Controversial Legal Protections for Nursing Homes, Hospitals Now in Cuomo's Hands

A controversial state law in New York that granted special legal protections to nursing homes, hospitals, and other health care providers could be repealed under a bill approved Wednesday by the state Legislature.

The State Assembly had already approved the bill, but the Senate gave final passage to the measure Wednesday afternoon with unanimous support.

It will now head to Gov. Andrew Cuomo for approval, but it’s unclear where he stands on the measure. Representatives for Cuomo did not respond to requests for comment on the legislation.

The bill would repeal a section of state law that insulated certain healthcare facilities, including nursing homes and hospitals, from legal vulnerability during the COVID-19 pandemic. The law, approved nearly a year ago, essentially made it harder to sue those providers.

The reasoning for the legislation, at the time, was to protect health care providers from legal trouble while they were caring for individuals with a disease that wasn’t yet fully understood, and during a pandemic that few had anticipated.

But critics of the measure have argued that it allowed providers, and nursing homes in particular, to cut corners when it came to care for individuals.

State Sen. Alessandra Biaggi, D-Westchester/Bronx, said Wednesday that allowing a full repeal of the law will hand the power of the state’s legal system back to those who receive care from health care providers and nursing homes.

“The duty of government, especially in a crisis as unprecedented as COVID-19 and this pandemic, is to protect our most vulnerable, not corporate shareholders or special interests,” Biaggi said. 

The state Legislature had already repealed a large chunk of the liability protections last July, when lawmakers started to question whether the measure had done more harm than good at the height of the pandemic.

The legislation approved Wednesday would repeal the provision altogether, lowering the standard for litigation against health care facilities to where it was before COVID-19.

The bill was the result of hours of testimony at a pair of hearings held last year on the state’s handling of nursing homes during COVID-19, coupled with the findings from a special report released in January by the New York Attorney General’s Office.

In that report, the Attorney General’s Office claimed that the liability protections may have allowed nursing homes to make financially motivated decisions that could have put the residents of those facilities at risk.

“The preliminary investigations illustrate instances of facility decisions that relate to or affect resident care that are financially motivated, rather than clinically motivated,” the report said.

Some nursing homes, for example, continued to admit new residents to their facilities during the pandemic, according to the report, despite staffing shortages brought on by workers who contracted the virus or were otherwise unable to work.

There have also been questions about how involved leaders from the health care industry were in crafting the statute for legislative approval.

The Greater New York Hospital Association was involved in conversations on the bill, and had suggested drafted language to Cuomo’s office on the provision. The final version largely reflected the interests of the group, which represents the state’s hospitals.

It’s not unusual for stakeholders to suggest language for lawmakers to use when writing new legislation, but critics of the measure have suggested that Cuomo pushed for its inclusion because the GNYHA has donated, generously, to him over the years.

Democrats agreed to approve the measure when it was included last year in the state budget, which is composed of several omnibus bills packed with policy and spending.

The fate of the bill will now be up to Cuomo, who hasn’t publicly expressed an opinion on the measure. But if he moves to veto it, Democrats have the votes to override that decision.