April 10, 2020

New York Public Health Law Provides Immunity for Facilities and Professionals Responding to COVID-19

immunity from civil or criminal liability

New York has enacted the Emergency Disaster Treatment Protection Act, a new statute in the Public Health Law that provides healthcare facilities and professionals immunity from civil or criminal liability when delivering care related to COVID-19. This means that those protected by the new statute are not liable 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 COVID-19 healthcare services.

Below, you’ll find a detailed summary of Article 30-D of New York Public Health Law. If you have any questions regarding the Act or its applications, please contact Mia D. VanAuken, Esq., at (518) 786-2880 or mvanauken@fakslaw.com.

Updated 4/20/20: NEW YORK’S EMERGENCY DISASTER TREATMENT PROTECTION ACT

ARTICLE 30-D OF PUBLIC HEALTH LAW

SUMMARY

On April 2, 2020, New York passed legislation, entitled “Emergency Disaster Treatment Protection Act,” (the “Act”) that provides comprehensive immunity from liability to healthcare professionals and healthcare facilities. Previously, New York’s Governor issued Executive Orders that provided for limited liability for thirty-day periods. The Act is retroactive to cover acts or omissions that occurred on or after March 7, 2020, the date of the COVID-19 emergency declaration in New York State, through the expiration date of that declaration. The stated purpose of the Act, which took effect immediately, is to promote the public health, safety, and welfare of all citizens by broadly protecting the healthcare facilities and healthcare professionals in New York State from liability that may result during the public health emergency.

The most significant difference in the Act from the Executive Orders is that the healthcare facilities, along with volunteer organizations and an expanded class of individuals, are protected from liability. The Act also provides immunity protection from criminal liability in addition to civil liability. Finally, the Act clarifies that the exemption for willful or intentional misconduct does not include acts, omissions, or decisions that result from a resource or staffing shortage. This language will protect professionals and facilities against actions and decisions in rationing medical devices and services, among others.

WHO IS PROTECTED WITH IMMUNITY?

Healthcare facilities and healthcare professionals (volunteers, agents, contractors, employees, or others), as defined, are protected.

1. The following list of individuals, who are licensed or otherwise authorized under Title 8 of Education Law:

Physicians
Physician Assistants
Specialist Assistants
Nurse Practitioners
Registered Professional Nurses
Licensed Practical Nurses
Pharmacists
Licensed Midwives
Psychologists
Mental Health Practitioners
Respiratory Therapists
Respiratory Technicians
Clinical Laboratory Technologists
Cytotechnologists
Clinical Laboratory Technicians
Histological Technicians

2. In addition to those licensed in New York, immunity is also provided to any individual who provides healthcare services within the scope of authority permitted by a COVID-19 emergence rule. This class of individuals includes:

Physicians – Licensed to practice outside of New York or Physicians without current registration (such as retired) (Executive Order No. 202.5¹)
Physician Assistants– Licensed to practice outside of New York or without current registration or without physician supervision (EO Nos. 202.5; 202.10²)
Nurse Practitioners – Licensed outside of New York or without current registration or without collaboration agreements/ relationships (EO Nos. 202.5; 202.10)
Registered Professional Nurses– Licensed to practice outside of New York; or without current registration (EO Nos. 202.5;202.10)
Licensed Practical Nurses – Licensed to practice outside of New York or without current registration (EO Nos. 202.5; 202.10)
Radiologic Technologists – Licensed to practice outside of New York or without current registration (EO No. 202.10)
Respiratory Therapists – Licensed to practice outside of New York (EO No. 202.10)
Nursing graduates of RN and LPN programs employed for 180 days with supervision of RN (EO No. 202.11)
Midwives – Licensed to practice outside of New York (EO No. 202.11)
Students of any licensed healthcare profession that volunteer without an affiliation agreement (EO No. 202.10)
Advanced Practice Registered Nurse (e.g. CRNA) – without physician supervision (EO No. 202.10)
Specialist Assistant – without physician supervision (EO No. 202.10)
Unlicensed Physicians – Graduates of foreign medical schools with completion of one year of graduate medical education (EO No. 202.10)
Medical School Graduates of 2020 – Medical students who have been accepted into a residency program and are under a licensed physician’s supervision (EO No. 202.14³)

