By David Sirota, The Guardian, May 26 2020
Critics say data proves New York’s liability shield is linked to higher nursing home death rates during the pandemic
As Governor Andrew Cuomo faced a spirited challenge in his bid to win New York’s 2018 Democratic primary, his political apparatus got a last-minute boost: a powerful healthcare industry group suddenly poured more than $1m into a Democratic committee backing his campaign.
Less than two years after that flood of cash from the Greater New York Hospital Association (GNYHA), Cuomo signed legislation last month quietly shielding hospital and nursing home executives from the threat of lawsuits stemming from the coronavirus outbreak. The provision, inserted into an annual budget bill by Cuomo’s aides, created one of the nation’s most explicit immunity protections for healthcare industry officials, according to legal experts.
Critics say Cuomo removed a key deterrent against nursing home and hospital corporations cutting corners in ways that jeopardize lives. As those critics now try to repeal the provision during this final week of Albany’s legislative session, they assert that data prove such immunity is correlating to higher nursing home death rates during the pandemic – both in New York and in other states enacting similar immunity policies.
New York has become one of the globe’s major pandemic hotspots – and the center of the state’s outbreak has been nursing homes, where more than 5,000 New Yorkers have died, according to Associated Press data.
Those deaths have occurred as Cuomo’s critics say he has taken a hands-off approach to regulating the healthcare industry interests that helped bankroll his election campaign. In March, Cuomo’s administration issued an order that allowed nursing homes to readmit sick patients without testing them for Covid-19. Amid allegations of undercounted casualties, the governor also pushed back against pressure to have state regulators more stringently record and report death rates in nursing homes.
And then came Cuomo’s annual budget – which included a little-noticed passage shielding corporate officials who run New York hospitals, nursing homes and other healthcare facilities from liability for Covid-related deaths and injuries.
GNYHA – a lobbying group for hospital systems, including some that own nursing homes – said it “drafted and aggressively advocated for” the immunity provision. The new law declares that top officials at hospital and nursing home companies “shall have 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 healthcare services” to address the Covid-19 outbreak.
Prior to the budget language, Cuomo had already temporarily granted limited legal immunity to doctors and nurses serving on the medical frontlines. But the carefully sculpted passage buried in the state’s annual spending bill expanded that by offering extensive immunity to any “healthcare facility administrator, executive, supervisor, board member, trustee or other person responsible for directing, supervising or managing a healthcare facility and its personnel or other individual in a comparable role”.
New York is now one of just two states to shield those corporate officials from both civil lawsuits and some forms of criminal prosecution by the government, according to an analysis by Syracuse University law professor Nina Kohn and the University of Houston’s Jessica L Roberts.
“New York is an outlier and has the most explicit and sweeping immunity language,” Kohn said.
Cuomo’s administration said the new immunity provision – which is a narrow version of a broader proposal championed by the Senate Republican leader, Mitch McConnell – is necessary.
“This pandemic remains an unprecedented public health crisis and we had to realign New York’s entire healthcare system, using every type of facility to prepare for the surge, and recruiting more than 96,000 volunteers – 25,000 from out of state, to help fight this virus,” said Cuomo’s senior adviser Rich Azzopardi in an emailed statement. “These volunteers are good samaritans and what was passed by 111 members of the legislature was an expansion of the existing Good Samaritan Law to apply to the emergency that coronavirus created. If we had not done this, these volunteers wouldn’t have been accepted and we never would have had enough frontline healthcare workers.”
New York is an outlier and has the most explicit and sweeping immunity language
Democratic assemblyman Ron Kim said that “the language of the [immunity] bill and the entire proposal was drafted, submitted, and negotiated into law by Governor Andrew Cuomo and his staff”. He is leading 14 New York lawmakers in pushing legislation to repeal the language – and some of them assert that the immunity provisions are linked to higher death rates in nursing homes.
“It is now apparent that negligence by administrators and executives of nursing homes has occurred at an extraordinary degree,” proponents of the legislation argued in a memo accompanying the bill. “[The immunity law] egregiously uses severe liability standards as a means to insulate healthcare facilities and specifically, administrators and executives of such facilities, from any civil or criminal liability for negligence. Repealing this article is a much-needed step to holding healthcare administrators accountable and doing everything possible to stop even more preventable deaths from happening.”
GNYHA has framed its push for liability protections as an effort to defend workers. In a 2 April memo to its members, the association wrote: “You and your heroic workers have enough to agonize over without having to worry about liability for decisions and actions made under extraordinarily challenging circumstances.”
By contrast, opponents of the legislation contend that Cuomo’s language immunizing executives from civil and criminal litigation is designed to make it easier for nursing home corporations to profit off unsafe business practices.
“The reason why neglect happens in nursing homes is executives make business decisions that result in the frontline workers not having the tools – in nursing homes, the manpower – to deliver the services those workers are trained to deliver,” said plaintiffs’ attorney Andrew G Finkelstein, a managing partner at Jacoby & Meyers.
