In our post of April 23, 2020, we summarized the New York Emergency Or Disaster Treatment Protection Act (“EDTPA“). When originally signed into law, the Act extended broad immunity to nearly all healthcare facilities and healthcare professionals in all aspects of the care and treatment of patients from March 7, 2020 during the pendency of the COVID-19 state of emergency.
On August 3, 2020, Governor Cuomo signed a new law amending the EDTPA which narrows the scope of the immunity provided by the original statute. The original EDTPA granted nearly all healthcare providers qualified immunity while providing healthcare services during the COVID-19 pandemic. Now, under the amended EDTPA, the immunity is limited to those healthcare facilities and providers who are assessing or caring for individuals with suspected or confirmed cases of COVID-19.
Legislative sponsors of the amendments acknowledge that in the early days of the crisis, all healthcare facilities and healthcare providers needed broad immunity to deal with the unprecedented challenges they faced. Now, that the immediate crisis seems to have passed, the balance tips back in favor of patients and the grieving family members of patients who succumbed to medical conditions other than COVID-19 during the pandemic.
In addition to narrowing the scope of providers who retain immunity, the new law also eliminates immunity for those involved in “prevention” services, clarifying that the scope relates only to “assessment or care of an individual as it relates to COVID-19” and eliminates the prior broad inclusion of “any other individual who presents for health care services” during the pendency of the pandemic. In addition, the new law removes any statutory immunity for “arranging for healthcare services” and clarifies that immunity is only available when care is rendered “in accordance with applicable law or pursuant to a COVID-19 emergency rule”.
As amended, the EDTPA only provides immunity to healthcare facilities and healthcare providers that provide assessment or care for an individual with a suspected or actual case of COVID-19, when that care is delivered in a manner consistent with applicable law or with an applicable COVID-19 emergency rule. As such we suggest you look back at our original post to understand more about the EDTPA immunity, but, as you review the prior post, be mindful of the limitations to the scope of immunity described above.
What does this mean for providers? First, the new law is not retroactive, so all those who were immune from liability between March 7, 2020 and August 3, 2020 remain immune. Going forward, however, only those who are actually caring for confirmed or suspected COVID-19 patients continue to have qualified immunity from liability. Administrators, and board members and other staff members are no longer immune under the amended law. From and after August 3, 2020, no provider is immune from liability for treatment of other diseases, such as the failed treatment of a cancer patient if that cancer patient did not have a confirmed case of COVID-19 or was not being assessed for COVID-19 when the patient died.
Healthcare facilities and providers will recognize that the immunity for suspected and actual cases of COVID -19 is warranted because the standards of care on diagnosis and treatment of COVID-19 is continuing to evolve, and no “gold standard” of testing or treatment plan has yet emerged. As such, it would be unfair for current providers to be liable for delays or false negatives in lab tests or for the selection of treatment protocols. For patients in an institutional setting, best practice involves isolating those patients with confirmed cases of COVID-19, which can create delays in responding to emergent situations, such as breathing difficulties or cardiac issues, while the responding providers don appropriate protective equipment. It appears these circumstances are the legislative justifications for the continued immunity.
In addition to Steven R. Gersz, this post was authored with input by David M. Tang and Margaret E. Somerset.
If you have any questions, please contact David M. Tang here or at 585-258-2845.
You can view more COVID-19-related posts in our COVID-19 Resource Area here.