By Frank G. Runyeon

Law360, New York (April 17, 2020, 8:39 PM EDT ) As thousands of elderly New Yorkers die of COVID-19, a recently passed immunity measure shields poorly staffed and undersupplied nursing homes from liability in most cases, relieving administrators but alarming advocates who fear the state law will hide deadly neglect.

In a March executive order and April budget bill, New York state granted a robust shield to nursing homes and their staff as the facilities desperately seek personnel, equipment and testing to cope with a pandemic that has now killed 2,690 of their residents across the state as of Wednesday, according to statistics released Friday. The law loosens record-keeping requirements and immunizes health care providers from liability as long as they are responding to the COVID-19 emergency in good faith.

"It's very protective," said Fran Ciardullo of Barclay Damon LLP, who represents New York nursing homes.

The New York law, Emergency Or Disaster Treatment Protection Act, declares that "any health care facility or health care professional shall have immunity from any liability, civil or criminal, for any harm or damages alleged," as long as the care is provided in accordance with state rules and affected by "decisions or activities in response to or as a result of the COVID-19 outbreak." Other states have made similar moves to shield health care workers.

While an understaffed nursing home in New York without enough personal protective equipment, or PPE, could still be held liable if it committed intentional harm, gross negligence or reckless misconduct — such as never trying to get added supplies during the pandemic — it would be immunized as long as it is making a good faith effort to care for residents, Ciardullo said.

"It's a pretty high bar," said Ciardullo, noting that plaintiffs rarely win cases of gross neglect and reckless misconduct against health care providers in the Empire State.

Nursing home administrators say they are relieved by the new law at a time when their staff members are falling ill and not coming to work, protective gear is in short supply, and the government is not providing them with test kits.

But advocates for nursing home residents are alarmed by the immunity law. They say the measure further erodes accountability in a state nursing home system that has long been plagued by short staffing and lax oversight. Because the New York State Department of Health has banned visitors from nursing homes as an infection control precaution, family members' observations — typically a rich source of evidence in cases — are no longer available.

"It's just not acceptable that you're going to put people in harm's way and then have there be no accountability," said Richard Mollot of the Long Term Care Community Coalition, finding fault with the law's provision waiving liability for understaffing during the crisis. "It's not open season on the elderly."

By Wednesday, 354 of the state's 613 nursing home facilities had reported at least one confirmed infection, with a total of 6,475 cases in nursing homes statewide. The virus had killed 2,690 residents of the state's nursing homes, which have a total capacity of 95,000 beds. The 10 hardest-hit facilities had a collective death toll of 396, all in New York City or Westchester County.

State health officials and nursing home administrators cite a lack of PPE, which is being prioritized for hospitals, as a major contributor to the spread of the virus. Some facilities report paying exorbitant prices for the equipment, including masks, gowns and gloves, which help prevent asymptomatic staff from infecting vulnerable patients.

The state's order to nursing homes to take in COVID-19 patients as a way of freeing up hospitals is also compounding the risk of infection at the facilities.

Given all that, "It just seems that liability isn't the first thing we should be thinking about," said Jim Clyne, CEO of LeadingAge NY, which represents state and nonprofit nursing homes and lobbied for the law. "We should be supporting them in every way that we can."

Nursing home administrators understand why hospitals staffers are getting priority for equipment, said Clyne, "but you also need to put a priority on the place that's going to fill the ICU — the senior community."

And even though New York health authorities identify elderly people with preexisting conditions as a priority for COVID-19 testing, Clyne noted, nursing homes are not getting test kits.

On top of that, nursing home workers have fallen ill themselves or need to stay home to take care of their children while schools are closed. And while Clyne said nursing homes are often vilified, the staffers are simply "trying to keep very sick people inside alive."

In a statement to Law360, the state Health Department said, "We've said from the start that protecting our most vulnerable populations including people in nursing homes is our top priority."

The department added that it "acted quickly and aggressively to issue guidance specifically for these facilities on testing, infection control, environmental cleaning, staffing, visitation, admission, readmission, and outreach to residents and families."

On Friday, the state health commissioner said his office was working to provide more testing, staff and PPE  to nursing homes.

"We have stockpiles," said Commissioner Dr. Howard Zucker, when asked where PPE would come from.

