• Margaret E. Somerset

How Does the New Immunity Law in NY Apply to Health Care Providers During the COVID-19 Emergency?

Updated: Aug 17, 2020

The statute discussed in the post below post was amended on August 3, 2020. For information on the amendments to the statute, see our new post from August 7, 2020: What Does New York’s Amended COVID–19 Immunity Law Mean For Providers? This new post was written by Steven R Gersz. To be clear, you need to read both the post below and our post of August 7, 2020 in order to understand the current state of the law. While all health care providers in New York are struggling to meet the needs of their patients, Governor Cuomo signed a new law that grants them immunity from most civil and criminal liability so they can focus on the job at hand. This new statute is much broader than Governor Cuomo’s Executive Order on March 23, 2020 that extended qualified immunity only to providers treating COVID-19 patients. [1]

During the pandemic, resources within all health care facilities are really challenged. The Emergency or Disaster Treatment Protection Act [2] (“EDTPA”) recognizes that all patients must be treated as if they are COVID-19 positive until proven otherwise, putting an enormous strain on the whole system. There are not enough health care providers and they are all being asked to work long hours, under very difficult circumstances, reaching beyond their comfort levels with shortages of personal protective equipment (PPE), often. This law recognizes that medical professionals are doing their best under these difficult circumstances. It seeks to cut them some slack. It is designed to encourage health professionals to use their best judgement and to act in good faith and protects them from the missteps that inevitably flow from the lack of sleep, lack of resources and lack of good communications.

The EDTPA extends immunity to nearly all health care facilities and nearly all health care professionals regardless of whether they are engaged in treating COVID-19 patients so long as they are involved, in some manner, in the response to the COVID-19 outbreak, and they act in good faith. The new law is intended to promote the public health, safety, and welfare of all New York citizens by allowing the health care professionals to expand their reach as much as possible. The law applies from March 7, 2020 until the end of the state of emergency.[3]

What is the Scope of Immunity Under the EDTPA?

The new law grants qualified immunity for both civil and criminal claims of harm if:

  1. The health care facility or professional (see list below) was arranging for or providing health care services pursuant to a COVID-19 emergency rule or as required by law, and

  2. The alleged negligence or omission occurs

a. While arranging for health care services or treatments[4], or

b. While deciding the response to be taken to the COVID-19 outbreak (per the state’s directives), and

3. The facility or professional is acting in good faith, and

4. The health care professional or facility did not act willfully, intentionally or in a manner that constitutes criminal misconduct, gross negligence[5], reckless misconduct or intentional infliction of harm.

Who is Immune from Liability Under EDTPA?

Any of the following health care professionals working in New York State during the state of emergency (regardless of whether they are employees, independent contractors, volunteers or agents of other providers or facilities):

  • Physicians

  • Physician Assistants

  • Registered Special Assistants

  • Pharmacists

  • Nurses and Nurse Practitioners

  • Midwives

  • Psychologists

  • Social Workers

  • Mental Health Practitioners, including licensed mental health counselors, marriage and family counselors, creative arts therapists and psychoanalysts

  • Respiratory therapists and respiratory therapy technicians

  • Clinical Laboratory Technicians

  • Nurse attendants or certified nursing aides, including those in certified training programs

  • Certified Emergency Medical Technicians (EMT)

  • Home Care Services Workers

  • Health care workers providing services under the COVID-19 emergency rule (including providers who were brought out of retirement or who are licensed in other states and working in New York under the state of emergency), and

  • Health Care Facility Administrators, Executives, Supervisors, Board Members, Trustees, and others responsible for directing and supervising or managing a health care facility or serving in any of those roles.

What Facilities are Immune from Liability Under EDTPA?

  1. Any Article 28 facility including hospitals, nursing homes, public health centers, diagnostic centers, treatment centers, dental clinics, skilled nursing rehabilitation centers, residential health care facilities, maternity hospitals, midwifery birthing centers and residential psychiatric facilities, and

  2. Any Article 16 mental hygiene facilities including residential and outpatient facilities for the care of persons with developmental disabilities and family care homes, and

  3. Any Article 31 mental hygiene facilities including residential homes or institutions for the care, custody of treatment of the mentally disabled.

How Does this Law Apply to You?

If you are a health professional or you volunteer on the board of directors for a health care facility, you probably wonder if you could be liable for any of the adverse outcomes that many are experiencing.

If you are afraid that you or your facility has made a mistake that resulted in harm to someone, there are three basic questions to ask yourself to help determine if this law might offer you immunity from liability:

  1. Are you among the listed professionals or volunteers listed above?

  2. Were you involved in either arranging for health care services during the state of emergency or deciding the response to be taken to the COVID-19 outbreak when the mistake happened?

  3. Did you act in good faith?

If you can answer “yes” to each of these questions,