On March 24, 2021, the New York State Senate unanimously voted to pass the Treatment Protection Act. The Act will, among other provisions, repeal the criminal and civil immunity that was granted to nursing homes at the onset of the COVID-19 pandemic. The Act already passed the New York State Assembly on March 4, 2021, meaning that it will now be sent to Governor Andrew Cuomo for his signature before it becomes law.
Back on April 3, 2020, the Emergency or Disaster Treatment Protection Act (known as Article 30-D) was enacted, which served to immunize health care providers from criminal and civil liability starting from the date of its passage during the pandemic. Article 30-D followed immunity that was granted to nursing homes via executive order on March 7, 2020, when Gov. Cuomo declared a state of emergency.
Currently, Article 30-D grants civil and criminal immunity to health care facilities and professionals who, in the course of providing COVID-19 treatment in good faith, incur a negligent act or omission. The statute does not provide immunity for willful, intentional, reckless, or grossly negligent conduct. The initial version of Article 30-D applied to all kinds of healthcare treatment, whether related to COVID-19 or not, though a law enacted in August 2020 limited legal immunity under Article 30-D solely to COVID-19 treatment.
Article 30-D has generated controversy, especially in light of the underreporting of nursing home deaths by Gov. Cuomo’s administration. Much criticism was directed at the fact that facility administrators and corporate executives qualified for Article 30-D immunity, instead of being more narrowly tailored to doctors, nurses, and other direct providers of medical care.
If the Treatment Protection Act becomes law, the protections granted to health care facilities under Article 30-D will expire beginning on the date the Act becomes law. Notably, the Act will not completely retroactively erase the immunity provisions of Article 30-D.
Instead, the Treatment Protection Act will retroactively strip nursing homes of immunity for a shorter time period. This period starts from March 7, 2020, when Cuomo’s initial COVID-19 executive order was issued, and lasts until April 3, 2020, when Article 30-D was enacted. This is still significant, considering there are over 1,300 confirmed and presumed COVID-19 deaths in New York nursing homes during this time.
In addition to repealing immunity protections, the Treatment Protection Act also includes several provisions requiring nursing homes to meet additional transparency requirements. These include a requirement for nursing homes to prominently display information on the Long-Term Care Ombudsman Program, as well as a requirement that nursing home assets and ownership information be made public.
Despite unanimous support in the State Senate, some business leaders are concerned about the potential that the Treatment Protection Act creates for increased litigation against hospitals and nurses. The Act opens the door for litigation against nursing homes and other medical providers during the period from March 7 to April 3, 2020, a substantial period of time in the early onset of the pandemic where much less was known about COVID-19. Further, the Act will allow for litigation involving COVID-19 treatment that occurs on and after the date it is enacted. Considering that hospitals and nursing homes will continue to treat substantial numbers of COVID-19 patients following the enactment of the Act, it can be expected that more litigation will follow as well.