On March 24, 2021, New York lawmakers repealed significant protections from COVID-19 related liability for nursing facilities, hospitals, nursing aides, home health care workers, physicians, and other health care professionals. By unanimous vote, the New York State Senate (after approval by the Assembly) passed a bill to repeal the Emergency or Disaster Treatment Protection Act (“EDTPA”). On April 6, 2021, Governor Andrew Cuomo signed the bill into law.
At the onset of the pandemic, lawmakers recognized the need for health care workers to be able to act without fear of lawsuits or being held liable for conditions for which they had limited control. As a result, the EDTPA was enacted into law (retroactive to March 7, 2020) on April 7, 2020. The EDTPA granted health care facilities and health care professionals immunity from any liability (civil or criminal) for any damages alleged to have been sustained as a result of an act (or omission) in the course of providing health care services (except in limited cases, such as instances of gross negligence), if the criteria below was met:
The health care facility or health care professional provided health care services in accordance with applicable law, or otherwise where appropriate pursuant to a COVID-19 emergency rule.
The act or omission occurred in the course of providing health care services and the treatment of the individual was impacted by the health care facility’s or health care professional’s decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives.
The health care facility or health care professional provided health care services in good faith.
At the time of its implementation, the law enjoyed strong support from nursing facility and other health care providers and administrators due to its broad protections. However, nursing facility resident advocates and others were against the law and feared that it would hide instances of neglect. After nursing facility COVID-19-related deaths reached approximately 6,000 in June 2020, some lawmakers attempted to repeal the EDTPA with little success, gaining only a small revision which removed the “blanket immunity” protection while leaving the rest of the law unchanged.
The recent revelations that Governor Cuomo’s administration potentially undercounted death tolls at nursing facilities by 50%—with the accurate amount at 15,500 or more nursing facility deaths—undoubtedly led to this repeal.
Now that this immunity has been eliminated, questions still remain as to the extent of this repeal – including the issue of whether this repeal will only apply prospectively after April 6, 2021. It is possible these issues will ultimately be resolved by the courts.
In light of this repeal, nursing facilities and other health care providers must now prepare for an influx of lawsuits. Furthermore, the fallout from the Cuomo administration’s handling of the pandemic should serve as a warning that going forward, COVID-19 related deaths will be under increased scrutiny.
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