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Healthcare Lobby Holds Sway In Shielding NY's Nursing Homes And Hospitals From COVID-19 Liability
By
Ross Barkan
Published Jul 29, 2020
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Mike Groll/Office of Governor Andrew M. Cuomo
By
Ross Barkan
Published Jul 29, 2020
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Last week, Democrats in the State Legislature moved to weaken a controversial immunity provision granted to nursing homes, hospitals, and other healthcare facilities during the coronavirus pandemic, though they stopped short of the full repeal many advocates and progressive lawmakers demanded for months.
In a special session, the Democratic-controlled Assembly and State Senate voted to stop shielding healthcare facilities from lawsuits going forward, whenever Governor Andrew Cuomo signs the bill into law. The bill would also take away the blanket immunity healthcare facilities now enjoy from non-coronavirus-related lawsuits.
But relatives of those who already got sick from COVID-19 in nursing homes and eventually died will have a very difficult time bringing successful lawsuits.
“We couldn’t come to an agreement on anything that was retroactive,” said Assemblyman Ron Kim, the Queens Democrat who was the lead sponsor of the bill in his chamber.
Kim, an aggressive Cuomo critic, had long been fighting for a full repeal of the immunity provision, which was inserted into the state budget just before it was passed at the beginning of April. That immunity was retroactive: with language that was shaped, in part, by the nursing home and hospital lobbies, healthcare facilities in New York State were effectively shielded from almost every kind of lawsuit dating back to March 7th.
Since the coronavirus outbreak began around the same time, the immunity covered virtually all COVID-19 deaths. More than 6,000 New Yorkers died in nursing homes alone, though the true number may never be known since the state does not count those who were infected in nursing homes but were transported to hospitals to die. Some nursing homes begged the state, to no avail, for more personal protective equipment as the virus tore through their facilities. More than 32,000 New Yorkers have died of complications related to COVID-19, the most of any state in the country.
“I was a big Cuomo fan prior to all of this,” said Alexa Rivera, a Brooklyn resident whose 78-year-old mother was infected in a Long Island nursing home and died in an nearby hospital. “I thought he was bold in his statements and how he expressed himself. But when you give someone a get-out-of-jail-free card, it makes it easier for them to do the bare minimum.”
Critics blame a March directive from Cuomo’s Department of Health, later reversed in May, for worsening the outbreak by forcing nursing homes to readmit residents from hospitals who had tested positive for COVID-19. Though New York ended up having large temporary facilities to handle a surge in patients, Cuomo argued the directive was necessary to maintain hospital capacity.
A July, a State Department of Health study authorized by Cuomo largely absolved the state’s decision-making, laying the blame on infected staff. But outside experts assailed the report’s methodology, in part because the state did not count nursing home residents who died in hospitals.
In Albany, full repeal of the immunity provision was unlikely because the nursing home and hospital lobbies, particularly the Greater New York Hospital Association, hold great sway, according to lawmakers. Those close to the bill-drafting process say GNYHA, one of the most prolific donors to Cuomo and the New York State Democratic Party, effectively wrote the language of the original immunity provision and played a crucial role in changing the legislation that was ultimately passed last week.
In the State Senate, the original lead sponsor of the new legislation was Alessandra Biaggi, a Bronx Democrat who has been sharply critical of Cuomo’s pandemic response. Senate leadership ultimately removed her from the bill and gave it to another Bronx lawmaker, Luis Sepulveda. A spokesperson for the Senate Democrats, Gary Ginsburg, did not return a request for comment.
A GHNYA spokesman, Brian Conway, pointed to two memos the hospital lobby released to state lawmakers last week as the bill was being drafted and passed. “Working with many of you, we successfully opposed retroactivity,” the July 23rd memo read. “GHNYA strongly opposed not only any retroactivity but the version of the law passed today. We made clear to legislators that the current law protects only situations where a patient’s care was related to a provider’s COVID-19 response and to State orders related to the pandemic.”
“Unfortunately, trial lawyers and others misrepresented the law, stating that it protects providers from all lawsuits, regardless of a tie to the pandemic response,” the memo continued.
Rich Azzopardi, a senior adviser to Governor Cuomo, did not return a request for comment about the legislation passed last week.
The next step for Democrats in Albany are two hearings focused on nursing homes, set for August 3rd and August 10th. “I want to actually get to the bottom of what happened here,” said State Senator Gustavo Rivera, the chairman of the Senate’s Health Committee. “I do not believe self-policing works.”
Assemblyman Kim is hoping to set up a state victim’s compensation fund for the families of those who died from COVID-19, akin to the fund administered for 9/11 victims. He and other Democrats are also seeking an outside investigation into the state’s pandemic response, worried that Cuomo’s joint investigation with the Attorney General’s office is not independent enough.
Kim recently wrote to the United States Ambassador to the United Nations, asking for an international human rights investigation into New York’s pandemic response.
“I think that’s an appropriate response, in light of COVID being a global issue,” Kim said. “It may take a while. I’m hoping it will be taken seriously because this is a full-blown humanitarian crisis.”
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COVID-19
Albany
nursing home
andrew cuomo
Ross Barkan
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