February 28, 2021

Below please see the R,M,S Briefing prepared by our government relations consultants.

The briefing discusses a new bill being proposed by certain members of the Assembly Majority that would repeal broad liability protections extended to certain healthcare facilities, practitioners and administrators under Article 30-D.  30-D currently includes Article 16, 28 and 31 organizations.  It does not include Article 32 providers although OASAS tried hard to get these providers included last year when 30-D was in play.

Again IF the new bill were to pass in both houses and be signed by the Governor, the protections under Article 30-D would be repealed.

Here’s some information regarding who is currently covered under Article 30-D.

3. The term “health care facility” means a hospital, nursing home, or other facility licensed or authorized to provide health care services for any individual under article twenty-eight of this chapter, article sixteen and article thirty-one of the mental hygiene law or under a COVID-19 emergency rule. 4. The term “health care professional” means an individual, whether acting as an agent, volunteer, contractor, employee, or otherwise, who is: (a) licensed or otherwise authorized under title eight, article one hundred thirty-one, one hundred thirty-one-B, one hundred thirty-one-C, one hundred thirty-seven, one hundred thirty-nine, one hundred forty, one hundred fifty-three, one hundred fifty-four, one hundred sixty-three, one hundred sixty-four or one hundred sixty-five of the education law; (b) a nursing attendant or certified nurse aide, including an individual who is providing care as part of an approved nursing attendant or certified nurse aide training program; (c) licensed or certified under article thirty of this chapter to provide emergency medical services; (d) a home care services worker as defined in section thirty-six hundred thirteen of this chapter; (e) providing health care services within the scope of authority permitted by a COVID-19 emergency rule; or (f) a health care facility administrator, executive, supervisor, board member, trustee or other person responsible for directing, supervising or managing a health care facility and its personnel or other individual in a comparable role. 5. The term “health care services” means services provided by a health care facility or a health care professional, regardless of the location where those services are provided, that relate to: (a) the diagnosis or treatment of COVID-19; or (b) the assessment or care of an individual as it relates to COVID-19, when such individual has a confirmed or suspected case of COVID-19.

2/27/2021

We will be sending our legislative bill updates tomorrow regarding legislation on the Assembly Health Committee agenda this week, however, we wanted to highlight this legislation. The bill repeals the liability protection for health care providers and institutions. We expect the bill to be considered both in Committee and by the full Assembly next week.

The bill repeals Article 30-D of the Public Health Law (colloquially known as the Emergency or Disaster Treatment Protection Act) with the intent of holding health care facilities, administrators, and executives accountable for harm and damages incurred. We have embedded the full bill and sponsors memorandum below:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          3397
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 26, 2021
                                       ___________
 
        Introduced  by  M.  of  A.  KIM,  EPSTEIN,  JACOBSON, GOTTFRIED, BYRNES,
          MONTESANO, NIOU,  GLICK,  L. ROSENTHAL,  BARRON,  GRIFFIN,  McDONOUGH,
          STECK,  CARROLL,  CYMBROWITZ,  HEVESI,  SIMON,  QUART -- read once and
          referred to the Committee on Health
 
        AN ACT to repeal article 30-d of the public health law relating  to  the
          emergency or disaster treatment protection act
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Article 30-d of the public health law is REPEALED.
     2    § 2. This act shall take effect immediately.
 
 
 
 
 
 
 
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [] is old law to be omitted.
                                                                   LBD02984-01-1

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)

 
BILL NUMBER: A3397
 
SPONSOR: Kim
 
TITLE OF BILL:
 
An act to repeal article 30-d of the public health law relating to the
emergency or disaster treatment protection act
 
 
PURPOSE OR GENERAL IDEA OF BILL:
 
This bill repeals Article 30-D of the Public Health Law (colloquially
known as the Emergency or Disaster Treatment Protection Act) with the
intent of holding health care facilities, administrators, and executives
accountable for harm and damages incurred.
 
 
SUMMARY OF PROVISIONS:
 
Section 1 amends the Public Health Law by repealing Article 30-D.
 
Section 2 provides the effective date.
 
 
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):
 
This is a new bill.
 
 
JUSTIFICATION:
 
As the COVID-19 pandemic has progressed in New York State, it is now
apparent that negligence by administrators and executives of nursing
homes has occurred at an extraordinary degree.  The consequences have
been tragic: as of early May 2020, nearly five thousand of New York's
elderly and most vulnerable residents have succumbed to this disease,
and to date, there has been zero accountability nor transparency for
these preventable deaths. The ELFA bill (A.9506/S.7506) in the FY 2021
state budget bills codified Article 30-D of the Public Health Law. In
particular, Article 30-D egregiously uses severe liability standards as
a means to insulate health care facilities and specifically, administra-
tors and executives of such facilities, from any civil or criminal
liability for negligence. Repealing this article is a much-needed step
to holding health care administrators accountable and doing everything
possible to stop even more preventable deaths from happening.
 
 
PRIOR LEGISLATIVE HISTORY:
 
This is a new bill.
 
 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
 
None.
 
 
EFFECTIVE DATE:  Immediately upon passage.