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April 6, 2020

2021 NYS Budget Grants Immunity to Health Care Providers During COVID-19, Shortens the Statute of Limitations for Collections, and More

There are critical provisions relating to health care facilities and providers buried in the newly enacted NYS budget. Most significant is the new Emergency or Disaster Treatment Protection Act, which confers immunity to health care facilities and professionals during the COVID-19 crisis. A few other noteworthy provisions in the budget are highlighted below.

Emergency or Disaster Treatment Protection Act

A new Article 30-D of the Public Health Law has been added, titled the Emergency or Disaster Treatment Protection Act (EDTPA). This act takes effect immediately and is retroactive to the governor’s March 7, 2020, COVID-19 emergency declaration. 

Who receives the immunity? 

The EDTPA grants immunity to hospitals, nursing homes, and facilities licensed or authorized under Article 28 of the Public Health Law and Articles 16 and 31 of the Mental Hygiene Law as well as “health care professionals,” broadly defined as:

  • Physicians, physician assistants, specialist assistants, pharmacists, nurses, licensed midwives, psychologists, social workers, mental health practitioners licensed under Article 163 of the Education Law, respiratory therapists and technicians, and clinical laboratory technicians
  • Nursing attendants or certified nurse aides, including trainees
  • Certified first responders and emergency medical technicians 
  • Home care services workers
  • Health care workers providing services under the COVID-19 emergency rule 
  • Health care facility administrators, executives, supervisors, board members, trustees, and others responsible for directing and supervising or managing a health care facility and its personnel or serving in that role

What is covered? 

Health care facilities and professionals now have immunity from civil or criminal liability for any harm or damages alleged to have been sustained as a result of an act or omission for services that relates to the diagnosis, prevention, or treatment of COVID-19; assessment or care of an individual with a confirmed or suspected case of COVID-19; or the care of any other individual who presents for health services during the period of the COVID-19 emergency declaration, so long as the criteria below are met:

  • The health care facility or health care professional is arranging for or providing health care services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law.
  • The act or omission occurs in the course of arranging for or providing health care services, and the treatment of the individual is 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 services are provided in good faith.

Are there limits on immunity?

Immunity does not apply if the harm or damages were caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm. However, decisions resulting from a resource or staffing shortage will not fall within this exception.

When does immunity expire?

The immunity will expire whenever the state of emergency declared by Governor Cuomo is lifted.

Finally, the EDTPA extends liability protections to any volunteer organization that has made its facilities available to support response activities made by the state during the COVID-19 emergency. A volunteer organization acting in good faith will not be subject to criminal or civil liability for any harm or damages, regardless of the cause. Volunteers are afforded immunity unless it is established that harm or damages were caused by willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.

New Statute of Limitations for Medical Debt

There has been a significant change to the statute of limitations for collecting a medical debt. A new Section 213-d has been added the Civil Practice Law and Rules that shortens the statute of limitations for bringing an action on medical debt. Previously, a lawsuit could be commenced against a debtor within six years of the date the debt was due. Effective April 3, 2020,health care professionals authorized under Title 8 of the Education Law and Article 28 facilities must commence an action to recover a medical debt within three years of the date of treatment.

Increasing Availability of Telehealth

Section 2999-ee of the Public Health Law is amended to authorize increased application of telehealth in behavioral health, oral health, maternity care, care management facilities; in emergency departments; and for high-need populations by empowering the commissioners of OMH, OASAS OPWDD to permit additional acceptable modalities for telehealth, including audio-only telephone communications, online portals, and survey applications and by expanding the categories of originating sites at which a patient may be located.

Limit on Payment Denials Due to COVID-19

A new Section 4902(13) of the Insurance Law and a new Section 4902(k) of the Public Health Law have been added to provide that services rendered by an Article 28 hospital to an enrollee of a health plan to treat COVID-19 during a declared state disaster emergency related to COVID-19 will not be denied upon retrospective review on the basis that the services were not medically necessary.

Provisional Credentialing

Both the Insurance Law (4803(3)) and the Public Health Law (4406-d(c)) have been amended to expedite provider credentialing with payors. The new provision applies to hospitals, diagnostic and treatment centers, and OMH providers that employ a newly licensed physician, a physician who has recently relocated to New York, or a physician who previously participated with an insurer and who has changed their corporate relationship so that a new tax ID number is issued. If the facility has a contract with a health plan and participates in the in-network portion of an insurer’s network, the new physician shall be deemed “provisionally credentialed” and may participate in network so long as 1) the payor has received a completed credentialing application and 2) the payor is notified in writing that the physician was granted hospital privileges. 

A provisionally credentialed physician may not be designated an insured’s primary care physician until fully credentialed by the payor. Once fully credentialed, the insurer shall pay for all services provided by the physician for up to 60 days after submission of the completed application. If the application for full credentials is denied by the insurer, the facility can only bill the patient for co-payments, coinsurance, or deductibles.

This amendment is scheduled to take effect with credentialing applications received on or after July 1, 2020.

Summary

The FY 2021 budget recognizes the spread of COVID-19 has and is expected to continue to have a significant impact on the public health and welfare as well as personal and national economics. The legislature and governor have responded with laws designed to mitigate the impact on health care providers. The broad immunity granted by the EDTPA is unprecedented, but is unquestionably necessary to protect vulnerable health care facilities, providers, and workers who are doing their best to respond to this pandemic under crisis conditions. 

Finally, although the new budget bill does contain important protections, it also significant limits the time facilities and providers have to commence collections actions against individuals for medical debts. Health care entities must take note of the new, shortened statute of limitations and plan accordingly.


If you have any questions regarding the content of this alert, please contact Fran Ciardullo, special counsel, at fciardullo@barclaydamon.com or another member of the firm’s Health Care & Human Services Providers Team.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. You can reach our COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.
 

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