State lawmakers move to limit nursing home immunity during pandemic

Jul. 25--New York's nursing homes and hospitals would no longer have immunity from some lawsuits stemming from their care of patients during the Covid-19 pandemic under a bill passed by the state Legislature.

Advocates for nursing home residents praised the legislation, while health care facilities worried it could hurt their ability to provide care should the virus rebound.

"We are still in the middle of this pandemic. This legislation would make it that much harder for hospitals and nursing homes to recruit health care workers, expand capacity and provide care to all patients and residents, with or without Covid-19, during a second wave," said Bea Grause, president of the Healthcare Association of New York State.

The aim of the bill is to balance protections to health care workers and facilities during the pandemic while recognizing the rights of patients, lawmakers said.

"This legislation ensures that New Yorkers have access to legal recourse against bad actors, while acknowledging the unimaginable sacrifices of our health care workers," Assembly Speaker Carl Heastie said in a statement.

The legislation, if signed by the governor, would not be retroactive.

"The most significant thing about what they did is, moving forward in time, they stripped back the full blanket of immunity of whatever occurs in a facility non-Covid related," said Bill Ferris, AARP New York state legislative representative.

But Ferris said he is more concerned with looking back at what happened in nursing homes, where more than 6,000 died from the virus.

"Something happened in the nursing homes," he said. "Has that not occurred to anybody in the state that we should try to figure out what happened, and if something bad happened, we are now denying their families a right to the court system?"

The bill, which was delivered to Gov. Andrew M. Cuomo, deletes small portions of the Emergency or Disaster Treatment Protection Act, which was passed as part of the state budget in April.

The act was aimed primarily at protecting doctors, other health care workers and hospitals from being sued for how they handled Covid-19 patients. But it also provided broad legal immunity for nursing homes during New York's state of emergency. It gave facilities immunity for negligent health care services provided to all of their residents, not just those with or suspected of having Covid-19.

The bill passed by the Legislature Friday eliminates the wording that gave facilities and health care professionals legal immunity for the care of any patient or resident during the period covered by the emergency declaration.

The bill also amends the definition of health care services eligible for immunity, so that "prevention" of Covid-19 would no longer be included or qualify for immunity.

Because New York has moved on from the initial crisis stage of the pandemic, "it makes sense to limit the scope of immunity to ensure all New Yorkers are protected," State Senate Majority Leader Andrea Stewart-Cousins said.

But Grause said this is not the time to walk back on the immunity.

"In the midst of this public health emergency, we should be supporting our front-line staff and doing all we can to encourage volunteers to step up during a future surge. This legislation does neither, at the detriment of our health care workers, hospitals, nursing homes and, ultimately, the people who need care," she said.

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