Add §2808-f, Art 21 Title 9 §§2187 - 2188, Pub Health L; add §98-d, St Fin L; add §217-b, CPLR
Relates to enacting the Justice for Nursing Home Victims act; creates a nursing home resident COVID-19 compensation program to provide full compensation to any nursing home resident or their statutory beneficiary when COVID-19 caused or contributed to such resident's death; provides the responsibilities of a nursing home during a pandemic; provides for the repeal of such provisions upon the expiration thereof.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A3582
SPONSOR: Kim TITLE OF BILL:
An act to amend the public health law and the state finance law, in
relation to enacting the Justice for Nursing Home Victims act; to amend
the public health law and the civil practice law and rules, in relation
to the responsibilities of nursing homes during pandemics; making an
appropriation therefor; and providing for the repeal of such provisions
upon expiration thereof
PURPOSE OR GENERAL IDEA OF BILL:
To establish the nursing home victims compensation fund, mandate respon-
sibilities for nursing homes during pandemics, and to extend the statute
of limitations for civil claims and causes of actions for personal inju-
ry or death of a nursing home resident due to COVID-19.
SUMMARY OF PROVISIONS:
Section 1 provides the short title, which is the "Justice for Nursing
Home Victims Act."
Section 2 amends the Public Health Law to establish the Nursing Home
Resident COVID-19 Compensation Program. It promulgates language to
establish the commission charged with administering the compensation
program, and the procedures for disbursing damages compensation to the
estates of individuals who are statutorily eligible to claim damages.
Eligible individuals include not only residents of nursing homes but
those temporarily admitted for subacute care and rehabilitation
purposes.
Section 3 amends the Public Health Law to designate responsibilities
for nursing homes during a pandemic, and explicitly holds nursing homes
liable for negligence resulting in wrongful death of residents. More-
over, it renders any public policy attempting to limit the liability of
nursing homes null-and-void.
Section 4 amends the state Finance Law to structure the funding mech-
anism for the Nursing Home Resident COVID-19 Compensation Program.
Section 5 amends the Civil Practice Law and Rules to enable the bring-
ing of civil claims or causes of actions related to personal injury or
death of a nursing home resident due to COVID-l9 for up to two years
after the effective date of this bill.
Section 6 appropriate $4 billion for the Nursing Home Resident COVID-
19 Compensation Program.
Section 7 sets the effective date as immediate and promulgates a
sunset and repeal clause to kick in on January 1, 2035.
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):
Click here to enter text.
JUSTIFICATION:
Over 15,000 residents of nursing homes in New York State have passed
away due to negligence by nursing home facilities. While legal immunity
for nursing homes to evade liability for damages residents have incurred
during the COVID-19 pandemic has since been repealed, justice for
victims of these facilities must still be realized.
This bill will attempt to redress the wrongdoings by the state govern-
ment in granting legal immunity to nursing homes to begin with, all at
the expense of the lives of thousands in this state and the rights they
were afforded to guarantee their health and safety in these facilities.
Equally important, this bill also puts forth regulations to disallow any
future attempts at constraining conditions for liability for nursing
homes, to ensure that injustices of this nature cannot happen on a
massive scale ever again in this state.
PRIOR LEGISLATIVE HISTORY:
This is a new bill.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
$4 billion for the nursing home victims compensation fund.
EFFECTIVE DATE:
Immediately upon passage and will sunset and be deemed repealed on Janu-
ary 1, 2035.
STATE OF NEW YORK
________________________________________________________________________
3582
2023-2024 Regular Sessions
IN ASSEMBLY
February 3, 2023
___________
Introduced by M. of A. KIM, BURGOS, SEAWRIGHT, JACOBSON, SIMON, GONZA-
LEZ-ROJAS, J. M. GIGLIO, DAVILA, DeSTEFANO -- read once and referred
to the Committee on Judiciary
AN ACT to amend the public health law and the state finance law, in
relation to enacting the Justice for Nursing Home Victims act; to
amend the public health law and the civil practice law and rules, in
relation to the responsibilities of nursing homes during pandemics;
making an appropriation therefor; 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. Short title. This act shall be known and may be cited as
2 the "Justice for Nursing Home Victims act".
3 § 2. The public health law is amended by adding a new section 2808-f
4 to read as follows:
5 § 2808-f. Nursing home resident COVID-19 compensation program. 1.
6 Definitions. The following terms as used in this section shall have the
7 following meanings, unless the context otherwise requires:
8 (a) "claimant" means an individual filing a claim for compensation
9 under this section and who is a statutory beneficiary of an eligible
10 nursing home resident.
11 (b) "collateral source" means all collateral sources, including life
12 insurance, pension funds, death benefit programs, and payments by feder-
13 al, state, or local governments related to injury or death as a result
14 of having COVID-19.
