New York state budget provision bans some lawsuits targeting hospitals, nursing homes over coronavirus

Aides to New York Gov. Andrew Cuomo (D) added a provision to the state’s newly approved budget that prevents residents from suing facilities including nursing homes over some allegations of negligence related to the coronavirus outbreak.

The New York Times first reported Thursday that the provision, which some lawmakers contended they did not know was in the final bill until after it passed, prevents basic legal action against long-term care homes over issues such as staffing shortages or insufficient equipment. Greater crimes such as gross negligence or criminal misconduct can still be legally challenged.

Experts told the Times that the provision eliminates oversight over nursing homes at a time when regulators have already largely stopped inspecting state facilities.

“All of the systems there to protect people are gone,” Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy, told the Times. “To me, the combination — rules are waived, protections are waived, nobody is going in to check. And now immunity? That is a lethal combination.”

A spokewoman for the governor’s office, Dani Lever, pointed out that the provision was modeled after Good Samaritan laws, which shield bystanders and volunteers from lawsuits for their actions taken during a crisis.

Lever pointed out that the state recruited tens of thousands of volunteers for nursing homes and other facilities, and added that such a feat would not have been possible without legal protections for volunteers and state facilities.

“We had to realign New York’s entire health care system, using every type of facility to prepare for the surge, and recruiting more than 90,000 volunteers – 25,000 from out of state, to help fight this virus. These volunteers are Good Samaritans and what was passed by 111 members of the Legislature was an expansion of the existing Good Samaritan Law to apply to the emergency that coronavirus created,” Lever told The Hill in an email.

“If we had not done this, we never would have had enough front-line health care workers working and taking care of patients,” she added.

The chairman of the New York General Assembly’s health committee contended to the Times that he had been unaware of the “troubling” provision before it was passed.

“It’s very troubling,” said Assemblyman Richard Gottfried (D). “There’s a very long history of abuse and neglect of nursing home residents. And to add to that a reduction in the ability of patients and family members to seek relief in the courts is very scary.”

“For us to change the liability standard without any discussion is borderline criminal,” added Assemblyman Ron Kim (D), who voted against the budget. “It’s ridiculous. Why would anyone comply with rules if they felt like they couldn’t be touched?”

Cuomo’s office denied that lawmakers had been kept in the dark about the provision, and Lever contended that it was not specifically meant to shield nursing homes from claims of negligence. Language used in the provision, she added, was discussed with lawmakers weeks before it was added to the budget, which passed in April.

“This bill was not done in the dark, it was negotiated with and conferenced in both houses and the legislators had weeks to have input in the language and elected officials cannot be blindsided by language in a bill, unless they don’t read it,” Lever added to The Hill.

“This legislation is not intended to shield any bad-acting facilities during this tragic time, but rather to ensure facilities could continue to function in the face of potential shortages and other evolving challenges the pandemic presented,” Lever added.

Updated at 11:10 a.m. to reflect a statement from the governor’s office.