related to care they provide during the pandemic, as long as they act in good faith. The protections do not apply to willful or intentional criminal conduct, recklessness or gross negligence.

State lawmakers already voted in the summer to limit the law’s protections for providers treating non-COVID-19 patients. The current bill, which the Senate approved unanimously Wednesday after it passed the Assembly, would entirely repeal it.

The governor’s office did not respond to requests for comment on the legislation and whether Andrew Cuomo would sign it.

But the legislature has enough votes to override a veto by the governor: Only one lawmaker, Republican Assemblywoman Marjorie Byrnes, voted against it.

Queens Democrat Ron Kim, who sponsored the Assembly’s bill, said the immunity provisions were a “clear mistake” that disincentivized for-profit providers from spending the most they could to protect their employees and patients.

Lawmakers first introduced the bill in May, but it died in committee. It regained momentum after a January report by Attorney General Letitia James found that the state had under-reported the COVID-19 deaths of nursing home residents by as much as 50%. In that report, James called on the legislature to eliminate the immunity provisions.

“While it is reasonable to provide some protections for healthcare workers making impossible healthcare decisions in good faith during an unprecedented public health crisis, it would never be appropriate or just for nursing home owners to be given blanket immunity for causing harm to residents,” James said in a statement after the Senate’s vote last week.

Stephen Hanse, president of the New York State Health Facilities Association, said the law is important because federal and state rules related to the pandemic have often differed. The association represents adult care and assisted-living facilities in the state.

“Providers were dealing with constantly changing healthcare directives,” Hanse said. “Sometimes providers don’t know what to follow.”

Heyman, of the Southern New York Association, said he did not know what his group’s next steps would be in the fight for continuing immunity.

In response to the industry arguments, Kim said he is sympathetic to providers that did everything they could to protect people when supplies were scarce and there was less information on how COVID-19 transmission worked. Now, he said, that is not the case.

“There’s no reason we should continue to have this kind of immunity,” Kim said. “We know how to deal with COVID. We know how to invest in protection.”

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