“These executives choose how much staffing will be in a nursing home and they know the more staffing that they put in, the more safe the nursing home will be – but the less profits they will make,” Finkelstein said. “When you remove their liability from that choice, the net effect will be less and less staffing and more and more neglect in nursing homes, because those decision-makers will know there will be no legal consequences for the decisions they make.”
Immunity followed $2.3m in campaign cash
The immunity provision in Cuomo’s budget came 18 months after the GNYHA delivered $1.25m to the Cuomo-controlled New York State Democratic committee that was supporting the governor’s re-election bid. The money went to the committee’s so-called housekeeping account. The account, which can accept unlimited donations, is meant to support general party activities but has also been used to promote Cuomo and his agenda in television ads, including in his 2018 re-election campaign.
The GNYHA donations – which were a huge increase from prior years – made the group one of the New York Democratic party’s largest contributors during Cuomo’s campaign. Three of the hospital association’s top officials separately gave more than $150,000 to Cuomo’s campaign between 2015 and 2018.
In all, during the governor’s second term, Cuomo’s campaign and his state party committee raked in more than $2.3m from hospital and nursing home industry donors and their lobbying firms, according to data compiled by the National Institute on Money in Politics.
Azzopardi said the Cuomo administration’s decision to insert the language into the budget was not a reflection of lobbyists’ influence.
“This law was intended to increase capacity and provide quality care, and any suggestion otherwise is simply outrageous,” he said.
Big lobbying contracts
GNYHA paid $60,000 to the MirRam Group in March and April, according to the firm’s report. John Emrick, a lobbyist at the firm who previously served as the chief of staff for the controversial Independent Democratic Conference state senate caucus, disclosed lobbying the Senate majority leader’s office on “safe staffing” and “medical malpractice”.
Another GNYHA lobby firm is Bolton-St Johns, which gave Cuomo’s campaign $40,000 during his 2018 re-election. That firm employs Giorgio DeRosa, Joseph DeRosa, and Jessica Davos – the father, brother and sister of Cuomo’s top aide, Melissa DeRosa, who is secretary to the governor. Giorgio DeRosa is described on Bolton’s website as a partner and the firm’s “chief Albany lobbyist”. GNYHA pays the firm $24,000 a month to lobby on “budget/appropriations” issues, according to state records.
The governor’s office has said Melissa DeRosa has been “strategizing with hospital leadership and business executives across the state to ensure frontline workers have the resources they need”.
While Azzopardi acknowledged in an email that Giorgio DeRosa’s firm lobbies for GNYHA, he said: “This law was intended to increase capacity and provide quality care, and any suggestion otherwise is simply outrageous. Also: Melissa did not negotiate this bill, nor did anyone at that firm lobby on it.”
Giorgio and Joseph DeRosa were listed as lobbyists in GNYHA state disclosures for many years, including when Melissa DeRosa was serving as Cuomo’s chief of staff. As of mid-2017, the DeRosas have no longer been listed as lobbyists on the association’s disclosure forms.
Bolton-St Johns spokesperson Justin Berhaupt said in an emailed statement that “Giorgio DeRosa has never worked on issues related to GNYHA.
“Historically, Bolton St Johns registered all of its lobbyists for all of its clients,” Berhaupt explained. “Upon Ms DeRosa becoming secretary to the governor, Bolton St Johns changed its policy and only registered Bolton St Johns’ lobbyists for the specific clients they served.”
GNYHA spokesperson Brian Conway said in an emailed statement: “GNYHA does not lobby on behalf of nursing homes.” He added: “When GNYHA lobbied for Covid-19-related immunity for hospitals and their workforce, we did not involve Bolton-St Johns.”
Since receiving large hospital and nursing home campaign donations, Cuomo has supported other legislation backed by those industries. His administration backed New York’s first increase of Medicaid reimbursement rates in more than a decade, which is expected to deliver a windfall to private healthcare facilities.
During his re-election campaign, Cuomo promised that he would support requiring hospitals and nursing homes to spend more on staffing, which proponents said would improve healthcare and safety, but could also reduce corporate profit margins. The governor subsequently only initiated a study of the issue – a move that the nursing home industry’s lobbying group lauded.
People are 7.5 times more likely to die from Covid-19 in states with corporate legal immunity
As New York’s state legislative session draws to a close this week, 14 Democratic legislators in Albany are sponsoring a bill to repeal Cuomo’s corporate immunity law. In pushing for a vote on the legislation, bill author Kim is circulating a report to other lawmakers that he says shows that liability shields are linked to higher nursing home death rates.
To date, 19 states have enacted some form of immunity for hospitals and nursing homes during the pandemic. Based on data reported by the New York Times, Kim’s analysis asserts that more than three-quarters of total nursing home deaths from Covid-19 come from states that have granted corporate immunity to healthcare facilities.
The analysis found that “of the 10 states with the highest fatality rates, eight have corporate immunity and represent 93% of all fatalities, or 63,187 deaths”. The report also says the data show that “states with corporate immunity saw more than three times the absolute number of fatalities than states without such immunity. The average rate of death per state is 7.5 times higher in states with corporate immunity than states with no immunity for corporations.”