15 (c) "eligible nursing home resident" means a decedent who was a resi-
16 dent of a nursing home located in the state and COVID-19 caused or
17 contributed to such resident's death, as documented on such resident's
18 death certificate, or as certified by a physician, nurse practitioner,
19 or physician's assistant currently in good standing in any state or the
20 District of Columbia, or a physician, nurse practitioner, or physician's
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD06054-01-3
A. 3582 2
1 assistant authorized to practice in New York by executive order during
2 the declared COVID-19 state of emergency who determines with a reason-
3 able degree of medical certainty that COVID-19 caused or contributed to
4 the resident's death. Eligible nursing home resident shall include any
5 temporary resident of a nursing home who is receiving subacute rehabil-
6 itation care or temporary rehabilitation care.
7 (d) "the declared COVID-19 state of emergency" shall refer to the
8 period of the state of emergency declared by executive order two hundred
9 two on March seventh, two thousand twenty in response to the outbreak of
10 the novel coronavirus.
11 2. Compensation program. The department shall establish and maintain a
12 nursing home resident COVID-19 compensation program to provide full
13 compensation to any eligible nursing home resident or their statutory
14 beneficiary.
15 3. Administration. (a) The commissioner shall establish a committee to
16 administer the nursing home resident COVID-19 compensation program. Such
17 committee shall:
18 (i) administer the compensation program established pursuant to this
19 section;
20 (ii) promulgate all procedural and substantive rules for the adminis-
21 tration of this section; and
22 (iii) employ and supervise hearing officers and other administrative
23 personnel to perform the duties established pursuant to this section.
24 (b) The commissioner shall appoint a chairperson and no more than two
25 vice-chairpersons. The commissioner shall fix the annual salary of the
26 chairperson and shall be reimbursed for all expenses actually and neces-
27 sarily incurred by him or her in the performance of his or her duties
28 hereunder, within the amount made available by appropriation therefor.
29 The other members of the committee shall receive no compensation for
30 their services but shall be reimbursed for all expenses actually and
31 necessarily incurred by them in the performance of their duties here-
32 under within the amount made available by appropriation therefor.
33 (c) The committee shall establish a subcommittee, to be known as the
34 eligibility committee. The eligibility committee shall be composed of
35 seven members. Five members shall be appointed jointly by the temporary
36 president of the senate and the speaker of the assembly of which at
37 least two shall be mental health professionals and at least one shall be
38 an infectious disease clinician, and two members shall be appointed by
39 the governor. The eligibility committee, in consultation with the chair-
40 person, shall determine in accordance with subdivision four of this
41 section, the requirements needing to be met to be eligible for compen-
42 sation under this section and hear and decide appeals brought pursuant
43 to subdivision four of this section.
44 4. Determination of eligibility for compensation. (a) A claimant shall
45 file a claim for compensation under this section with the committee. The
46 claim shall be on the form developed pursuant to paragraph (b) of this
47 subdivision and shall state the factual basis for eligibility for
48 compensation and the amount of compensation sought.
49 (b) The committee shall develop a claim form that claimants shall use
50 when submitting claims under paragraph (a) of this subdivision. The
51 chairperson shall ensure that such form can be filed electronically, if
52 determined to be practicable. Such form developed shall request:
53 (i) information from the claimant confirming the eligible nursing home
54 resident's death as a result of contracting COVID-19 in a nursing home;
A. 3582 3
1 (ii) information regarding collateral sources of compensation the
2 claimant has received or is entitled to receive as a result of such
3 eligible nursing home resident's death; and
4 (iii) information from the claimant confirming they are a statutory
5 beneficiary of the deceased eligible nursing home resident.
6 (c) The committee shall review a claim submitted pursuant to this
7 subdivision and, with respect to a resident of the nursing home deter-
8 mined if such resident is an eligible individual, and the amount of
9 compensation to which the claimant is entitled to under this section.
10 (d) No later than one hundred twenty days after that date on which a
11 claim is filed under paragraph (a) of this subdivision, the chairperson
12 shall complete a review, make a determination, and provide written
13 notice to the claimant, with respect to the matters that were the
14 subject of the claim under review. Such a determination shall be final
15 and not subject to judicial review, except that a claimant may appeal
16 the chairperson's determination to the eligibility committee established
17 under paragraph (c) of subdivision three of this section.
18 (e) The amount of the compensation awarded under this section in the
19 case of a claimant shall be:
20 (i) a death benefit of two hundred fifty thousand dollars paid to the
21 estate of the eligible nursing home resident; and
22 (ii) an additional death benefit of one hundred thousand dollars paid
23 to the spouse and each dependent of the eligible nursing home resident.
24 (f) A claimant who files an appeal pursuant to paragraph (d) of this
25 subdivision shall have the right to be represented by an attorney; the
26 right to present evidence, including the presentation of witnesses and
27 documents; and any other due process rights determined appropriate by
28 the chairperson.
