July ML-111

Twenty-One
2020

TO: Chief Executive Officers (New York State)

FROM: Kenneth E. Raske, President

RE: NYS Legislature Considers Damaging Changes to COVID-19 Immunity Law; Urgent
Advocacy Needed

Members of the New York State Legislature have expressed interest in amending the COVID-19 immunity
law that passed earlier this year. Specifically, some legislators would remove protections for services
provided to non-COVID-19 patients whose care may have been affected by the response to the COVID-19
emergency. Some have even advocated making this change retroactive to the beginning of the pandemic.

GNYHA strongly opposes any retroactivity and has made clear 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 have misrepresented the law, stating that it protects
providers from all lawsuits, regardless of a tie to the pandemic response.

The Assembly and Senate appear to have reached agreement on a bill introduced late last night
(A.10840/S.8835) that they plan to consider while in session this week. While the bill would only make
changes prospectively, it would remove non-COVID cases from the immunity statute going forward.
Therefore, if this bill becomes law, immunity during any future surges would only apply to the care of
COVID-19 patients.

We urge you to immediately contact your members of the Assembly and Senate to voice your strong
opposition to this bill.

We are making clear to legislators that while we certainly appreciate that the amendments are not
retroactive, as some legislators continue to advocate, we nevertheless strongly oppose the bill. We are
sharing the attached GNYHA statement of opposition with all legislators and the Governor’s counsel.
Please feel free to use our statement in your own advocacy with members of the State Legislature.

If you have any questions, please contact David Rich (rich@gnyha.org), Laura Alfredo
(lalfredo@gnyha.org), or Andrew Title (atitle@gnyha.org).

cc: Government Affairs Representatives

Legal Affairs Representatives
Public Affairs Representatives

Attachment
July
Twenty-One
2020

TO: Members of the New York State Legislature

FROM: Greater New York Hospital Association (GNYHA)

RE: A.10840/S.8835, Withdraws Important Immunity Protections for Health Care Facilities
and Professionals During Future COVID-19 Outbreaks

A.10840/S.8835 would repeal important protections in the Emergency or Disaster Treatment Protection
Act (EDTPA) for hospitals and health care professionals. The EDTPA gives limited immunity from civil
and criminal liability to health care facilities and their workers for acts or omissions occurring in connection
with providing or arranging for health care services during the COVID-19 emergency under certain
circumstances.

GNYHA, which represents over 150 not-for-profit and public hospitals and health systems in New York
State, strongly opposes this bill. The Legislature passed these important liability protections in recognition
of the incredible sacrifices that health care workers and facilities made in caring for COVID-19 patients
under extraordinarily challenging circumstances.

While the EDTPA broadly protects health care facilities and workers from criticisms and claims made in
hindsight, it is balanced by important conditions and limitations. The law’s protections, which are contained
in article 30-D of the Public Health Law, are eminently reasonable. The immunity does not apply to
intentional criminal conduct, recklessness, or gross negligence. In addition, the EDTPA limits immunity to
specific situations: health care services must be delivered in good faith, and patients without COVID-19
are precluded from suit only if their care was impacted by the defendant’s activities in response to or as a
result of the outbreak and in support of the State’s directives. This means that the immunity law will apply
very differently depending on the facts on the ground (i.e., whether there is a surge or a lull in the pandemic).
This crucial flexibility is fair, given that no one can predict with certainty what the virus has in store for us
in the coming weeks and months.

A.10840/S.8835 removes protections for the care of non-COVID-19 patients even if their care was affected
by the response to the pandemic. Actions taken in response to the pandemic and State directives that can
impact the care of non-COVID-19 patients include hospitals responding to State orders to discharge as
many patients as possible to prepare for a surge; hospitals deploying volunteers, staff, and medical students
from State pools of volunteers and from across the country to serve in emergency departments and other
care settings to relieve severe staffing shortages; the creation of hospital units in non-traditional spaces such
as cafeterias, tents, closed facilities, and other settings; and expedited triage of emergency room patients to
make room for an influx of COVID-19 patients, to name a few.

The public and the State expect these actions to be taken to meet the extraordinary needs of New Yorkers
during a pandemic. These actions should be protected, as they are under the current EDTPA. Without them,
it may be very difficult for hospitals, New York State, and local governments to recruit highly skilled
volunteers during future COVID-19 surges.

New York hospitals are deeply committed to caring for New Yorkers to the best of their abilities at all
times, including in a possible resurgence of COVID-19. The Legislature should not take actions to undercut
or chill that commitment. GNYHA urges legislators to oppose A.10840/S.8835. The Legislature should be
acting to strengthen New York’s response to future surges, not hinder it.