The below Alert from Barclay Damon begins with a discussion of the Emergency or Disaster Protection Act. You will note the ‘who has immunity list does not include Article 32. I have checked this with OASAS Counsel’s Office. It was a mistake and is being corrected.
|2021 NYS Budget Grants Immunity to Health Care Providers During COVID-19, Shortens the Statute of Limitations for Collections, and More
There are critical provisions relating to health care facilities and providers buried in the newly enacted NYS budget. Most significant is the new Emergency or Disaster Treatment Protection Act, which confers immunity to health care facilities and professionals during the COVID-19 crisis. A few other noteworthy provisions in the budget are highlighted below.
Emergency or Disaster Treatment Protection Act
A new Article 30-D of the Public Health Law has been added, titled the Emergency or Disaster Treatment Protection Act (EDTPA). This act takes effect immediately and is retroactive to the governor’s March 7, 2020, COVID-19 emergency declaration.
Who receives the immunity?
The EDTPA grants immunity to hospitals, nursing homes, and facilities licensed or authorized under Article 28 of the Public Health Law and Articles 16 and 31 of the Mental Hygiene Law as well as “health care professionals,” broadly defined as:
Health care facilities and professionals now have immunity from civil or criminal liability for any harm or damages alleged to have been sustained as a result of an act or omission for services that relates to the diagnosis, prevention, or treatment of COVID-19; assessment or care of an individual with a confirmed or suspected case of COVID-19; or the care of any other individual who presents for health services during the period of the COVID-19 emergency declaration, so long as the criteria below are met:
Immunity does not apply if the harm or damages were caused by an act or omission constituting willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm. However, decisions resulting from a resource or staffing shortage will not fall within this exception.
When does immunity expire?
The immunity will expire whenever the state of emergency declared by Governor Cuomo is lifted.
Finally, the EDTPA extends liability protections to any volunteer organization that has made its facilities available to support response activities made by the state during the COVID-19 emergency. A volunteer organization acting in good faith will not be subject to criminal or civil liability for any harm or damages, regardless of the cause. Volunteers are afforded immunity unless it is established that harm or damages were caused by willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.
New Statute of Limitations for Medical Debt
There has been a significant change to the statute of limitations for collecting a medical debt. A new Section 213-d has been added the Civil Practice Law and Rules that shortens the statute of limitations for bringing an action on medical debt. Previously, a lawsuit could be commenced against a debtor within six years of the date the debt was due. Effective April 3, 2020, health care professionals authorized under Title 8 of the Education Law and Article 28 facilities must commence an action to recover a medical debt within three years of the date of treatment.
Increasing Availability of Telehealth
Section 2999-ee of the Public Health Law is amended to authorize increased application of telehealth in behavioral health, oral health, maternity care, care management facilities; in emergency departments; and for high-need populations by empowering the commissioners of OMH, OASAS OPWDD to permit additional acceptable modalities for telehealth, including audio-only telephone communications, online portals, and survey applications and by expanding the categories of originating sites at which a patient may be located.
Limit on Payment Denials Due to COVID-19
A new Section 4902(13) of the Insurance Law and a new Section 4902(k) of the Public Health Law have been added to provide that services rendered by an Article 28 hospital to an enrollee of a health plan to treat COVID-19 during a declared state disaster emergency related to COVID-19 will not be denied upon retrospective review on the basis that the services were not medically necessary.
A provisionally credentialed physician may not be designated an insured’s primary care physician until fully credentialed by the payor. Once fully credentialed, the insurer shall pay for all services provided by the physician for up to 60 days after submission of the completed application. If the application for full credentials is denied by the insurer, the facility can only bill the patient for co-payments, coinsurance, or deductibles.
This amendment is scheduled to take effect with credentialing applications received on or after July 1, 2020.
The FY 2021 budget recognizes the spread of COVID-19 has and is expected to continue to have a significant impact on the public health and welfare as well as personal and national economics. The legislature and governor have responded with laws designed to mitigate the impact on health care providers. The broad immunity granted by the EDTPA is unprecedented, but is unquestionably necessary to protect vulnerable health care facilities, providers, and workers who are doing their best to respond to this pandemic under crisis conditions.
Finally, although the new budget bill does contain important protections, it also significant limits the time facilities and providers have to commence collections actions against individuals for medical debts. Health care entities must take note of the new, shortened statute of limitations and plan accordingly.