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July 28, 2020

Legislation Limiting Immunity for COVID-19-Related Health Care Services Advances to NYS Governor's Desk

On July 23, the NYS Legislature advanced legislation (S. 8835/A.10840) to limit the immunity originally granted to health care providers and other entities in the 2020-21 budget while fighting the spread of COVID-19. The legislation is intended to narrow the scope of immunity to certain health care professionals treating patients during COVID-19.

Sponsors of the bill include Senator Luis Sepulveda and Assemblyman Ron Kim—both of whom have emphasized the right of New Yorkers to have recourse should they or a family member encounter neglect or misconduct by a health care professional during the crisis. Senate Majority Leader Andrea Stewart-Cousins explained that while the initial legislation was passed during the height of the pandemic when the health care system and frontline workers were facing an unprecedented challenge, the state has moved past the initial crisis stage and, therefore, limiting the immunities under the law is a necessary next step. After being passed by the NYS Senate and Assembly late last week, the bill was delivered to Governor Cuomo’s office.

Among the most significant changes to the statute is the removal of immunity protections for health care facilities and health care professionals “arranging for” health care services. This amendment is largely in response to the excessive number of COVID-19 deaths in nursing homes and other residential health care facilities during the pandemic. The bill’s sponsors claim families who’ve lost a loved one in a nursing home during the pandemic deserve answers as well as increased transparency and accountability from the health care system. In particular, the legislation seeks to hold nursing homes and other health care facilities accountable for failing to prevent the spread of COVID-19.

As explored in a prior alert, nursing homes have been the subject of broader civil and criminal enforcement efforts—at both the state and federal levels—since the early months of the pandemic. These state and federal efforts have included large-scale investigative initiatives and sharp increases in inspections and compliance reviews, which show no sign of slowing down. As of July 25, the NYS Department of Health reported 6,400 confirmed or presumed COVID-19 deaths in nursing homes.

Additional changes to the immunity statute include removal of the word “prevention” of COVID-19 from the definition of health care services as well as the clarification that the immunity applies to “the assessment or care of an individual as it relates to COVID-19, when such individual has a confirmed or suspected case of COVID-19.”

Barclay Damon attorneys are ready to help health care providers and facilities navigate the scope of immunities afforded to them under the evolving immunity statute. To avoid claims of negligence and failure to exercise a reasonable standard of care, we strongly advise health care providers to document all services rendered, particularly the steps taken in the assessment and care of a confirmed or suspected COVID-19 case.

If you have any questions regarding the content of this alert, please contact Linda Clark, Health Care Controversies Team leader, at lclark@barclaydamon.com; Mary Connolly, associate, at mconnolly@barclaydamon.com; or another member of the firm’s Health Care Controversies 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. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com or any member of the COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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