29 (g) The chairperson shall not include amounts for punitive damages in
30 any compensation paid under a claim pursuant to this section.
31 (h) The chairperson shall, with respect to each claimant, award the
32 full amount of the compensation determined pursuant to paragraph (e) of
33 this subdivision and shall not impose a cap on the total amount of such
34 compensation.
35 (i) A resident shall be determined to be an eligible nursing home
36 resident for purposes of this section if the chairperson determines that
37 such claimant, during the COVID-19 emergency period, was a resident of a
38 New York state nursing home facility who died as a result of having
39 COVID-19. A claimant shall be determined to be eligible to receive
40 compensation under this program if they are a representative acting on
41 behalf of a deceased eligible nursing home resident and are a statutory
42 beneficiary of such resident.
43 (j) No more than one claim shall be submitted pursuant to this section
44 with respect to compensation arising from the death of an eligible nurs-
45 ing home resident.
46 5. Payments to eligible individuals. (a) No later than twenty days
47 after the date on which a determination is made by the chairperson
48 regarding the amount of compensation due to a claimant under this
49 section, the commissioner of taxation and finance shall authorize
50 payment to such claimant of the amount determined from the nursing home
51 resident COVID-19 compensation fund established pursuant to section
52 ninety-eight-d of the state finance law.
53 6. Regulations. No later than ninety days after the effective date of
54 this section, the committee, in consultation with the commissioner,
55 shall promulgate rules and regulations to carry out the provisions of
56 this section, including rules and regulations with respect to:
A. 3582 4
1 (a) forms to be used in submitting claims under this section;
2 (b) the information to be included in such forms;
3 (c) procedures for hearing and the presentation of evidence;
4 (d) procedures to assist an individual in filing and pursuing claims
5 under this section; and
6 (e) other matters determined appropriate by the commissioner.
7 7. Right of subrogation. The state shall have the right of subrogation
8 with respect to any claim paid by the commissioner of taxation and
9 finance pursuant to this section.
10 § 3. Article 21 of the public health law is amended by adding a new
11 title 9 to read as follows:
12 TITLE IX
13 RESPONSIBILITIES OF NURSING HOME DURING PANDEMICS
14 Section 2187. Definitions.
15 2188. Responsibilities of nursing home during pandemics.
16 § 2187. Definitions. The following words and phrases when used in this
17 article shall have, unless the context clearly indicates otherwise, the
18 meanings given to them in this section:
19 1. "Public health emergency" means any declared state of emergency
20 made in response to an outbreak of an infectious disease and shall
21 include the novel coronavirus outbreak, COVID-19.
22 2. "Nursing home" shall have the same meaning as defined in section
23 twenty-eight hundred one of this chapter and shall include adult homes,
24 enriched housing programs, assisted living residences and residential
25 health care facilities as defined in such section.
26 3. "Resident" means a resident of a nursing home located in the state
27 and an infectious disease caused or contributed to such resident's
28 death, as documented on such resident's death certificate, or as certi-
29 fied by a physician, nurse practitioner, or physician's assistant
30 currently in good standing in any state or the District of Columbia, or
31 a physician, nurse practitioner, or physician's assistant authorized to
32 practice in New York by executive order during the declared public
33 health emergency who determines with a reasonable degree of medical
34 certainty that the infectious disease caused or contributed to the resi-
35 dent's death. Resident shall include any temporary resident of a nurs-
36 ing home who is receiving subacute rehabilitation care or temporary
37 rehabilitation care.
38 4. "Domestic partner" shall have the same meaning as contained in
39 section twenty-nine hundred sixty-one of this chapter.
40 § 2188. Responsibilities of nursing home during pandemics. 1.
41 Notwithstanding any law, rule, executive order, or regulation to the
42 contrary, during a public health emergency every nursing home shall:
43 (a) comply with all state and federal statutes and regulations, execu-
44 tive orders and centers for disease control and prevention guidelines
45 issued in response to such public health emergency; and
46 (b) follow all basic infection control protocols and guidelines relat-
47 ing to proper infection prevention and control.
48 2. In an action to recover damages from a nursing home for the wrong-
49 ful death of a resident during a public health emergency, proof that a
50 nursing home failed to comply with any of the following as they relate
51 to the public health emergency shall be presumed to be negligence and
52 the cause of the resident contracting the infectious disease:
53 (a) state or federal statutes or regulations;
54 (b) executive orders;
55 (c) centers for disease control and prevention guidelines; or
A. 3582 5
1 (d) basic infection control practices, relating to proper infection
2 prevention and control practices.
3 3. The presumption established by this article shall only be rebutted
4 by credible and reliable evidence which establishes that the resident's
5 own conduct was the sole proximate cause of the resident contracting
6 such disease.
