The COVID-19 pandemic placed a dramatic strain on New York’s, and the Nation’s, health care infrastructure and its many providers. Recognizing the importance of health care providers to the safety, health, and welfare of its citizens during the pandemic, New York enacted the Emergency Disaster Treatment Protection Act (the “EDTPA”) in early April 2020 to provide those treating individuals with COVID-19 with broad immunity to civil and criminal liability arising from that treatment. The purpose of this statute was to offer reassurance to providers (and their employers), who were stretched to the breaking point during New York’s darkest days, that civil or criminal liability for their medical decision making would not attach to their treatment and care decisions.
However, on August 3, 2020, Gov. Cuomo signed into law an amendment to the EDTPA, effectively walking back several of the broad immunities provided to health care providers, including hospitals and nursing homes, for claims for injuries or deaths related to COVID-19 accruing after the August 3, 2020 effective date of the amendment. Qualifying health care providers and their counsel must be aware of these changes to ensure they are taking all appropriate steps to avail themselves of these statutory protections.
Claims Accruing Prior to August 3, 2020 Remain Subject to the Original Immunities of the EDTPA
The recent amendment to the EDTPA was not retroactive, meaning that health care providers continue to be entitled to the immunities of the originally enacted legislation for claims arising from acts or omissions prior to August 3, 2020. As originally enacted, the EDTPA provided civil and criminal immunity for any “health care services” performed during the pandemic. As defined in the statute, “health care services” mean: (a) the diagnosis, prevention, or treatment of COVID-19; (b) the assessment or care of an individual with a confirmed or suspected case of COVID-19; or (c) the care of any other individual who presents at a health care facility or to a health care professional during the period of the COVID-19 emergency declaration.
For a qualifying “health care service” to be shielded by EDTPA immunity, the provider of that health care service must meet three statutory conditions:
- the provider is arranging for or providing health care services at a health care facility, or arranging for or providing health care services pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law;
- the alleged act or omission occurred in the course of arranging for or providing treatment, and was impacted by the health care facility’s or health care professional’s decisions or activities in response to or as a result of the COVID-19 outbreak; and
- the provider arranged or provided health care services in good faith.
If these criteria all are met, the provider will be entitled to civil and criminal immunity unless a claimant establishes that the actions taken by the provider were grossly negligent, a very high standard that far exceeds mere carelessness, or a failure to perform as a reasonably competent professional.
The broad impact of the EDTPA immunity is perhaps best exemplified by the fact that it includes provisions allowing for immunity even when the patient care episode is not directly related to COVID-19—i.e., where the care decision may have been impacted by the provider’s or the facility’s treatment of other patients with COVID-19, resulting in staffing shortage, the unavailability or inadequacy of personal protective equipment, or the need to prioritize the treatment of COVID-19 patients.
The Amendment to the EDTPA Limits the Claims Subject to Immunity for Claims Accruing on or after August 3, 2020
Efforts to repeal or limit the EDTPA immunities arose quickly after its passage, and culminated in an August 3, 2020 limiting amendment. This amendment, however, only applies to claims accruing on or after August 3, 2020, reflecting a legislative compromise. The recently enacted amendment was intended to “narrow the scope of [the EDTPA’s] liability protections to apply only when a health care facility or medical professional is providing direct care related to the diagnosis or treatment of COVID-19 and the care is impacted by COVID-19.”
To achieve this result, the Legislature amended the EDTPA in three critical ways.
- First, it limited the “health care services” eligible for immunity to only the diagnosis or treatment of COVID-19;
- Next, it clarified that qualifying “health care services” must be related to the assessment or care of the COVID-19 condition of the patient or resident; and
- Last, it eliminated from the defined “health care services” care provided to other individuals presenting for treatment during the period of the COVID-19 emergency declaration.
The collective effect of these changes eliminated several of the broadest areas of immunity, such as actions related to the prevention of COVID-19 that did not relate to COVID-infected patients, the treatment of conditions unrelated to COVID-19 (such as cardiac events or broken bones), and the care provided to patient without COVID-19 infection.
Key Takeaways from Changes to the EDTPA
There are now two different standards for assessing COVID-19 immunity available to health care providers: broader immunities for claims accruing prior to August 3, 2020, and far more limited immunities for claims accruing on or after that date. While New York has seen a dramatic decline in COVID-19 cases in recent months, this limitation in the available immunity under the EDTPA could have significant impact if, for instance, a “second wave” of the pandemic washes over New York.
Health care providers, including in particular nursing homes, must be aware of these significant liability considerations so they can take appropriate actions which will permit them, to the maximum extent possible, to successfully assert the potential immunities still available in the post-August 3 period. The challenges and experiences of the past several months of the pandemic should provide a useful guide for providers to consider necessary operational changes in a deliberate manner that is mindful of the limited continuing immunities provided by the EDTPA.
Ward Greenberg’s Healthcare Team offers assistance to providers in this area, and in all related areas of risk mitigation.