NYS legislature Passes ‘Legal Shield & Covid-19’ bill

July 24, 2020

Yesterday both houses of the NYS Legislature passed the bill we are calling the ‘Legal Shield and COVID-19″ bill.  The bill now goes to the Governor for final action.  

The final state budget included immunity for health professionals related to diagnosis or treatment of COVID-19 and for the assessment or care of an individual as it relates to COVID-19 when an individual has a confirmed or suspected case.  Below is our summary of the enacted budget language which includes professionals in the BH sector.

Tthe bill (text below our budget summary) removes liability protection related to the prevention of COVID-19, general liability protection for anyone else presenting for care during this period and for arranging for care for those with COVID-19, on a prospective basis.  See highlighted additions/text removals.

Healthcare and Professional Liability Protections for COVID-19 in Final State Budget SFY 2020-21

PART GGG of the final budget limits the liability for healthcare professionals, health care facilities and organizations that provide treatment and services related to the COVID-19 state of emergency. This includes immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care service. The provision retains provisions regarding liability for harm caused by willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.  

“Health Care Facility “means a hospital, nursing home or other facility licensed or authorized to provide health care services for any individual under article 28, article sixteen, article thirty-on of the mental hygiene law or under a COVID-19 emergency rule. “Health care professionals” mean agents, volunteers, contractors, employees or otherwise that is a licensed or certified physician, physician assistant, specialist assistant, chiropractor, pharmacist, pharmacy technician, nurse, midwife, psychologist, social worker, mental health practitioner, respiratory therapist, clinical lab technician, nursing attendant, certified nurse aide, nursing student, EMT, home care worker, health care facility administrator, supervisor, executive, board member, trustee or other person responsible for directing or managing a facility, or anyone else providing health care within scope of authority permitted by a COVID-19 emergency rule.

We have embedded the bill that passed both houses yesterday (below).  It has not changed since the email update we sent earlier this week. ‘Health care professionals’ which this bill references was defined in the enacting statute in the final budget year this. Immediately below is the definition of health care professional which DOES include a number of professionals in the behavioral health sector:

“Health care professionals” means agents, volunteers, contractors, employees or otherwise that is a licensed or certified physician, physician assistant, specialist assistant, chiropractor, pharmacist, pharmacy technician, nurse, midwife, psychologist, social worker, mental health practitioner, respiratory therapist, clinical lab technician, nursing attendant, certified nurse aide, nursing student, EMT, home care worker, health care facility administrator, supervisor, executive, board member, trustee or other person responsible for directing or managing a facility, or anyone else providing health care within scope of authority permitted by a COVID-19 emergency rule.

Here’s more about the bill: 

https://poststar.com/news/ny-lawmakers-ok-cutting-back-nursing-homes-legal-shield/article_ba5174f0-878d-59f0-97d5-2772d0cf373d.html#utm_source=poststar.com&utm_campaign=%2Fnewsletter-templates%2Fdaily-headlines&utm_medium=PostUp&utm_content=b90170eed3ca675c8299c58ce999496ab2e89490

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A 10840  Rules (Kim)   Same as S 8835  SEPULVEDA 
Public Health Law
TITLE….Relates to amending provisions regarding health care facilities and professionals during the COVID-19 emergency
07/20/20 referred to codes
07/22/20 reported referred to rules
07/22/20 reported
07/22/20 rules report cal.352
07/22/20 ordered to third reading rules cal.352
07/23/20 substituted by s8835
    S08835   SEPULVEDA   
07/20/20 REFERRED TO RULES
07/23/20 ORDERED TO THIRD READING CAL.1033
07/23/20 PASSED SENATE
07/23/20 DELIVERED TO ASSEMBLY
07/23/20 referred to codes
07/23/20 substituted for a10840
07/23/20 ordered to third reading rules cal.352
07/23/20 passed assembly
07/23/20 returned to senate

            STATE OF NEW YORK

     ________________________________________________________________________

                                          10840

                   IN ASSEMBLY

                                      July 20, 2020

                                    ___________

        Introduced  by  COMMITTEE ON RULES — (at request of M. of A. Kim, Gott-

       fried) — read once and referred to the Committee on Codes

        AN ACT  to  amend  the  public  health  law,  in  relation  to  amending

       provisions  regarding  health care facilities and professionals during

       the COVID-19 emergency

          The People of the State of New York, represented in Senate and  Assem-

     bly, do enact as follows:

     1 Section  1. Subdivision 5 of section 3081 of the public health law, as

  2  added by section 1 of part GGG of chapter 56 of the  laws  of  2020,  is

  3  amended to read as follows:

  4 5. The term “health care services” means services provided by a health

  5  care  facility or a health care professional, regardless of the location

  6  where those services are provided, that relate to:

  7 (a) the diagnosis[, prevention,] or treatment of COVID-19; or

  8 (b) the assessment or care of an individual [with] as  it  relates  to

  COVID-19,  when  such  individual  has  a confirmed or suspected case of

10  COVID-19[; or

11 (c) the care of any other individual who presents  at  a  health  care

12  facility  or  to  a  health  care  professional during the period of the

13  COVID-19 emergency declaration].

14 § 2. Subdivision 1 of section 3082 of the public health law, as  added

15  by  section  1 of part GGG of chapter 56 of the laws of 2020, is amended

16  to read as follows:

17 1. Notwithstanding any law to the  contrary,  except  as  provided  in

18  subdivision two of this section, any health care facility or health care

19  professional  shall have immunity from any liability, civil or criminal,

20  for any harm or damages alleged to have been sustained as a result of an

21  act or omission in the course of [arranging  for  or]  providing  health

22  care services, if:

23 (a) the health care facility or health care professional is [arranging

24  for  or]  providing  health  care services in accordance with applicable

25  law, or where appropriate pursuant to  a  COVID-19  emergency  rule  [or

26  otherwise in accordance with applicable law];

         EXPLANATION–Matter in italics (underscored) is new; matter in brackets

                           [ ] is old law to be omitted.

                                                                LBD16950-06-0

  1. 10840                        2

     1 (b)  the  act  or  omission occurs in the course of [arranging for or]

  2  providing health care services and the treatment of  the  individual  is

  3  impacted  by  the  health  care facility’s or health care professional’s

  4  decisions or activities in response to or as a result  of  the  COVID-19

  5  outbreak and in support of the state’s directives; and

  6 (c) the health care facility or health care professional is [arranging

  for or] providing health care services in good faith.

  8 §  3. This act shall take effect immediately and shall apply to claims

  9  for harm or damages if the act or omission  that  causes  such  harm  or

10  damage  occurred  on or after such effective date; provided however this

11  act shall not apply to any act or omission occurring after  the  expira-

12  tion of the COVID-19 emergency declaration.