Key Takeaways

• New York State’s Emergency Disaster Treatment Protection Act (EDTPA) provides immunity to health care and long-term care facilities and professionals from arising claims related to the care of individuals with COVID-19

• This immunity is in effect retroactively from the beginning of Gov. Andrew Cuomo’s declaration of a state of emergency on March 7, 2020 through its expiration

• Immunity under the statute is limited and does not cover damages or injuries that were caused due to willful or intentional criminal misconduct, gross negligence, reckless misconduct and/or intentional infliction of harm

In an earlier alert, we wrote about the New York State Department of Health’s March 25, 2020 Advisory: Hospital Discharges and Admissions to Nursing Homes, delivered to nursing home administrators, hospital discharge planners, and others pertaining to the expedited receipt of residents returning to nursing homes from hospitals. The advisory prohibited nursing homes in New York from denying admission or re-admission to a resident based upon a confirmed or suspected positive COVID-19 diagnosis.

Subsequently, on April 6, 2020, New York State passed the Emergency Disaster Treatment Protection Act (EDTPA), which provides immunity to hospitals, nursing homes, administrators, nursing aides, nursing attendants, EMTs, home health care workers, physicians, and other health care professionals from potential liability arising from alleged decisions, actions and/or omissions related to the care of individuals with COVID-19 from Gov. Andrew Cuomo’s initial emergency declaration on March 7, 2020 through its expiration. The legislation was included in New York’s budget for fiscal year 2021 and creates a new Article 30-D of the Public Health law.

Immunity under the statute is limited and does not cover damages or injuries that were caused due to willful or intentional criminal misconduct, gross negligence, reckless misconduct and/or intentional infliction of harm. However, decisions that resulted from a resource or staffing shortage will not fall into this exception.

Overall, the EDTPA should significantly lower the risk to nursing homes and other healthcare facilities and staff and their insurance carriers, who are anticipating future civil and criminal lawsuits arising from this pandemic.

For more information or immediate guidance, contact:

• Caroline J. Berdzik
• Lisa M. Robinson
• Jonathan L. Berkowitz
• On another member of our Long-Term Care practice