July 24, 2020
Yesterday both houses of the NYS Legislature passed the bill we are calling the ‘Legal Shield and COVID-19″ bill. The bill now goes to the Governor for final action.
The final state budget included immunity for health professionals related to diagnosis or treatment of COVID-19 and for the assessment or care of an individual as it relates to COVID-19 when an individual has a confirmed or suspected case. Below is our summary of the enacted budget language which includes professionals in the BH sector.
Tthe bill (text below our budget summary) removes liability protection related to the prevention of COVID-19, general liability protection for anyone else presenting for care during this period and for arranging for care for those with COVID-19, on a prospective basis. See highlighted additions/text removals.
Healthcare and Professional Liability Protections for COVID-19 in Final State Budget SFY 2020-21
PART GGG of the final budget limits the liability for healthcare professionals, health care facilities and organizations that provide treatment and services related to the COVID-19 state of emergency. This includes immunity from any liability, civil or criminal, for any harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care service. The provision retains provisions regarding liability for harm caused by willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.
“Health Care Facility “means a hospital, nursing home or other facility licensed or authorized to provide health care services for any individual under article 28, article sixteen, article thirty-on of the mental hygiene law or under a COVID-19 emergency rule. “Health care professionals” mean agents, volunteers, contractors, employees or otherwise that is a licensed or certified physician, physician assistant, specialist assistant, chiropractor, pharmacist, pharmacy technician, nurse, midwife, psychologist, social worker, mental health practitioner, respiratory therapist, clinical lab technician, nursing attendant, certified nurse aide, nursing student, EMT, home care worker, health care facility administrator, supervisor, executive, board member, trustee or other person responsible for directing or managing a facility, or anyone else providing health care within scope of authority permitted by a COVID-19 emergency rule.
We have embedded the bill that passed both houses yesterday (below). It has not changed since the email update we sent earlier this week. ‘Health care professionals’ which this bill references was defined in the enacting statute in the final budget year this. Immediately below is the definition of health care professional which DOES include a number of professionals in the behavioral health sector:
“Health care professionals” means agents, volunteers, contractors, employees or otherwise that is a licensed or certified physician, physician assistant, specialist assistant, chiropractor, pharmacist, pharmacy technician, nurse, midwife, psychologist, social worker, mental health practitioner, respiratory therapist, clinical lab technician, nursing attendant, certified nurse aide, nursing student, EMT, home care worker, health care facility administrator, supervisor, executive, board member, trustee or other person responsible for directing or managing a facility, or anyone else providing health care within scope of authority permitted by a COVID-19 emergency rule.
Here’s more about the bill:
|A 10840 Rules (Kim) Same as S 8835 SEPULVEDA|
|Public Health Law|
|TITLE….Relates to amending provisions regarding health care facilities and professionals during the COVID-19 emergency|
|07/20/20||referred to codes|
|07/22/20||reported referred to rules|
|07/22/20||rules report cal.352|
|07/22/20||ordered to third reading rules cal.352|
|07/23/20||substituted by s8835|
|07/20/20||REFERRED TO RULES|
|07/23/20||ORDERED TO THIRD READING CAL.1033|
|07/23/20||DELIVERED TO ASSEMBLY|
|07/23/20||referred to codes|
|07/23/20||substituted for a10840|
|07/23/20||ordered to third reading rules cal.352|
|07/23/20||returned to senate|
STATE OF NEW YORK
July 20, 2020
Introduced by COMMITTEE ON RULES — (at request of M. of A. Kim, Gott-
fried) — read once and referred to the Committee on Codes
AN ACT to amend the public health law, in relation to amending
provisions regarding health care facilities and professionals during
the COVID-19 emergency
The People of the State of New York, represented in Senate and Assem-
bly, do enact as follows:
1 Section 1. Subdivision 5 of section 3081 of the public health law, as
2 added by section 1 of part GGG of chapter 56 of the laws of 2020, is
3 amended to read as follows:
4 5. The term “health care services” means services provided by a health
5 care facility or a health care professional, regardless of the location
6 where those services are provided, that relate to:
7 (a) the diagnosis[, prevention,] or treatment of COVID-19; or
8 (b) the assessment or care of an individual [with] as it relates to
9 COVID-19, when such individual has a confirmed or suspected case of
10 COVID-19[; or
11 (c) the care of any other individual who presents at a health care
12 facility or to a health care professional during the period of the
13 COVID-19 emergency declaration].
14 § 2. Subdivision 1 of section 3082 of the public health law, as added
15 by section 1 of part GGG of chapter 56 of the laws of 2020, is amended
16 to read as follows:
17 1. Notwithstanding any law to the contrary, except as provided in
18 subdivision two of this section, any health care facility or health care
19 professional shall have immunity from any liability, civil or criminal,
20 for any harm or damages alleged to have been sustained as a result of an
21 act or omission in the course of [arranging for or] providing health
22 care services, if:
23 (a) the health care facility or health care professional is [arranging
24 for or] providing health care services in accordance with applicable
25 law, or where appropriate pursuant to a COVID-19 emergency rule [or
26 otherwise in accordance with applicable law];
EXPLANATION–Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
- 10840 2
1 (b) the act or omission occurs in the course of [arranging for or]
2 providing health care services and the treatment of the individual is
3 impacted by the health care facility’s or health care professional’s
4 decisions or activities in response to or as a result of the COVID-19
5 outbreak and in support of the state’s directives; and
6 (c) the health care facility or health care professional is [arranging
7 for or] providing health care services in good faith.
8 § 3. This act shall take effect immediately and shall apply to claims
9 for harm or damages if the act or omission that causes such harm or
10 damage occurred on or after such effective date; provided however this
11 act shall not apply to any act or omission occurring after the expira-
12 tion of the COVID-19 emergency declaration.