Assembly Bill A9077

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   9077
 
                           I N  A S S E M B L Y
 
                             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:

   Section 1. Article 21 of the public health law is amended by adding  a
 new title 9 to read as follows:
                                 TITLE IX
             RESPONSIBILITIES OF NURSING HOME DURING PANDEMICS
 SECTION 2187. DEFINITIONS.
         2188. RESPONSIBILITIES OF NURSING HOME DURING PANDEMICS.
   § 2187. DEFINITIONS. THE FOLLOWING WORDS AND PHRASES WHEN USED IN THIS
 ARTICLE  SHALL HAVE, UNLESS THE CONTEXT CLEARLY INDICATES OTHERWISE, THE
 MEANINGS GIVEN TO THEM IN THIS SECTION:
   1. "PUBLIC HEALTH EMERGENCY" MEANS ANY  DECLARED  STATE  OF  EMERGENCY
 MADE  IN  RESPONSE  TO  AN  OUTBREAK  OF AN INFECTIOUS DISEASE AND SHALL
 INCLUDE THE NOVEL CORONAVIRUS OUTBREAK, COVID-19.
   2. "NURSING HOME" SHALL HAVE THE SAME MEANING AS  DEFINED  IN  SECTION
 TWENTY-EIGHT  HUNDRED ONE OF THIS CHAPTER AND SHALL INCLUDE ADULT HOMES,
 ENRICHED HOUSING PROGRAMS, ASSISTED LIVING  RESIDENCES  AND  RESIDENTIAL
 HEALTH CARE FACILITIES AS DEFINED IN SUCH SECTION.
   3.  "RESIDENT" MEANS A RESIDENT OF A NURSING HOME LOCATED IN THE STATE
 AND AN INFECTIOUS DISEASE  CAUSED  OR  CONTRIBUTED  TO  SUCH  RESIDENT'S
 DEATH,  AS DOCUMENTED ON SUCH RESIDENT'S DEATH CERTIFICATE, OR AS CERTI-
 FIED BY  A  PHYSICIAN,  NURSE  PRACTITIONER,  OR  PHYSICIAN'S  ASSISTANT
 CURRENTLY  IN GOOD STANDING IN ANY STATE OR THE DISTRICT OF COLUMBIA, OR
 A PHYSICIAN, NURSE PRACTITIONER, OR PHYSICIAN'S ASSISTANT AUTHORIZED  TO
 PRACTICE  IN  NEW  YORK  BY  EXECUTIVE  ORDER DURING THE DECLARED PUBLIC
 HEALTH EMERGENCY WHO DETERMINES WITH  A  REASONABLE  DEGREE  OF  MEDICAL
 CERTAINTY THAT THE INFECTIOUS DISEASE CAUSED OR CONTRIBUTED TO THE RESI-
 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
 
