As an update to our prior alert, as of April 7, 2021, NYS Governor Cuomo signed legislation proposed by the NYS legislature that fully repeals the State’s COVID-19 immunity statute—the Emergency or Disaster Treatment Protection Act (EDTPA) under Article 30-D of the Public Health Law.
The EDTPA largely immunized health care facilities and providers from criminal and civil liability for any harm or damages alleged to have been sustained relating to the diagnosis, prevention, or treatment of COVID-19. It was met with strong opposition from lawmakers who argued the law improperly protected certain providers and facilities from being held accountable for deaths caused by neglect during the COVID-19 pandemic. For that reason, the bill’s sponsors claimed that the intent of the repeal is to deprive nursing homes of immunity for the time period beginning March 7, 2020, through April 3, 2020—when the protections were most broad following the statute’s enactment. During that time, nursing homes reported over 1,300 confirmed and presumed COVID-19 deaths at almost 300 different facilities. Thereafter, in August 2020, changes to the immunity statute included removal of various immunity protections for health care facilities and professionals, including those immunities related to “arranging for” health care services and clarifying that the immunity applies to the assessment or care of an individual as it relates to COVID-19.
While the current bill does not include language that would retroactively erase the immunity provisions that were in place for the last year, it is anticipated that the issue of retroactivity will be hotly contested in the courts.
While New York State is on the track of immunity restriction, other states and courts have taken a contrary approach and are broadening immunity for COVID-related claims. For example, on March 29, 2021, Florida passed sweeping legislation that provides civil immunity from COVID-19 liability. The law provides several powerful protections in a new statute (section 768.38, Florida Statutes) for businesses, educational institutions, governmental entities, and religious institutions, and separately (section 768.381, Florida Statutes) for health care providers so long as the alleged negligence does not involve gross negligence or intentional misconduct. The law establishes a one-year statute of limitations period to sue from the date of death, hospitalization, or COVID-19 diagnosis that forms the basis of the claim. Furthermore, it applies to claims that accrued before the enactment of the law and within one year following the governor’s signing of it. The law, however, does not apply to lawsuits that have already been filed.
Another example of a broad immunity approach can be found on the federal level. The broad reach of federal statutory immunity was recognized in Gilbert Garcia et al v. Welltower OpCo Group LLC, et. al.1, where the federal district court held that the Public Readiness and Emergency Preparedness Act (PREP Act) (42 U.S.C. § 247d–6d) provides senior living facilities with a broad exemption from civil liability for losses related to the use of “countermeasures” during a declared public health emergency. A narrower approach can be seen in Sherod v. Comprehensive Healthcare Management Services, LLC2, which held that a nursing home was not protected from civil liability under the PREP Act because the alleged claims were premised on a failure to provide countermeasures and thus not “causally connected to [the] use of covered countermeasures.”3
It remains to be seen whether courts will follow Garcia in holding that the PREP Act serves as protection for nursing homes from COVID-19-related liability for COVID-19-related injuries. While this protection from liability may only be applied on a case-by-case basis, it is imperative that nursing homes and other senior living communities thoroughly document steps and actions taken to implement COVID-19 countermeasures.
Barclay Damon attorneys will continue to closely follow legislative developments related to COVID-19 immunities. Meanwhile, providers must continue to thoroughly document services provided in the assessment and care of a confirmed or suspected case of COVID-19 in the event that the facility or provider is alleged to have provided inadequate care.
If you have any questions regarding the content of this alert, please contact Linda Clark, Health Care Controversies Practice Area chair, at lclark@barclaydamon.com; Mary Connolly, associate, at mconnolly@barclaydamon.com; Jen Cruz, law clerk, at jcruz@barclaydamon.com, or another member of the firm’s Health Care Controversies Practice Area.
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 another member of the COVID-19 Response Team at COVID-10ResponseTeam@barclaydamon.com.
1 20-02250JVS (C.D. Ca. Feb. 10, 2021).
2 20-cv-1198 (W.D. Pa. Oct. 16, 2020).
3 It should be noted that the Sherod decision was decided before the HHS Office of General Counsel (OGC) released its OGC Advisory Opinion 20-21, “On the Public Readiness and Emergency Preparedness Act Scope of Preemption Provision” (AO 21-01), where OGC interprets the PREP Act to be a complete preemption of state laws. Therefore, the Sherod decision was decided in the absence of guidance from HHS, which could have changed the outcome of the case because courts must give deference to interpretations of statutes made by those government agencies charged with their enforcement.