Assisted living and other long-term care operators are the victims of politics via legislation signed last week by New York Gov. Andrew Cuomo that repeals blanket immunity protections for pandemic-related efforts, according to one industry representative.
Senate Bill S5177, sponsored by Sen. Alessandra Biaggi (D-Bronx/Westchester), repeals Article 30-D of the Public Health Law, the Emergency or Disaster Treatment Protection Act with the intent of holding healthcare facilities, administrators and executives accountable for harm and damages incurred from treating individuals with COVID-19. Also applying to nursing homes and other healthcare facilities during the pandemic, it immediately leaves providers open to potential civil and criminal liability related to COVID-19 treatment.
The act had protected hospitals, nursing homes and other healthcare facilities, including assisted living communities, shielding them from lawsuits alleging misconduct due to resource or staffing shortages.
Stephen Hanse, president and CEO of the NYS Health Facilities Association / NYS Center for Assisted Living, told McKnight’s Senior Living that the repeal is contrary to the original intent of the Legislature, which was to provide limited liability protections in exigent, emergency circumstances: the COVID-19 public health emergency. The protections, he added, were aimed at helping providers deal with contrary and often conflicting federal, state and local orders, rules and regulations.
“The law provided a level of certainty — follow our rules and orders, and if you do that in good faith, we’re all in this together,” Hanse said, emphasizing that the state and country are still in the pandemic and remain under a public health emergency declaration. “It’s unfortunate this just became a political issue,” he said. “The Legislature did not look at the substance of the issue and the importance of protections when you are in a public health emergency.”
Hanse, who is an attorney, said his concern is that “unscrupulous lawyers will be looking to take advantage of very unprecedented circumstances.”
“The men and women who work in nursing homes, hospitals and healthcare throughout New York were heroes fighting on the front line,” Hanse said. “It’s unfortunate politics truly dictated the repeal of this bill. At the end of the day we are all in this together. We are working to protect and safeguard our patients, residents and staff — who do the very best they can in difficult circumstances.”
Biaggi, the senator, said that the Emergency or Disaster Treatment Protection Act “egregiously uses severe liability standards as a means to insulate healthcare facilities and specifically, administrators and executives of such facilities, from any civil or criminal liability for negligence. Repealing this article is a much-needed step to holding healthcare administrators accountable and doing everything possible to stop more preventable deaths from happening.”
New York previously walked back blanket protections granted to senior living communities and nursing homes by signing a law last summer narrowing the scope of immunity to certain healthcare professionals who treat people during the COVID-19 state of emergency. That law amended the definition of healthcare services eligible for immunity by removing “prevention” of COVID-19 from the definition of healthcare services. It also clarified that the immunities applied to the assessment or care of an individual with a confirmed or suspected case of COVID-19, and removed immunity protections for a healthcare facility or healthcare professional “arranging for” healthcare services.
Hanse said the amendments last August tightened the law and made it specific only to COVID-related circumstances. Moreover, he said, the law never provided protections for willful or intentional criminal misconduct, gross negligence or reckless behaviors.
S5177 fully repeals the remaining protections under the immunity provision.
The move by New York runs counter to actions taken in other states that are extending immunity protections to senior living providers. At least a dozen states have adopted immunity for businesses to limit their exposure to COVID-19-related lawsuits. They include Alabama, Arkansas, Florida, Iowa, Kansas, Louisiana, Nevada, North Carolina, Ohio, Oklahoma, Tennessee, Utah and Wyoming