7 4. In addition to any other lawful element of damages that may be
8 recoverable by reason of the death of the resident, the resident's
9 surviving grandparents, parents, siblings, spouse, domestic partner,
10 children and grandchildren shall be entitled to recover damages for
11 their respective non-pecuniary injuries, including: grief or anguish
12 caused by the resident's death, and for any disorder caused by such
13 grief or anguish, loss of love, society, protection, comfort, companion-
14 ship, and consortium resulting from the resident's death; and loss of
15 nurture, guidance, counsel, advice, training, and education resulting
16 from the resident's death. Any such claim for non-pecuniary injuries
17 shall be brought by the residents' personal representative.
18 5. Any agreement purporting to limit the liability of a nursing home
19 for damages or purporting to limit the remedies of the resident or those
20 seeking damages pursuant to this article is contrary to the public poli-
21 cy of this state and absolutely void.
22 6. Notwithstanding any provision of law to the contrary, all civil
23 claims or causes of action brought by any person for damages against a
24 nursing home for personal injuries or the death of a resident during the
25 novel coronavirus outbreak, COVID-19, including an action pursuant to
26 section twenty-eight hundred one-d of this chapter, may be commenced
27 within two years after the effective date of this title.
28 § 4. The state finance law is amended by adding a new section 98-d to
29 read as follows:
30 § 98-d. Nursing home resident COVID-19 compensation fund. 1. There is
31 hereby established in the joint custody of the commissioner of taxation
32 and finance and the comptroller a fund to be known as the "nursing home
33 resident COVID-19 compensation fund".
34 2. The sources of funds shall consist of all moneys collected there-
35 for, or moneys credited, appropriated or transferred thereto from the
36 general fund, any other fund or source pursuant to law or any other
37 moneys made available for the purposes of the fund. Nothing contained in
38 this section shall prevent the state from receiving grants, gifts or
39 bequests for the purposes of the fund as defined in this section and
40 depositing them into the fund according to law.
41 3. Moneys within the nursing home resident COVID-19 compensation fund
42 shall be made available to the commissioner of public health for the
43 administration of the nursing home resident COVID-19 compensation
44 program pursuant to section twenty-eight hundred eight-f of the public
45 health law.
46 4. Moneys shall be payable from the fund on the audit and warrant of
47 the comptroller on vouchers approved and certified by the commissioner
48 of public health.
49 § 5. The civil practice law and rules is amended by adding a new
50 section 217-b to read as follows:
51 § 217-b. Action to recover damages for personal injury or death of a
52 resident at a nursing home during the COVID-19 state of emergency. 1.
53 The following words and phrases when used in this section shall have,
54 unless the context clearly indicates otherwise, the meanings given to
55 them in this section:
A. 3582 6
1 (a) "Nursing home" shall have the same meaning as defined in section
2 twenty-eight hundred one of the public health law and shall include
3 adult homes, enriched housing programs, assisted living residences and
4 residential health care facilities as defined in such section.
5 (b) "Resident" means a decedent who was a resident of a nursing home
6 located in the state and COVID-19 caused or contributed to such resi-
7 dent's death, as documented on such resident's death certificate, or as
8 certified by a physician, nurse practitioner, or physician's assistant
9 currently in good standing in any state or the District of Columbia, or
10 a physician, nurse practitioner, or physician's assistant authorized to
11 practice in New York by executive order during the declared COVID-19
12 state of emergency who determines with a reasonable degree of medical
13 certainty that COVID-19 caused or contributed to the resident's death.
14 Resident shall include any temporary resident of a nursing home who is
15 receiving subacute rehabilitation care or temporary rehabilitation care.
16 (c) "The novel coronavirus pandemic (COVID-19)" shall refer to the
17 period of the state of emergency declared by executive order two hundred
18 two on March seventh, two thousand twenty in response to the outbreak of
19 the novel coronavirus.
20 2. Notwithstanding any provision of law to the contrary, all civil
21 claims or causes of action brought by any person for damages against a
22 nursing home for personal injuries or the death of a resident during
23 COVID-19, including an action pursuant to section twenty-eight hundred
24 one-d of the public health law, may be commenced within two years after
25 the effective date of this section.
26 § 6. The sum of four billion dollars ($4,000,000,000) is hereby appro-
27 priated to the nursing home resident COVID-19 compensation fund out of
28 any moneys in the state treasury in the general fund to the credit of
29 the state purposes account, not otherwise appropriated, and made imme-
30 diately available, for the purpose of carrying out the provisions of
31 this act. Such moneys shall be payable on the audit and warrant of the
32 comptroller on vouchers certified or approved by the commissioner of
33 health in the manner prescribed by law.
34 § 7. This act shall take effect immediately and shall expire and be
35 deemed repealed January 1, 2037.
