NY Gave Nursing Homes Sweeping Pandemic Immunity. Now Some Lawmakers Want To Roll It Back

When Attorney General Letitia James released her damning report on the State Department of Health’s oversight of nursing homes last month, much of the focus was on how the state severely undercounted deaths from COVID-19 there. After the report estimated nursing home deaths could be as much as 50 percent beyond the official public tally, the state quickly revised their figures, eventually publishing numbers that pushed the tally 63 percent beyond what it had been just days earlier. The most recent tally shows that more than 15,000 New Yorkers died in nursing homes during the pandemic.

But another element of the AG report went overlooked—that a policy forced into last year’s budget by Governor Andrew Cuomo may have contributed to the suffering in nursing homes as the pandemic first hit. James’s office argued that the sweeping immunity from lawsuits granted to nursing homes and hospitals had far-reaching, and perhaps unintended, consequences.

“As written, the immunity laws could be wrongly used to provide any individual or entity from liability, even if those decisions were not made in good faith or motivated by financial incentives,” the report read.

James recommended a repeal of the immunity provisions made possible by Cuomo’s office because they “can provide financial incentives to for-profit nursing home operators to put residents at risk of harm.” With the immunity shield in place, nursing homes could have been “refraining from investing public funds to obtain sufficient staffing to meet residents’ care needs, to purchase sufficient PPE for staff, and to provide effective training to staff to comply with infection control protocols during pandemics and other public health emergencies.”

It was a direct rebuke of a law that a select number of state legislators have been trying to strike from the books since it first appeared in the budget last spring without their consultation.

“It’s one of the more egregious abuses of power I’ve ever seen,” said State Senator Alessandra Biaggi, a Bronx Democrat and frequent Cuomo critic. “One of the most evil.”

In Albany, the state budget is where unrelated policy is often inserted, and it’s not uncommon for 11th hour additions that legislators barely have time to consider. A “no” vote on a controversial policy item can also mean torpedoing the entire budget. With a pandemic raging and the state encountering its worst crisis in modern times, few Democrats wanted to do that.

The language of the immunity provision, as written in consultation with healthcare lobbyists, was remarkable in its scope. Not only were families of those who died from COVID-19 in nursing homes and hospitals blocked from bringing lawsuits. Almost all treatments, even those unrelated to coronavirus, were covered under the law, preventing New Yorkers from bringing ordinary malpractice suits.

New York was one of at least 20 states that created some sort of legal immunity for nursing homes and hospitals, but the extent of the shield—encompassing ordinary malpractice suits—was unique. Connecticut recently announced it would be ending some COVID liability protections for hospitals and nursing homes.

The blanket immunity extended from March until Cuomo signed a bill partially repealing the provision in August. For advocates, family members of those who had died of COVID-19, and progressives in the state legislature, the repeal was a disappointment because it was prospective, not retrospective. The immunity shield still protected nursing homes and healthcare facilities during the worst months of the pandemic.

In addition, the repeal did not impact coronavirus-related deaths and injuries. It merely allowed nursing homes and hospitals to be held liable in lawsuits and criminal prosecutions for care provided to non-COVID patients.

Now, some Democrats are hoping to go further. Biaggi’s bill, first introduced last year, would end the immunity shield for coronavirus cases. The partial repeal, she said, “didn’t give recourse to the thousands of families who lost loved ones in the early months of the pandemic. It didn’t account for the budget language that took away their rights. It was not enough.”

Ron Kim, the State Assembly co-sponsor of the immunity repeal legislation, said that if the bill became law, the state attorney general would be able to prosecute some nursing home and healthcare facilities if there were cases of criminal negligence where operators “knowingly didn’t do enough to protect lives.”

Importantly, the legislation would establish violations of laws and regulations as “negligence” and would allow lawsuits over non-economic loss, since the current state law requires an elderly person in a nursing home or a family of a victim prove a specific economic loss. Since residents of nursing homes and long-term care facilities are typically in weaker health when they begin their stay—and care is already quite expensive—proving this in court can be very difficult to do.

“We need to get it right this time,” Kim said.

If retroactive immunity were repealed, a flurry of lawsuits could theoretically endanger nursing home operators and put them out of business. As a hedge against such a possibility, Kim suggested a state-sponsored victim compensation fund, akin to what was created by the federal government to help those impacted by the September 11 attacks.

In her report, James alluded to what Kim and other Cuomo critics have long alleged: that some for-profit nursing home operators had a financial incentive to accept coronavirus patients and then not offer adequate care because the immunity shield was in place. Caring for sick patients can be expensive; at the same juncture, certain COVID-19 or rehab patients coming from hospitals can be quite lucrative for the facilities, since Medicare reimburses the care at least partially.

“It created an atmosphere where nursing homes felt they had an extra layer of immunity,” said Bill Hammond, the senior fellow for health policy at the right-leaning Empire Center. “You could argue they had a financial incentive to take certain patients.”

Hammond, who has studied New York’s nursing home industry extensively, said the nursing home operators were placed in a very difficult situation themselves because the governor's health department, under a controversial March directive later repealed in May, ordered facilities to readmit residents who had tested positive for COVID-19 in hospitals.

In the earliest days of the pandemic, some immunity likely needed to be put in place, at least for hospitals, because the virus was so new and doctors and nurses needed to treat patients aggressively without fear they would be immediately sued, Hammond argued. “I sympathized with the general direction of what they were doing,” he said, referring to the Cuomo administration.

A spokesperson for the New York State Health Facilities Association, a group that represents assisted living homes, did not return a request for comment.

The fate of Biaggi and Kim’s bill remains uncertain. A spokesman for Cuomo, Rich Azzopardi, did not return a request for comment, but the legislation would likely not garner Cuomo’s support in the short-term. Neither Assembly Speaker Carl Heastie nor Senate Majority Leader Andrea Stewart-Cousins have signaled a full repeal of the immunity provision will be a part of their 2021 legislative agenda, with their focus chiefly on raising revenue to offset pandemic-induced shortfalls.

“It’s a hard bill to push through but we have the report now from the Attorney General that gives us not just another layer of relevance but importance,” Biaggi said. “It gives us the validation we need.”