Key Takeaways

• New York nursing homes and health care providers are now susceptible to lawsuits and criminal prosecutions for care provided to patients and residents that are not being treated for COVID-19

• New York Governor Andrew Cuomo has signed legislation revising the state’s Emergency Disaster Treatment Protection Act, which had provided legal immunity to health care and long-term care companies and professionals

• The new law partially rolls back provisions of the EDTPA prospectively, allowing family members to take legal action if a facility allegedly failed to prevent a resident or patient from contracting COVID-19

On Monday, August 3, 2020, New York Governor Andrew Cuomo signed a bill (A.10840/S.8835 Kim/Sepulveda) recently enacted by the state legislature that revised the Emergency Disaster Treatment Protection Act (EDTPA). The EDTPA was enacted with the state budget in April and granted broad immunity to certain health care providers and facilities, including nursing homes, regarding good-faith actions or omissions undertaken in response to the COVID-19 outbreak.  The EDTPA applied retroactively to when Gov. Cuomo first declared a state of emergency in March 2020.

The law that was passed this week was not a complete repeal of the EDTPA; instead, it partially rolls back certain provisions of the EDTPA prospectively, not retroactively. It allows for nursing homes and health care providers to be held liable moving forward in lawsuits and criminal prosecutions for care provided to patients that are not being treated for COVID-19. Thus, the law will allow family members to take legal action if a facility allegedly failed to prevent a resident or patient from contracting COVID-19, for example, by failing to isolate the resident or patient. It will also allow future lawsuits against facilities for incidents or alleged negligent acts unrelated to the COVID-19 crisis, such as alleged negligent falls by residents or patients.

The new law still provides liability protections for nursing homes, hospitals, and their staff and employees regarding situations where they are providing direct care “related to the diagnosis or treatment of COVID-19.”

Advocates for health care organizations including the Greater New York Hospital Association (GNYHA) and New York’s American College of Emergency Physicians (NYACEP) opposed the bill and warned members about the eroded immunity law. However, they are relieved the law that was passed does not entirely repeal the EDTPA.

Groups like the American Association of Retired Persons (AARP) supported the legislation, but were urging New York to completely repeal the legal immunity provided to nursing homes retroactive to when the state of emergency was declared.

Read the legislation here.

For more information regarding how this statute will affect long-term care facilities and their personnel, please contact:

• Caroline J. Berdzik
• Lisa M. Robinson
• Jonathan L. Berkowitz
• Or another member of our Health Care or Long-Term Care practices