Nursing Home Legal Alert - 7/31/2020

An important message from the Hurwitz & Fine COVID-19 Response Team

New York Legislature Approves Measure to Trim Liability Immunity for Nursing Homes and Hospitals
On July 23, 2020, New York lawmakers voted to roll back portions of the sweeping legal immunity law afforded to nursing homes and hospital facilities dealing with the COVID-19 pandemic. Despite significant opposition from the Greater New York Hospital Association and the New York State Nurses Association, the vote amends the bill to extend legal protections only to medical professionals who have diagnosed, assessed or treated COVID-19 patients. The legislation also removes “prevention” of the coronavirus from the definition of heath care services.
 
It is worth noting that the care of non-COVID-19 patients may have been impacted by the response to the pandemic in several ways. These include hospitals responding to State orders to discharge as many patients as possible to prepare for a surge; hospitals deploying volunteers, staff, and medical students from across the country to serve in emergency departments in relief of staffing shortages; the creation of hospital units in non-traditional spaces such as cafeterias and tents; the delay of non-urgent surgeries and medical procedures; and the expedited triage of emergency room patients to make room for a surge of COVID-19 patients, to name a few. Protections previously afforded to health care providers in these less than ideal circumstances may now be gone.
 
The immunity law, which we previously reported on here, did not provide immunity for actions that constituted willful negligence, criminal misconduct, or gross negligence, and instead focused on harm arising from staffing shortages and lack of personal protective equipment.
 
Industry leaders and representatives opposing the rollback have stated that the legislation would limit liability protections for health care providers who provide services related to the prevention of the virus, or who arrange services for COVID-19 patients but do not directly treat them. Additionally, without legal protection in place, some health care professionals may opt out of assisting should another outbreak occur in the future, leading to further staffing shortages at a time when providers are most needed.
 
Governor Andrew Cuomo must sign off on the legislation before it becomes law. He stated that he could “see the rationale” for the legislation but hedged the comments by further saying that he would have to look at the specifics of the bill.
 

Costs for COVID Tests – The Buck Stops Where?
Widespread testing for COVID-19 is recognized as an important tool in combating the spread of the virus, however the cumulative cost for such testing is significant – particularly in nursing homes where, in New York for example, staff are required to be tested twice per week and residents tested weekly. The key question is: who bears the burden for the costs of testing? The consumer? Private insurance? The government?
 
On March 18, 2020, Congress passed the Families First Coronavirus Response Act (FFCRA) requiring group health plans and health insurers offering group or individual coverage to provide benefits for certain services related to testing for the virus during the pandemic. The FFCRA went even further to state that plans and insurers must not impose any cost-sharing requirements, prior authorizations, or any other medical management requirements with respect to such services.
 
As testing expanded, the Trump Administration issued guidance on April 11, 2020 and June 23, 2020 providing that coverage for testing under the FFCRA was triggered “when medically appropriate for the individual, as determined by the individual’s attending health care provider in accordance with current accepted medical standards of medical practice.” The June guidance further stated that, “testing conducted to screen for general workplace health and safety (such as employee ‘return to work’ programs), for public health surveillance for SARS-Co-V-2, or for any other purpose not primarily intended for individualized diagnosis or treatment of COVID-19 or other health condition is beyond the scope of … the FFCRA.”
 
However, the Centers for Disease Control and Prevention (CDC) states that testing is appropriate in the following five scenarios:

1. Individuals with signs or symptoms consistent with COVID-19
2. Asymptomatic individuals with recent known or suspected exposure to SARS-CoV-2 to control transmission
3. Asymptomatic individuals without known or suspected exposure to SARS-CoV-2 for early identification in special settings
4. Individuals being tested to determine resolution of infection
5. Individuals being tested for purposes of public health surveillance for SARS-CoV-2

With federal guidance seeking to eliminate testing for certain purposes, the question remains – when is testing medically appropriate for the individual? Currently this is a matter for interpretation, and it has become a judgment call for the provider with potentially costly ramifications for patients, insurance organizations, and government.

 

A Note from Pat Curran

Immunity granted to healthcare facilities was supposed to be temporary, lasting only as long as the COVID-19 pandemic.  Who declared the pandemic has ended?  When will we be confident there will be no second wave?  Will Governor Andrew Cuomo sign the bill passed last week in the New York State Legislature?  If the litigation pandemic is about to begin, will new claims involve only acts of alleged negligence occurring after the effective date of the bill or will plaintiff attorneys attempt to relate back to events during the past four months?  News reports quote resident family members and plaintiff advocates saying we need to figure out what happened that led to hundreds of deaths of nursing home residents.  Meanwhile, the New York State Department of Health is overwhelmed with thousands of requests for investigations, as we reported in our last issue.  Eventually, lawsuits and inquests may only prove what is tragically obvious to frontline caregivers:   Frail elderly residents of long term care facilities are virtually defenseless against a ravaging, stealthy disease such as COVID-19.

As a public service, we are pleased to present this legal alert, which aims to provide our clients and subscribers with timely information on how the COVID-19 pandemic may impact medical and nursing home claims.  In some jurisdictions, newsletters such as this may be considered: Attorney Advertising.
 
If you know of others who may wish to subscribe to these legal alerts, please feel free to forward it. If you wish to subscribe or unsubscribe, please do so at the bottom of this newsletter.

Your COVID-19 Medical & Nursing Home Defense Team
is here to answer your questions:
V. Christopher Potenza, Esq. ([email protected])
Patrick B. Curran, Esq. ([email protected])
Stephanie L. McCance, Esq.

For more information on our COVID-19 Legal Response Team,
including Business Services, Coverage, and Labor & Employment, click here.

For more legal updates regarding the coronavirus, click here.