The state Senate voted Thursday night to limit protection, and the Assembly could resume it overnight.
The Democratic-led legislature agreed to sweeping protection in early April, when the virus raged in New York City.
But now, with the virus outbreak tamed and the state having the highest death toll in the country – more than 25,000 confirmed coronavirus deaths statewide, including more than 6,500 in nursing homes and other facilities in the long-term care – many lawmakers have doubts.
The new proposal would significantly reduce the legal immunity provisions, although it does not go as far as some donors originally wanted.
As COVID-19 nursing home deaths continue to mount at shocking rates, The New York Times has spoken to a number of nursing home caregivers about their daily struggles, frustrations to high-risk patients.
“This is a good step in restoring the rights of patients and residents of nursing homes while protecting frontline workers in health care settings,” said Ron Kim, a Democrat from Queens who has initially proposed a broader repeal of protections. He said the current version would still hold healthcare facilities “accountable for failing to prevent the spread of COVID-19 or for arranging for appropriate care of COVID patients.” ”
Nursing homes and hospitals are fighting the proposal. Some say it could hamper care during potential future coronavirus outbreaks that could once again stretch healthcare to the limits, with volunteers and medical students caring for patients in makeshift hospitals.
“The public and the state expect these steps to be taken to meet the extraordinary needs of New Yorkers during a pandemic,” Kenneth Raske, president of the influential Greater New York Health Association, wrote to lawmakers on Tuesday. . “These actions should be protected… Without them, it could be very difficult for hospitals, New York State and local governments to recruit highly skilled volunteers during future outbreaks of COVID-19.”
At least 15 states have provided healthcare facilities and / or providers with some protection against lawsuits resulting from the coronavirus crisis, but New York has gone exceptionally far.
“There was very broad immunity granted when the pandemic was at its peak in New York City,” said State Senator Mike Gianaris, a Democrat from Queens who supports shrinking protections. “I think now we’ve learned a lot more, and we can make sure people aren’t harmed by their health care system and have remedies if they are.
The immunity measure built into the state budget in April was drafted by Raske’s group, which has spent millions on lobbying and political donations in recent years.
The legislation was rare when it applied to both prosecution and criminal prosecution during the COVID-19 emergency.
It allowed legal action for gross negligence, intentional criminal misconduct and certain other egregious wrongdoing, but clarified that shortages of personnel or equipment would not qualify.
The administration of New York Gov. Andrew Cuomo said the measure was necessary for all parts of the health care system to work together in the crisis. Lawyers for nursing home residents, plaintiffs’ attorneys and some lawmakers have said this makes accountability for homes too difficult and benefits them at the expense of their vulnerable residents.
Governor Cuomo provides an update on the coronavirus in relation to retirement homes.
The new proposal leaves many protections intact. But it’s recently clear that they only apply to care provided for COVID-19 itself, and not to other issues that may arise during the pandemic – a fall that injures a resident of a nursing home nurses negligently watched and who do not have the virus, for example. .
Supporters say the change would prevent facilities from using the crisis to evade responsibility for unrelated wrongdoing. But a leader of a large group of nursing homes in New York City says it’s short-sighted and unfair.
Staff and protective equipment shortages and testing limitations have not affected patients infected only with the virus, said Stephen Hanse, president of the New York State Health Facilities Association. He said the proposal “does not include the broad impacts this virus has imposed on all residents, staff and providers.
The proposal also makes changes that Kim says would allow some lawsuits for care arrangements, such as hospitals releasing patients to nursing homes unprepared to care for them.More than 6,300 recovering coronavirus patients were sent from hospitals to nursing homes in New York City at the height of the pandemic, as part of a now reversed state policy that has sparked much debate. Among the points of contention: Some homes and industry groups said facilities were overwhelmed but believed policy required them to admit patients, while Cuomo said homes should not have accepted patients if they were. unable to take care of them.
Asked Wednesday about the proposal to curtail legal protections for healthcare facilities, Cuomo said he “could see the reason” for allowing prosecutions on issues unrelated to coronavirus care, but needed to see the details.
Counsel for nursing home residents, Richard Mollot, called the proposal “a step in the right direction.”
“Nursing home residents deserve more – not less – protections from abuse and neglect,” said Mollot, who heads the Community Long-Term Care Coalition.