 ING HOME WHO IS RECEIVING  SUBACUTE  REHABILITATION  CARE  OR  TEMPORARY
 REHABILITATION CARE.
   4.  "DOMESTIC  PARTNER"  SHALL  HAVE  THE SAME MEANING AS CONTAINED IN
 SECTION TWENTY-NINE HUNDRED SIXTY-ONE OF THIS CHAPTER.
   §  2188.  RESPONSIBILITIES  OF  NURSING  HOME  DURING  PANDEMICS.   1.
 NOTWITHSTANDING  ANY  LAW,  RULE,  EXECUTIVE ORDER, OR REGULATION TO THE
 CONTRARY, DURING A PUBLIC HEALTH EMERGENCY EVERY NURSING HOME SHALL:
   (A) COMPLY WITH ALL STATE AND FEDERAL STATUTES AND REGULATIONS, EXECU-
 TIVE ORDERS AND CENTERS FOR DISEASE CONTROL  AND  PREVENTION  GUIDELINES
 ISSUED IN RESPONSE TO SUCH PUBLIC HEALTH EMERGENCY; AND
   (B) FOLLOW ALL BASIC INFECTION CONTROL PROTOCOLS AND GUIDELINES RELAT-
 ING TO PROPER INFECTION PREVENTION AND CONTROL.
   2.  IN AN ACTION TO RECOVER DAMAGES FROM A NURSING HOME FOR THE WRONG-
 FUL DEATH OF A RESIDENT DURING A PUBLIC HEALTH EMERGENCY, PROOF  THAT  A
 NURSING  HOME  FAILED TO COMPLY WITH ANY OF THE FOLLOWING AS THEY RELATE
 TO THE PUBLIC HEALTH EMERGENCY SHALL BE PRESUMED TO  BE  NEGLIGENCE  AND
 THE CAUSE OF THE RESIDENT CONTRACTING THE INFECTIOUS DISEASE:
   (A) STATE OR FEDERAL STATUTES OR REGULATIONS;
   (B) EXECUTIVE ORDERS;
   (C) CENTERS FOR DISEASE CONTROL AND PREVENTION GUIDELINES; OR
   (D)  BASIC  INFECTION  CONTROL PRACTICES, RELATING TO PROPER INFECTION
 PREVENTION AND CONTROL PRACTICES.
   3. THE PRESUMPTION ESTABLISHED BY THIS ARTICLE SHALL ONLY BE  REBUTTED
 BY  CREDIBLE AND RELIABLE EVIDENCE WHICH ESTABLISHES THAT THE RESIDENT'S
 OWN CONDUCT WAS THE SOLE PROXIMATE CAUSE  OF  THE  RESIDENT  CONTRACTING
 SUCH DISEASE.
   4.  IN  ADDITION  TO  ANY  OTHER LAWFUL ELEMENT OF DAMAGES THAT MAY BE
 RECOVERABLE BY REASON OF THE  DEATH  OF  THE  RESIDENT,  THE  RESIDENT'S
 SURVIVING  GRANDPARENTS,  PARENTS,  SIBLINGS,  SPOUSE, DOMESTIC PARTNER,
 CHILDREN AND GRANDCHILDREN SHALL BE  ENTITLED  TO  RECOVER  DAMAGES  FOR
 THEIR  RESPECTIVE  NON-PECUNIARY  INJURIES,  INCLUDING: GRIEF OR ANGUISH
 CAUSED BY THE RESIDENT'S DEATH, AND FOR  ANY  DISORDER  CAUSED  BY  SUCH
 GRIEF OR ANGUISH, LOSS OF LOVE, SOCIETY, PROTECTION, COMFORT, COMPANION-
 SHIP,  AND  CONSORTIUM  RESULTING FROM THE RESIDENT'S DEATH; AND LOSS OF
 NURTURE, GUIDANCE, COUNSEL, ADVICE, TRAINING,  AND  EDUCATION  RESULTING
 FROM  THE  RESIDENT'S  DEATH.  ANY SUCH CLAIM FOR NON-PECUNIARY INJURIES
 SHALL BE BROUGHT BY THE RESIDENTS' PERSONAL REPRESENTATIVE.
   5. ANY AGREEMENT PURPORTING TO LIMIT THE LIABILITY OF A  NURSING  HOME
 FOR DAMAGES OR PURPORTING TO LIMIT THE REMEDIES OF THE RESIDENT OR THOSE
 SEEKING DAMAGES PURSUANT TO THIS ARTICLE IS CONTRARY TO THE PUBLIC POLI-
 CY OF THIS STATE AND ABSOLUTELY VOID.
   6.  NOTWITHSTANDING  ANY  PROVISION  OF LAW TO THE CONTRARY, ALL CIVIL
 CLAIMS OR CAUSES OF ACTION BROUGHT BY ANY PERSON FOR DAMAGES  AGAINST  A
 NURSING HOME FOR PERSONAL INJURIES OR THE DEATH OF A RESIDENT DURING THE
 NOVEL  CORONAVIRUS  OUTBREAK,  COVID-19, INCLUDING AN ACTION PURSUANT TO
 SECTION TWENTY-EIGHT HUNDRED ONE-D OF THIS  CHAPTER,  MAY  BE  COMMENCED
 WITHIN TWO YEARS AFTER THE EFFECTIVE DATE OF THIS TITLE.
   §  2.  This  act shall take effect immediately and shall expire and be
 deemed repealed January 1, 2035.