In all, the report concludes: “77% of total deaths come from states that gave immunity to corporations who owned nursing homes and healthcare facilities; moreover, 76% of total nursing home deaths come from states that have legal immunity status for these facilities.”
Giving immunity to corporations in care work before the apex of a pandemic leads to higher fatalities
“Simply put, people are 7.5 times more likely to die from Covid-19 in states with corporate legal immunity,” Kim said. “Giving immunity to corporations in care work before the apex of a pandemic leads to higher fatalities. It is clear that businesses, especially nursing homes that interface with Covid-19 positive individuals, are less compelled to implement proper procedures that save lives.”
Azzopardi disputed the report’s findings, calling it a “flaming hot pile of bad math and inaccurate, skewed metrics”. He said the report initially overstated the per-capita death rate in the state’s nursing homes, and he questioned whether it accounts for the fact that other states may share less information than New York.
“The reality is the states cited happened to also be mainly those hardest hit east coast states that received the 3 million travelers from Europe, which brought the virus here for weeks after travel from China was blocked, greatly helping the west coast,” Azzopardi said.
‘The industry gets caught with its pants down … we’re now telling them they don’t have to wear pants’
Azzopardi asserted that the new immunity law “builds on NY Good Samaritan laws which say that if you provide medical help to someone at the scene of an accident in an emergency you are immune from suit”.
But some legal experts counter that the new provision represents a significant departure from the state’s longstanding laws.
Prior to the change, New York statutes went out of their way to declare that nursing home companies and their executives are liable for corporate misconduct. In one high-profile class action case in central New York last year, a judge denied James Square nursing home’s motion to shield owners and shareholders from liability over allegations that the company’s cost-cutting measures endangered patients.
I don’t have a problem with giving frontline workers immunity, it is the people who make the business decisions that kill people
“I don’t have a problem with giving frontline workers immunity, it is the people who make the business decisions that kill people – they are the ones who have to be held personally responsible,” said attorney Jeremiah Frei-Pearson, who represented James Square residents in their successful suit, which ultimately forced the company to spend more money to increase staffing at the facility. “Many of the corporate owners are just trying to make money – they don’t care about the elderly people in their custody, and if you take them off the hook, they are going to do the absolute minimum, which risks lives.”
Under Cuomo’s new liability shield law, that kind of ruling may be harder to secure at a time when the Trump administration has been reducing fines against nursing home operators and is now suspending safety enforcement during the pandemic.
“We’ve had a longstanding problem holding nursing homes responsible, because if you look at government enforcement, it’s typically a slap on the wrist. A private lawsuit is often all you have left to hold a nursing home accountable,” said Syracuse University’s Kohn. “Granting immunity sends a terrible message for the future. The industry gets caught with its pants down during the crisis, and we’re now telling them they don’t have to wear pants.”
They could sue but now because of this immunity they cannot
As they push to expand immunity laws across the country, the hospital and nursing home industries have continued to cast their campaign as a necessary defense of medical workers.
“As our care providers make these difficult decisions, they need to know they will not be prosecuted or persecuted,” said an emblematic letter from industry groups pressing California’s governor, Gavin Newsom, to issue an executive order shielding them from legal liability.
And yet Kohn’s research shows that 16 out of the 19 states that created liability protections extended immunity to both individual workers and nursing home facilities as a whole. New York – unlike many other states – explicitly extended the immunity to company executives and corporate board members who are not on the frontlines, but who are making key budget and staffing decisions that affect workers and patients.
Kim says that the expansion beyond healthcare workers is not an accident – he said it deliberately “discourages medical staff and frontline workers in nursing homes from safely coming out against malpractices they might observe from executive leadership”.
That assertion was echoed by University of Wyoming law professor Michael Duff, one of the nation’s leading experts on workplace law. He said that while the change does not modify traditional workers’ compensation protections for hospital or nursing home employees, it could reduce the legal rights of contract workers to demand better safety protections at precisely the moment that healthcare facilities are outsourcing work to third-party staffing firms.
“Often medical personnel in operating rooms and emergency areas are contracted out [and] the same often goes for groups like janitorial services,” said Duff, a former National Labor Relations Board investigator. “Ordinarily, employees of the institutions would be unable to sue because of workers’ compensation exclusive remedy rule. But independent contractors aren’t bound by that rule. They could sue but now because of this immunity they cannot.”
For its part, the Cuomo administration has struck a defiant tone. During a televised press conference this weekend, DeRosa suggested that New York’s nursing-home casualty rates are not anomalously high – and she argued that the state’s “confirmed” death rates are in line with other states, though others have asserted that the state has been undercounting nursing home casualties.
Meanwhile, Cuomo has enlisted titans to lead a 15-member commission focused on “reimagining” New York and its public policies. Among the panel members is Northwell Health’s CEO, Michael Dowling, whose company operates two New York nursing homes where there have been Covid-related deaths.
Northwell Health is a member of the hospital association that lobbied for the immunity provisions, and Dowling is a Cuomo donor.
This story was reported by David Sirota for Jacobin magazine