On August 3, New York Gov. Andrew Cuomo signed legislation (New York S.B. 8335, enacted Aug. 3, 2020) that scaled back the immunity provisions enacted toward the beginning of the COVID-19 emergency for health care providers. Under the new legislation, immunity from civil litigation and criminal prosecution is only available for the diagnosis of COVID-19, the treatment of COVID-19, and “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.”
The prior version of the legislation (New York Emergency or Disaster Treatment Protection Act, Art. 30-D, N.Y. Pub Health Law, §§ 3080-82, as enacted on Apr. 3, 2020) included immunity not only for COVID-19 diagnosis, treatment, and care, but also for conduct aimed at preventing COVID-19, as well as a general catchall for “the care of any other individual who presents at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration.” The removal of protections for prevention control measures is significant, in particular for nursing homes and similar facilities that are susceptible to allegations that they failed to adequately prevent the spread of COVID-19 among their residents.
The new version of the legislation also narrows the scope of providers who are entitled to immunity. The prior version of the legislation afforded protection to health care providers and practitioners who “arranged” for the provision of health care services covered by the immunity grant. The new legislation narrows the scope of these liability protections to apply only to facilities and providers who directly provide the services.
One area that remains unchanged, however, is that the new legislation retains the exception to immunity for conduct or omissions constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.
The prior version of the legislation was retroactive to the beginning of the COVID-19 emergency declaration on March 7, 2020. The new legislation will not retroactively apply to conduct that took place between March 7 and August 3, 2020 but will apply to all health care providers going forward for the duration of the COVID-19 declaration of emergency.
New York is one of many states that enacted broad immunities in response to COVID-19. It is possible that other states may enact similar reforms. Troutman Pepper continues to monitor the status of applicable immunity grants in other jurisdictions, and it is recommended that providers do the same.