3. Other immune healthcare workers, covered by the Act, include the following:

Nursing Attendants or Certified Nurse Aides (or trainee in those programs)
Licensed or certified Emergency Medical Service First Responders
Emergency Medical Technicians
Advanced Emergency Medical Technicians
Home Care Services Workers – any person engaged in or applying to become engaged in providing home health aide services
Healthcare Facilities: Administrator; Executive; Supervisor; Board Member; Trustee; or Any other person responsible for directing, supervising, or managing a healthcare facility

4. Healthcare Facilities:

Hospitals
Nursing Homes
Facilities Under Article 28 of the Public Health Law
Facilities Under Article 16 of the Mental Hygiene Law
Facilities Under Article 31 of the Mental Hygiene Law
Facilities created under a COVID-19 Emergency Rule

5. Volunteer Organizations, which includes any organization, company, or institution that has made its facility or facilities available to support the state’s response and activities under the COVID-19 emergency declaration and in accordance with any applicable COVID-19 emergency rule.

WHAT DOES THE IMMUNITY COVER?

Healthcare facilities and healthcare professionals are immune from any civil or criminal liability, meaning that they are not liable 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 services,” if:

the healthcare services being arranged or provided are pursuant to a COVID-19 emergency rule or otherwise in accordance with the law;
the act or omission occurs while arranging or providing healthcare services, and the treatment of the patient is impacted by the healthcare facility’s (or professional’s) decisions and activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives; and
the healthcare facility (or professional) acted in good faith

“Health care services” means services provided by a healthcare facility (or professional) provided at any location that relate to:

The diagnosis, prevention, or treatment of COVID-19; or
The assessment or care of an individual with a confirmed or suspected case of COVID-19; or
The care of any other individual who presents at a healthcare facility or to a healthcare professional during the period of the COVID-19 emergency declaration.

“Volunteer Organizations” are immune from civil or criminal liability for any harm or damages (irrespective of the cause) occurring at its facility arising from the state’s response under the COVID-19 emergency declaration and in accordance with COVID-19 emergency rules.

WHAT IS EXEMPTED FROM THESE IMMUNITIES?

Immunity for healthcare facilities and healthcare professionals does not apply if the harm or damages were caused by an act or omission constituting (1) willful or intentional criminal misconduct, (2) gross negligence, (3) reckless misconduct, or (4) intentional infliction of harm, by the healthcare facility or professional.

Acts, omissions, or decisions that result from a shortage of resources or staffing shall not be considered willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.

Immunity for Volunteer Organizations does not apply if it is established that such harm or damages were caused by the (1) willful or intentional criminal misconduct, (2) gross negligence, (3) reckless misconduct, or (4) intentional infliction of harm, by the volunteer organization.

WHEN IS THIS ACT IN EFFECT?

The Act became effective immediately, and it applies to acts and omissions that occurred on or after March 7, 2020, the date of the New York State Emergency Disaster Declaration for COVID-19, through the expiration date of that declaration.

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¹ Executive Order 202.05 was issued on March 18, 2020. The suspension and modification of the statues and regulations therein are effective March 18, 2020, through May 7, 2020. See New York State, Executive Orders from the Office of the Governor, https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202_5.pdf.

² Executive Order 202.10 was issued on March 23, 2020. The suspension and modification of the statutes and regulations therein are effective from March 23, 2020, through May 7, 2020. See New York State, Executive Orders from the Office of the Governor, https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.10.pdf.

³ Executive Order 202.14 was issued on April 7, 2020. The suspension and modification of the statues and regulations therein are effective April 7, 2020 through May 7, 2020. See New York State, Executive Orders from the Office of the Governor, https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/EO_202.14_final.pdf.