On October 7, 2022, New York’s Appellate Division, Fourth Department issued its critical decision in Antonella Ruth v. Elderwood at Amherst, et al., CA 22-00069 regarding whether the repeal of the Emergency or Disaster Treatment Protection Act (“EDTPA”), and the civil immunity it granted to nursing homes and other healthcare providers in providing medical services in response to COVID-19, was retroactive or prospective. The Fourth Department affirmed the ruling of the New York Supreme Court, Erie County, which granted defendants-respondents’ motion to dismiss on immunity grounds, holding that the repeal of the EDTPA was not retroactive, and thus defendants-respondents were immune from suit.

The EDTPA was enacted on April 3, 2020 (retroactive to March 7, 2020), and was implemented to “promote the public health, safety and welfare of all citizens” by protecting healthcare facilities and healthcare professionals (including nursing homes and nursing home professionals) from civil liability, except in the instances of gross negligence, that may result from treatment of individuals with COVID-19 under conditions associated with the COVID-19 public health emergency. Immunity applied as long as three conditions were met: (1) the services were arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law; (2) the act or omission was impacted by decisions or activities that were in response to, or as a result of, the COVID-19 outbreak and in support of the state’s directives; and (3) the services were arranged or provided in good faith. The services include those provided by nursing homes and services related to the diagnosis, prevention, or treatment of COVID-19; the assessment or care of an individual with a confirmed or suspected case of COVID-19; and the care of any other individual who presented at a healthcare facility or to a healthcare professional during the period of the COVID-19 emergency declaration.

EDTPA repealed

After an investigation by Attorney General Letitia James into the impact of the EDTPA on the care and treatment of nursing home residents, the EDTPA was repealed on April 6, 2021.

The issue presented to the Fourth Department in Ruth was whether the April 6, 2021 repeal was retroactive to March 7, 2020, or whether it was only prospective beginning on April 6, 2021. If retroactive, there would be no immunity for any healthcare providers in civil litigations of providing medical services in response to COVID-19, even during the 13-month time period between March 7, 2020 and April 6, 2021, when the EDTPA was implemented. If prospective, then healthcare providers would have no immunity beginning on April 6, 2021 and moving forward. 

The Fourth Department stated that when considering retroactive application of new legislation, the court must consider if the new legislation attaches new legal consequences to events completed before its enactment. A statue impacts substantive rights if it impairs rights a party possessed when it acted, increases the party’s liability for past conduct, or imposes new duties with respect to transactions already completed. In this instance of whether the legislation impacts the substantive rights, there is a presumption against retroactivity that is “deeply rooted” and based on fairness considerations that dictate individuals should have an opportunity to know what the law is and to conform their conduct accordingly. To justify retroactive application, there must be “clear expression of the legislative purpose” which assures the legislative body affirmatively considered the potential unfairness of retroactive application and determined it is an “acceptable price to pay for the countervailing benefits.” The ultimate question comes down to one of statutory interpretation – did the legislature express a clear intent to apply the legislation retroactively? 

No legislative intent to apply retroactively

Ultimately, the Fourth Department determined no legislative intent for the EDTPA repeal to apply retroactively, and therefore it only applied prospectively.  In Ruth, the Court held retroactive application would impact the substantive rights of defendants-respondents’ past acts or omissions and would expand the scope of liability significantly based on conduct that was immune before repeal. The Court looked to the statutory text of the repeal as the “clearest indicator of legislative intent,” and found the repeal legislation contains no express statement of retroactivity, while the enactment legislation did include such express language.  The Court also reviewed the transcripts of floor debates in the New York Senate and Assembly discussing the proposed repeal bill. During the debates, several members expressed their understanding that the repeal was to be applied prospectively only. While the repeal bill’s sponsor expressed his belief the repeal should apply retroactively, he acknowledged the issue would be left to the courts to determine because express language regarding retroactivity was absent from the bill’s text. 

Appeal likely

The Fourth Department’s decision is a matter of first impression with significant statewide implications on the healthcare industry, and impacts thousands of plaintiffs and future plaintiffs with potential claims. Given the magnitude of this issue and its impact on nursing home and healthcare providers that are defendants in COVID-19 related legislation, an appeal of the Fourth Department’s ruling to the Court of Appeals is likely imminent. We are closely monitoring this issue as it makes its way through New York’s appellate courts.