New York state is walking back its blanket protections granted to senior living communities and nursing homes during the COVID-19 pandemic.
Gov. Andrew Cuomo signed a law Monday narrowing the scope of immunity to certain healthcare professionals who treat people during the COVID-19 state of emergency.
The law repeals protections in the public health law related to the Emergency or Disaster Treatment Protection Act, which provide immunity from liability for “any harm or damages” sustained as a result of providing healthcare services during the COVID-19 pandemic. The law protected hospitals, nursing homes and other healthcare facilities, including assisted living communities, shielding facilities from lawsuits alleging misconduct due to resource or staffing shortages.
The law amends the definition of healthcare services eligible for immunity from liability by removing “prevention” of COVID-19 from the definition of healthcare services. It also clarifies that the immunity applies to the assessment or care of an individual with a confirmed or suspected case of COVID-19, and it removes immunity protections for a healthcare facility or healthcare professional “arranging for” healthcare services.
In a release posted on the state Senate’s website, lawmakers said they sought to “balance the protections afforded to our heroic healthcare workers while recognizing the rights of their patients when provided care.” The law limits immunity to the “actual care and treatment when related to the diagnosis or treatment of COVID-19.”
“The legislation that was advanced during the budget and at the height of the pandemic provided enhanced immunity to COVID-affected healthcare facilities and professionals,” said state Senate Majority Leader Andrea Stewart-Cousins. “Our healthcare system and workers were facing an unprecedented challenge in a crisis situation and protections were needed.”
Assembly bill sponsor Ron Kim said the law will ensure that New Yorkers have a right to recourse should they encounter neglect or misconduct by unscrupulous healthcare providers of facilities.
“Moving forward, nursing homes and other healthcare 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,” Kim said.
In the meantime, national Republican-backed coronavirus relief legislation is moving toward five-year lawsuit protections for healthcare providers.
The Safeguarding America’s Frontline Employees To Offer Work Opportunities Required to Kickstart the Economy (SAFE TO WORK) Act, part of a $1 trillion package of bills making up the Health, Economic Assistance, Liability, and Schools (HEALS) Act, includes liability protections for healthcare providers, including entities and individuals who work for them.
The SAFE TO WORK Act would cover coronavirus-related medical liability claims against healthcare providers for five years.
Several states passed laws or issued executive orders providing COVID-19 liability immunity to long-term care providers and facilities. New York, in particular, had offered blanket liability protection shielding healthcare corporations from legal action, a move critics said would compromise patient care and safety during the pandemic and set a troubling precedent for the future.
Sharona Hoffman, co-director of the Case Western Reserve University School of Law Law-Medicine Center, said a proposed congressional bill to provide physicians and healthcare professionals with liability protection for delivering care during the COVID-19 pandemic is “reasonable because we want frontline workers who may be overwhelmed with cases and a lot of unknowns about the virus to focus on treating patients rather than worrying about litigation.”
This level of protection is not unprecedented, she said, because limited protection already exists under the Public Readiness and Emergency Preparedness Act, and many states have immunity statutes or executive orders.
What she said she finds troubling, however, is Senate Majority Leader Mitch McConnell’s goal to shield businesses from lawsuits alleging that businesses spread the coronavirus to their workers and customers.
“Individuals would not be able to sue alleging that they contracted the disease on premises because of the business’ irresponsible conduct,” Hoffman said. “To my mind, that is unacceptable, and it’s definitely unprecedented. It will remove business’ incentives to do the utmost to promote public health measures, such as requiring masks and social distancing, asking employees about symptoms and whether they tested positive for COVID-19, etc.”
Hoffman said Congress “should be working to promote workplace safety, not to disincentivize it.”
In other coronavirus-related news:
- The Legacy at Southpointe Drive, a Greenville, SC, assisted living community, attributes its zero cases of coronavirus to stringent cleaning protocols, COVID-19 and health screenings, and monthly town halls meetings to discuss safety practices within the community.
- An editorial from The News & Observer outlined the accounts of six elder care facilities in Eastern North Carolina that did not evacuate its residents as Hurricane Florence bore down on them two years ago, saying the scenario is likely to happen again, complicated by the pandemic. The editorial board outlined recommendations for Gov. Roy Cooper to prioritize the protection of assisted living and nursing home residents.
- Forty-nine Arizona assisted living communities received up to $43 million in PPP loans. There are approximately 2,200 assisted living communities in the state. Critics say the industry does not have a plan for how the dollars will be used to improve resident care, safety, staffing or purchasing personal protective equipment.
- COVID-19 outbreaks in long-term care facilities make up approximately half of the recorded outbreaks in Washington state, a new report from the Washington Department of Health shows. Outbreaks in assisted living communities, nursing homes and adult family homes peaked in April, but the virus continued to make its way into these settings throughout the summer.
- A York County, PA, couple wanted one special person at their wedding, so they exchanged vows in front of their only living parent, who lives in the memory care unit of Country Meadows of York. The couple had their ceremony on the back patio of the retirement home.
- The COVID-19 pandemic has led to a significant increase in video visits between people and their physicians, but for many older adults, the shift has cut them off from care, rather than connected them. A study by the University of California, San Francisco, found that more than one-third of adults aged 65 or more years face potential difficulties seeing their physicians via telemedicine. Another study from the University of Pittsburgh and Harvard Medical School found 41% of Medicare beneficiaries lacked access to a computer and almost as many didn’t have a smartphone with a wireless data plan.
- National seniors housing operator Meridian Senior Living released a new YouTube video — “Cleanliness & Safety in Our Communities” — the first of a series of videos centered on how its communities are adapting to keeping residents safe and active during the global pandemic.
- Middle and high school students involved with the charity Bring Out the Best (BOB) Project, brought some color to Seneca Manor, a Penn Hills, PA, assisted living community. They painted butterflies, hearts, fish, birds, a sunrise and other images on exterior windows and a patio door.