New York Passes Partial Repeal of Liability Protections for Nursing Homes, Other Care Providers

The New York State Senate and Assembly voted on July 23 to partially repeal liability protections granted to nursing homes, hospitals, and other health care facilities as part of the state budget passed in April.

Nexstar Broadcasting initially reported the news July 24.

New York’s budget for fiscal 2021 included the Emergency or Disaster Treatment Protection Act, which protected health care facilities and professionals from liability from treating COVID-19 patients under conditions related to the public health emergency.

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The immunity did not extend to damages or harm from willful or criminal misconduct or gross negligence, though it would cover harm or damages due to “a resource or staffing shortage.”

The amended provisions are meant to balance protections for health care workers with the protection of patient rights, according to a statement from the New York Legislature.

“We could never possibly repay our heroic health care workers for all of their selfless service during this health crisis,” Assembly Speaker Carl Heastie said in a July 23 statement. “This legislation ensures that New Yorkers have access to legal recourse against bad actors, while acknowledging the unimaginable sacrifices of our health care workers.”

The new legislation would change the definition of services eligible for immunity protections by removing “prevention” of COVID-19 from the definition of health care services, and removing immunity protections for a facility or professional “arranging for” health care services, according to the statement. It would also clarify that immunity applies to the assessment or care of an individual with a confirmed or suspected case of COVID-19.

“Families grieving loved ones lost in nursing homes during the coronavirus pandemic deserve answers,” Senate bill sponsor Luis Sepúlveda said in the statement. “This bill allows for better transparency and accountability from our health care system. New Yorkers deserve to know their loved ones are receiving the best care, and this legislation works to remove those immunity protections.”

Assemblyman Ron Kim, who sponsored the Assembly version of the bill, made a similar argument.

“This is a good step toward restoring the rights of patients and nursing home residents that were taken away from them during this pandemic,” he said in the statement. “Moving forward, nursing homes and other health care facilities will be held accountable for failing to prevent the spread of COVID-19 and that is a big win for our families, residents, and workers.”

The question of legal immunity for operators of nursing homes and other health care facilities has emerged as one of the highest-profile controversies of the COVID-19 pandemic. Providers have generally argued that they cannot operate effectively during an unprecedented pandemic with the constant threat of lawsuits, while resident advocates and their families assert that the ability to sue represents a vital avenue of justice for those who have died — as well as a way to motivate operators to rectify infection control and staffing issues.

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