As New York’s hospitals and nursing homes face mounting pressure in providing an appropriate response to the COVID-19 pandemic, Governor Cuomo and the New York State Health Department have issued several Executive Orders and Health Directives addressing the expectations of care to be provided to residents in such times, and the liability that facilities may face if they fall short.
Immunity Extended to Healthcare Facilities
We previously discussed Executive Order 202.10 here, which grants immunity to individual health care workers from medical malpractice actions arising from the COVID-19 pandemic. This immunity was recently extended to hospitals, nursing homes, and other facilities licensed or authorized under Article 28 of the Public Health Law and Articles 16 and 31 of the Mental Hygiene Law, through the newly enacted Article 30-D of the Public Health Law, entitled the ‘Emergency or Disaster Treatment Protection Act.’
Article 30-D grants immunity from civil or criminal liability for any harm or damages alleged to have been caused as a result of an act or omission 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
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The care of any other individual who presents for health services during the period of the COVID-19 emergency declaration, so long as the following criteria are met:
- The health care facility or health care professional is arranging for or providing health care services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law;
- The act or omission occurs in the course of arranging for or providing health care services, and the treatment of the individual is impacted by the health care facility or health care professional’s decisions or activities in response to or as a result from the COVID-19 outbreak and in support of the State’s directive; and
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The health care services are provided in good faith.
This immunity is not applicable if the harm or damages were caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm. Harm or damages resulting from a resource or staffing shortage are not included within this exception and are still covered by the umbrella of immunity.
The immunity outlined above extends until the State of Emergency in New York has been declared lifted by Governor Cuomo. It is likely a much welcome relief for facilities who were not included under Executive Order 202.10.
Admission of COVID-19 Positive Residents
The New York State Health Department issued “Advisory: Hospital Discharges and Admissions to Nursing Homes” on March 25, 2020, to nursing home administrators, directors of nursing, directors of social work, and hospital discharge planners regarding nursing homes, and is related to the receipt of residents entering or returning to nursing homes from hospitals following a positive test for COVID-19.
The Advisory states: “No resident shall be denied re-admission or admission to the nursing home solely based on a confirmed or suspected diagnosis of COVID-19. Nursing homes are prohibited from requiring a hospitalized resident who is determined medically stable to be tested for COVID-19 prior to admission or readmission.”
Though controversial, it is important to note this provision applies only to those residents who are determined to be medically stable, i.e. those who have mild and manageable symptoms and those who are asymptomatic. There are a number of reasons to this:
- At a time of high demand, hospital beds will be utilized only by those most in need of them;
- It reduces the risk of viral overload in residents who may be increasingly exposed to the virus in hospital settings, which some studies have shown increases the severity of symptoms; and
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It allows elderly residents to recover in an environment that they are most comfortable.
Nevertheless, the Advisory is especially concerning to those facilities facing mounting scrutiny following reports that deaths in nursing homes and adult care facilities comprise almost one-quarter of the state’s death toll from COVID-19. There has been criticism from facilities and residents who are concerned about the prospect of transmission to healthy residents and staff members.
Addressing such concerns in his daily briefing, Governor Cuomo stated on April 22, 2020 that if a facility finds that they are unable to care for residents due to COVID-19 – for example, if there is insufficient space at the facility to adequately separate positive and negative residents, or there is insufficient staff to care for all residents due to staff shortages – the facility may reach out to the State and the State will make arrangements for those individuals. In New York City, this will be supported by an imminent Executive Order, which will allow individuals who have been displaced due to COVID-19 to stay in a hotel for more than 28 days without becoming a tenant.
Family Notification Requirement
Amid numerous reports that nursing homes and assisted living facilities were not forthcoming about residents testing positive for or passing away from COVID-19, Governor Cuomo issued Executive Order 202.18 on April 16, 2020, requiring that “any skilled nursing facility, nursing home, or adult care facility licensed and regulated by the Commissioner of Health shall notify family members or next of kin if any resident tests positive for COVID-19, or if any resident suffers a COVID-19 related death, within 24 hours of such positive test result or death.”
This was supplemented by Executive Order 202.19 to provide a penalty for non-compliance of $2,000 per violation per day, as if it were a violation of Section 12 of the Public Health Law, and further, that any subsequent violation shall be punishable as if it is a violation of Section 12-b of the Public Health Law, which allows for imprisonment of up to one year, or a fine not exceeding $10,000, or both.
This follows guidance from the New York State Health Department recommending that nursing homes take such measures, now the Executive Order makes it mandatory with strict penalties for failure to comply. The Order is in place through May 16, 2020.
New York State Investigation of Nursing Homes
At his daily briefing held on April 23, 2020, Governor Cuomo announced that the New York State Health Department and Attorney General’s Office will partner to inspect facilities and look for possible violations of the various Executive Orders enacted to date.
Under State and Federal laws and regulations, nursing homes are required to:
- Have their staffs undergo regular temperature checks and wear personal protective equipment;
- Quarantine residents who have tested positive for COVID-19;
- Have separate staff for those residents who have tested positive for COVID-19;
- Notify residents and family members within 24 hours if any resident tests positive for or dies from COVID-19;
- Transfer residents to another facility, or otherwise notify the State if they cannot provide adequate care for residents; and
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Readmit those infected only if the facilities can provide adequate care as dictated by the CDC and New York State Department of Health.
The Governor has directed all nursing homes to immediately report to the New York State Department of Health the actions that they have taken to comply with those directives. Facilities that have not complied with the directives will be required to immediately submit an action plan stating how they intend to address these. Facilities that fail to comply with the directives above could be fined $10,000 per violation, or potentially lose their license.
This information is expected to be consolidated in an imminent Executive Order and comes hot on the heels of remarks made by the Governor the day prior in which he stressed the point that nursing homes are private corporate entities as opposed to state sponsored facilities. Thus, the onus of keeping residents safe, providing staff with proper PPE, and implementing measures to reduce the risk of transmission falls to the facilities themselves, not the State. This is in fact what they are paid to do.
He continued, stating that the public needs to be aware that nursing homes are the target breeding grounds for this virus. They are environments in which groups of vulnerable people are gathered together under one roof. It is virtually impossible to keep the virus out of nursing homes, even with proper measures in place, and anyone who has a family member in this environment needs to be aware of this risk, and weigh whether they accept this risk. The Governor has been keen to stress that it is not the fault of these facilities that they have been infiltrated by the virus, expressing that they are experiencing “a very intense crisis situation” and are under a lot of pressure to protect their residents and staff. Nevertheless, he ended the briefing stating “Now is not the best time to put your mother in a nursing home. That is a fact.”
Comments in Conclusion
Despite these immunity protections, litigation against our medical and nursing home communities should be anticipated. A facility should not be liable in a tort claim simply because a resident contracted the virus. The questions will be whether caregivers ignored a resident’s symptoms, failed to document and report symptoms, failed to move someone to a quarantine unit or hospital soon enough, or failed to notify the family. Would that constitute traditional negligence? When does it rise to the level of gross negligence? The focus of claims would likely be on institutional failures.
The role of the State Department of Health and the State Attorney General’s office should be respected by all constituencies. While nursing homes have always been scrutinized by government inspectors, the Governor assures the public that investigations are intensifying and violations will be prosecuted to the full extent of the law. If facilities withstand such strict scrutiny, how can they be found liable for gross negligence?