While advocates understand nursing homes are struggling with staffing and supplies in the midst of a deadly outbreak, they are worried about an information blackout during the nursing home lockdown and a lack of consequences for improper care.

Deborah Truhowsky, a plaintiffs lawyer specializing in neglect, elder abuse and medical malpractice cases, told Law360 that she fears the new law may encourage complacency.

"My concern is that facilities are going to feel like they can just not even try" to provide quality care, Truhowsky said. "That part is very alarming."

Truhowsky said the law leaves neglected residents and their families less evidence to use in court. Nursing home records and family observations are a crucial part of building a case, Truhowsky said, but with record-keeping requirements loosened and family visits banned, there may be little to show a judge and jury.

"Families are really at the mercy of the facility to tell them what's going on," Truhowsky said. "That communication, historically, has not been good. Magnify that with this pandemic, and communication is so sparse, difficult, inaccurate and being withheld."

Truhowsky said she would encourage courts to look at conditions preceding the crisis, including staffing and policies to deal with a potential viral outbreak, in order to establish a pattern of neglect.

"What do you need to control an outbreak? You need to have proper infection control and staffing," she said.

Information is also lacking at the state level. Health officials have refused to publicly identify all the nursing homes that have COVID-19 cases and deaths, as neighboring states have done, even though the facilities are required to report that data to the state.

The official advocate for nursing home residents, State Ombudsman Claudette Royal, told Law360 that some nursing homes were also declining to provide information about "their COVID-19 status" to residents' families or to her office. Royal halted all on-site oversight of nursing homes during the pandemic out of concern for her elderly volunteer staff.

Royal's coordinator in New York City, Deirdre Garrett-Scott, said she had received consistent reports of severe understaffing from elderly residents telling her that there was just one nursing aide for 40 to 60 residents and that residents were "not eating, not being toileted, not being showered, not being attended to."

Garrett-Scott was shocked by the nursing-home fatality statistics released by the state on Friday.

"This is horrifying. This is really horrifying," she said, viewing the death toll in her region for the first time. She said that while some nursing home administrators had been honest with her about their death toll, at least one Queens facility had clearly lied about it.

Mollot, the residents' advocate, said that some family members are not even being told about a loved one's illness, in violation of federal regulations.

"People are dying and family members are not even being told they had the virus or symptoms of the virus until they are dead," Mollot said.

In an attempt to address these issues, Gov. Andrew Cuomo said Wednesday that he would soon be "requiring nursing homes to report positive COVID-19 cases and deaths to the families of those who are living in the nursing home facility within 24 hours."

The grim challenges faced by nursing homes were on display during a visit to The New Jewish Home in upper Manhattan on Thursday. Bodies were being held in a refrigerated truck parked in the loading dock outside the 500-bed facility because of a backlog at funeral homes, according to workers on-site and the hospital administrator, Dr. Jeffrey Farber.

On Friday, the state released data showing the facility had reported 21 deaths due to COVID-19, what appeared to be an average death toll for the six Manhattan nursing homes listed.

Farber, president of The New Jewish Home, said the facility had proactively taken in COVID-19 patients from hospitals, but that COVID-19 test kits were only sporadically available. He said it was a "daily struggle" to procure PPE, which staff members now clean and reuse.

"The staff are absolutely our health care heroes. They are on the front lines," Farber said. "They are exhausted. It's been about a month. They are weary, anxious, scared."

Farber sees the immunity law as both a "nod of support" to nursing homes and a source of encouragement to medical volunteers who have helped fill the staffing shortages. Six physician volunteers are working for his organization now, he said.

Farber says the family visitor ban is "anathema" to his approach to nursing home care and that staff members are helping residents celebrate birthdays and connect them to their families via video chats.

Still, while Farber's staff updates family members if a resident falls ill, he said privacy rules bar him from telling a family that a resident's roommate tested positive for COVID-19. He declined to reveal how many COVID-19 cases or deaths occurred at his facility during an interview with Law360 on Thursday before the state released the death toll on Friday.

"We're doing everything that we can," Farber said.

The fatal danger COVID-19 poses to older people in nursing homes is clear to state leaders, with Cuomo calling the facilities "ground zero" on Thursday.

"One ember finds its way in and then it's fire through dry grass," Cuomo said. "You can't hermetically seal a nursing home. You can't put it in a bubble and say I'll protect these vulnerable people. You can't. You can't."

--Editing by Jill Coffey.

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