ALBANY — The state Legislature is expected to give final approval to a bill later this week that would repeal a controversial law shielding nursing homes and hospitals from medical malpractice lawsuits tied to the coronavirus pandemic.
The measure would roll back the ‘Emergency or Disaster Treatment Protection Act’ — passed within last year’s omnibus $177 billion state budget — that granted health care facilities and medical professionals liability immunity from negligence suits, specifically related to treating or arranging the treatment of COVID-19 patients.
The legislation — sponsored by state Sen. Alessandra Biaggi (D-The Bronx) and Assemblyman Ron Kim (D-Queens) — cleared the Assembly earlier this month and is expected to pass the Senate later this week.
The move comes amid an FBI probe into Gov. Andrew Cuomo’s handling of the deadly virus in nursing homes and has become a focus of federal investigators in recent weeks.
“The corporate immunity provision was a license to kill,” Biaggi, who has sponsored a similar repeal measure in the past, told The Post.
“We know that at least 15,000 people have died in nursing homes [and adult care facilities], because of COVID-19 in New York and at least 4,000 people passed away in the early months of the pandemic.”
The current protections prohibit family members that lost loved ones from suing facilities unless they can prove a high standard of gross negligence.
To date, 13,514 nursing home residents have died of confirmed or presumed COVID-19 cases either in facilities or after being transferred to hospitals, according to the latest state data released March 21.
The provision’s initial inclusion was backed by the state’s powerful hospital lobby group — the Greater New York Hospital Association — which cheered its passing within a day of the budget’s approval in a press release and took some credit for the final language.
An association spokesman told The Post the group opposes Biaggi’s bill.
“We continue to believe, given the extraordinarily challenging circumstances facing hospitals and other providers during this pandemic, that it is right to protect health care facilities and their staff from liability except in cases of gross negligence and intentional wrongdoing,” spokesman Brian Conway said, adding that it’s “common practice” for organizations to submit draft language to the state and advocate on its behalf.
“Our communications with the state on this issue included submitting immunity language for consideration by the governor’s office and the state Legislature … Our primary advocacy focus was on protecting hospitals and their staff. The final version that passed in April differed in certain significant respects from our proposed language.”
State Health Commissioner Howard Zucker defended the measure during a recent budget hearing, admitted some changes could be made — but has insisted he doesn’t regret backing the provision at the start of the pandemic.
Biaggi said lawmakers need to “put the pressure” on the governor again.
“Now we know better and he knows better and he’s still saying that he would have done it again,” Biaggi said.
“There’s multiple investigations into the handling of nursing homes which have pointed to corporate immunity, the Attorney General’s report also touched on it … Federal prosecutors are looking into how the protections were formed. They knew what they were doing.”
Meanwhile, the state Senate is also expected to pass additional nursing home reform legislation including:
· A bill sponsored by Sen. Gustavo Rivera (D-The Bronx) would change the state Health Department’s review process for approving when nursing homes seek an ownership or operator change
· A measure sponsored by Sen. Rachel May (D-Syracuse) mandating that facilities display information about the long-term care ombudsman in addition to resident rights translated into multiple languages
“The tragic situation in nursing homes during the COVID-19 pandemic has exposed a dire need to guarantee greater transparency and accountability,” Senate Majority Leader Andrea Stewart-Cousins (D-Westchester) said in a statement.
“This legislation, in addition to the nursing home-related reforms recently advanced by the Senate Democratic Majority, continues our strong commitment to prioritizing the wellbeing, rights, and needs of residents and their families.”
Cuomo has also proposed his own group of nursing home legislation, which he has said he wants included in the state budget, but both legislative chambers beat him to it, passing their own packages of long term care reform legislation several weeks ago.
Once passed the state Senate, the corporate immunity repeal bill must be signed or vetoed by Cuomo. A representative for his office was not available for immediate comment.