ALBANY, N.Y. (NEWS10) — Some lawmakers are calling on Gov. Andrew Cuomo to repeal all legal immunity for nursing homes, and turn over lobbyist communications that they feel could’ve influenced decisions surrounding the liability protections that were included in the budget.
Last spring, state lawmakers granted New York nursing homes one of the broadest legal protections from both lawsuits and criminal prosecutions in the nation. Lobbyists from the health care industry said they drafted the provision in the budget to protect nursing homes that were being stretched to their limits by the pandemic.
Lawmakers partially rolled back that immunity last summer, saying it would no longer apply to suits or prosecutions over non-COVID-19 patients. But provisions remained to shield facilities from being sued or prosecuted over care “related to the diagnosis or treatment of COVID-19.”
New York was one of a number of states to enact laws during the pandemic that require either gross negligence or intentional misconduct to prove liability, but New York’s laws were especially broad.
Assembly member Ron Kim will rally with other lawmakers downstate on Wednesday. He believes there could be a correlation between the state’s granting of such extensive legal immunity, and the decision to report COVID-19 deaths of nursing home patients in the way the state did, separating those who died in hospitals versus in the nursing home facilities. Kim told NEWS10 many of his colleagues didn’t even know the legal immunity was slipped into the budget.
“[Gov. Cuomo] knows, I know, [and] everyone else in Albany knows, if that was a stand-alone bill, he would’ve been laughed out of our conference. That would have never passed in our legislative body,” Kim said.
Kim also said the lobbyists who drafted the immunity provisions, the Greater New York Hospital Association [GNYHA] were donors to Cuomo’s campaign, and he claims the shield of the law allowed facilities to spend less money on COVID-19 care.
“New York, quietly, in the dark, through Cuomo’s network, was able to get it done, and it had a ripple effect in disincentivising an industry—that, 63 to 65% is for profits—from doing anything further in terms of hiring staffing and investing in PPE, and getting ahead of this,” Kim said. “Now, they’re like, ‘Well, now we have this, we can’t get arrested, and we can’t get sued, so why do we want to spend money?’”
Stephen Hanse, president of the New York State Center for Assisted Living and the New York State Health Facilities Association, which represents many of the state’s for-profit nursing homes, said the provisions were “fair and balanced,” and that “not a single facility put profit before the needs of their residents.”
NEWS10 reached out to GNYHA for comment on Kim’s claims.
Their spokesman clarified that topics of discussion between the organization and government officials have included implementing the State directives on hospital capacity matters, addressing PPE, ventilator, and medication shortages, and “providing appropriate immunity to health care facilities and their staff given the extraordinary circumstances facing the health care system.”
Their statement continued:
As has been widely reported, GNYHA advocated for the State’s COVID-19 immunity law. We continue to believe, given the extraordinarily challenging circumstances facing hospitals and other providers during this pandemic, that it is right to protect health care facilities and their staff from liability except in cases of gross negligence and intentional wrongdoing. Our communications with the State on this issue included submitting immunity language for consideration by the Governor’s office and the State Legislature. (It is common practice for advocacy organizations to submit draft legislative language for consideration). Our primary advocacy focus was on protecting hospitals and their staff. The final version that passed in April differed in certain significant respects from our proposed language.Brian Conway, Greater New York Hospital Association [GNYHA] spokesman
As for the campaign donations, GNYHA said their “political contributions are a matter of public record.”
Kim released three reports, the final of which was posted on July 7, on “correlations between early corporate immunity and nursing home fatalities across the country.” He told NEWS10 that sometime between June and August, the state started categorizing nursing home deaths differently, and that nailing down a specific date could lead to revelations about the state’s intentions with broad legal immunity.
“That is the key, I think, that would unravel this whole thing. Did they make the decision because we were right there? As you know, a number of publications were already reporting on the impact of legal immunity in nursing homes. But the moment they decoupled that number, it didn’t look as bad anymore, and I lost all the rationale,” Kim said, “and my report, all of a sudden, didn’t look significant.”
Sen. Jim Tedisco hopes an investigation will reveal the circumstances surrounding the inception and timing of the immunity provision.
“They should be asking those questions about what all this means, and what were the surrounding issues,” Tedisco said. “I can’t say why the governor did that full indemnification, and did not provide any liability to protect the loved ones of family members who count on nursing homes as a lifeline, but again, I’ll point to the fact. It doesn’t smell too good. It doesn’t look too good.”
Gov. Cuomo recently proposed nursing home reforms, including a requirement that facilities spend a minimum of 70% of revenue on direct patient care and a minimum of 40% of revenue on resident staffing.