STATE OF NEW YORK
________________________________________________________________________
9077
IN ASSEMBLY
January 31, 2022
___________
Introduced by M. of A. KIM -- read once and referred to the Committee on
Health
AN ACT to amend the public health law, in relation to the responsibil-
ities of nursing homes during pandemics; and providing for the repeal
of such provisions upon expiration thereof
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Article 21 of the public health law is amended by adding a
2 new title 9 to read as follows:
3 TITLE IX
4 RESPONSIBILITIES OF NURSING HOME DURING PANDEMICS
5 Section 2187. Definitions.
6 2188. Responsibilities of nursing home during pandemics.
7 § 2187. Definitions. The following words and phrases when used in this
8 article shall have, unless the context clearly indicates otherwise, the
9 meanings given to them in this section:
10 1. "Public health emergency" means any declared state of emergency
11 made in response to an outbreak of an infectious disease and shall
12 include the novel coronavirus outbreak, COVID-19.
13 2. "Nursing home" shall have the same meaning as defined in section
14 twenty-eight hundred one of this chapter and shall include adult homes,
15 enriched housing programs, assisted living residences and residential
16 health care facilities as defined in such section.
17 3. "Resident" means a resident of a nursing home located in the state
18 and an infectious disease caused or contributed to such resident's
19 death, as documented on such resident's death certificate, or as certi-
20 fied by a physician, nurse practitioner, or physician's assistant
21 currently in good standing in any state or the District of Columbia, or
22 a physician, nurse practitioner, or physician's assistant authorized to
23 practice in New York by executive order during the declared public
24 health emergency who determines with a reasonable degree of medical
25 certainty that the infectious disease caused or contributed to the resi-
26 dent's death. Resident shall include any temporary resident of a nurs-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14454-01-2
A. 9077 2
1 ing home who is receiving subacute rehabilitation care or temporary
2 rehabilitation care.
3 4. "Domestic partner" shall have the same meaning as contained in
4 section twenty-nine hundred sixty-one of this chapter.
5 § 2188. Responsibilities of nursing home during pandemics. 1.
6 Notwithstanding any law, rule, executive order, or regulation to the
7 contrary, during a public health emergency every nursing home shall:
8 (a) comply with all state and federal statutes and regulations, execu-
9 tive orders and centers for disease control and prevention guidelines
10 issued in response to such public health emergency; and
11 (b) follow all basic infection control protocols and guidelines relat-
12 ing to proper infection prevention and control.
13 2. In an action to recover damages from a nursing home for the wrong-
14 ful death of a resident during a public health emergency, proof that a
15 nursing home failed to comply with any of the following as they relate
16 to the public health emergency shall be presumed to be negligence and
17 the cause of the resident contracting the infectious disease:
18 (a) state or federal statutes or regulations;
19 (b) executive orders;
20 (c) centers for disease control and prevention guidelines; or
21 (d) basic infection control practices, relating to proper infection
22 prevention and control practices.
23 3. The presumption established by this article shall only be rebutted
24 by credible and reliable evidence which establishes that the resident's
25 own conduct was the sole proximate cause of the resident contracting
26 such disease.
27 4. In addition to any other lawful element of damages that may be
28 recoverable by reason of the death of the resident, the resident's
29 surviving grandparents, parents, siblings, spouse, domestic partner,
30 children and grandchildren shall be entitled to recover damages for
31 their respective non-pecuniary injuries, including: grief or anguish
32 caused by the resident's death, and for any disorder caused by such
33 grief or anguish, loss of love, society, protection, comfort, companion-
34 ship, and consortium resulting from the resident's death; and loss of
35 nurture, guidance, counsel, advice, training, and education resulting
36 from the resident's death. Any such claim for non-pecuniary injuries
37 shall be brought by the residents' personal representative.
38 5. Any agreement purporting to limit the liability of a nursing home
39 for damages or purporting to limit the remedies of the resident or those
40 seeking damages pursuant to this article is contrary to the public poli-
41 cy of this state and absolutely void.
42 6. Notwithstanding any provision of law to the contrary, all civil
43 claims or causes of action brought by any person for damages against a
44 nursing home for personal injuries or the death of a resident during the
45 novel coronavirus outbreak, COVID-19, including an action pursuant to
46 section twenty-eight hundred one-d of this chapter, may be commenced
47 within two years after the effective date of this title.
48 § 2. This act shall take effect immediately and shall expire and be
49 deemed repealed January 1, 2035.