New York state recently passed a law that revokes the immunity of nursing homes from liability for decisions concerning the COVID-19 pandemic, according to a recent article. Over 15,000 residents and staff died in nursing homes, assisted living facilities, and other long-term care facilities in that state. New York had originally passed a bill granting immunity to nursing homes during the pandemic, preventing residents and their families from suing nursing homes in court for an injury or death based on negligence. Meanwhile, Maryland has considered increasing immunity for COVID-related injuries.
In January of this year, the state Senate introduced a bill that would expand immunity from claims based on COVID-19. As introduced, it would protect anyone who acts in compliance with certain regulations, statutes, and orders (including Maryland nursing homes and long-term care facilities). However, the bill would not protect people who act with gross negligence or intentional wrongdoing. The Senate bill remains pending, and a similar bill was introduced in the House. Proponents’ of New York’s law argued that the immunity protected nursing homes that made decisions even in bad faith.
Under Md. Code Ann. Pub. Safety section 14-3A-06, a healthcare provider is shielded from liability if the healthcare provider acts in good faith while there is a “catastrophic health emergency” proclamation. This law was in place before the COVID-19 pandemic. Even if Maryland’s proposed bill becomes law, facilities must follow state and federal guidelines to receive immunity. As of March 1, 2021, under a Maryland directive, licensed nursing homes must comply with the guidance on COVID-19 issued by the U.S. Centers for Disease Control and Prevention, U.S. Centers for Medicare and Medicaid Services, and the Maryland Department of Health. If a resident or staff member tests positive for COVID-19, all residents who have not tested positive for COVID-19 within the previous 90 days must be tested. Maryland has had more than 30,000 COVID-19 cases in nursing homes and over 3,500 deaths in nursing homes, group homes, and assisted living facilities.