On April 6, Governor Cuomo signed into law Chapter 96 of the Laws of 2021, which completely repeals the health care facility and provider COVID-19 immunity from liability provisions adopted in April 2020 as part of the Emergency or Disaster Treatment Protection Act (Public Health Law §§ 3080-82). As a result, health care facilities, their leadership, and health care professionals in general no longer are protected from civil or criminal liability when their “treatment of the individual is impacted by a health care facility’s or health care professional’s decisions or activities in response to or as a result of the COVID-19 outbreak. . . .”
Without this statutory protection, health care providers and leaders need to be extra cautious with regard to the impact COVID-19 may have on their provision of services. They face significant civil, and potentially criminal, liability if they fail to properly take COVID-19 issues into account when providing services. This is particularly true given the enforcement and regulatory climate currently in New York state.
To best protect themselves, health care providers and leaders should:
- Fully understand, implement, and follow the current New York State Health Department’s COVID-19 guidance for health care providers,
- Fully understand, implement, and follow the current federal Centers for Disease Control COVID-19 guidance for health care providers, entitled Healthcare Facilities: Managing Operations During the COVID-19 Pandemic.
- Take care to ensure that other measures they take to address the impact that COVID-19 has on their provision of services are supported by credible clinical and scientific evidence.
- Review internal policies and procedures to determine whether they need revisions, additions or deletions to take into account COVID-19-related issues.
- Consult with legal counsel regarding any compliance issues, conflicting requirements, uncertainty or difficulties relating to COVID-19 requirements.
By taking these steps, health care providers and leaders can minimize liability exposure and protect themselves in connection with the impact of COVID-19 on their operations and delivery of services.