Gov. Andrew Cuomo’s controversial legislation granting nursing home CEOs legal immunity during the COVID-19 pandemic became a template this week for Washington Republicans, who are reportedly finalizing a national version of the liability shield for corporate executives.
Now, new campaign finance records show that the landmark provision in New York was inserted into the state’s budget by Democratic legislators as they were benefiting from a boost in campaign cash from the health care industry lobbying group that sculpted the provision. Those same New York legislators may now face a vote on whether to pass existing legislation to repeal the immunity language, or water down that repeal bill.
Meanwhile, the same health care industry lobbying group has been funneling millions to Democratic lawmakers in Washington, who could soon face votes on the federal version of the New York initiative.
A Doubling of Campaign Cash From the Health Care Group That Drafted the Immunity Bill
In the first half of 2020, the Greater New York Hospital Association (GNYHA) — which said it “drafted and aggressively advocated for” the immunity provision — funneled $260,000 to Democratic state lawmakers who control the New York legislature. That represents more than double the amount the group gave those committees in the same reporting period during the 2018 election cycle.
In all, GNYHA delivered more than $450,000 to Democratic and Republican party committees in New York since the beginning of the year. The Healthcare Association of New York State (HANYS) — another lobbying group whose members benefit from the immunity law — delivered an additional $69,000 to New York legislators in the same time period.
In an investigative report copublished in Jacobin and the Guardian, I previously broke the news that when Cuomo first proposed the immunity legislation, state party committees that he controls had already raked in more than $1 million from GNYHA. This new data from the first half of 2020 show that the largesse extended to the state legislators whose support Cuomo and GNYHA needed in order to pass the provision into law.
New York’s immunity provision, which passed in April, is one of the farthest-reaching in the nation. It not only shields frontline health care workers from lawsuits during the coronavirus outbreak — it extends such legal immunity to the executives, board members, and other corporate officials who operate health care facilities, and whose staffing and medical policy decisions govern entire nursing homes and hospitals.
New York assemblyman Ron Kim and twenty-two other Democrats are sponsoring legislation to repeal the immunity provisions. According to NY1, lawmakers have been briefed by the New York Senate leadership on that initiative in advance of their upcoming session, which begins this week. Kim told me that Democratic legislative leaders are working directly with GNYHA and HANYS to try to water down the repeal proposal.
“Instead of doing that, they should be working directly with families and workers who are suffering the most and in the most pain and trauma during this pandemic,” he said.
GOP Pushes to Expand New York Law to the Entire Country
In Washington, Senate Republicans are proposing to effectively expand New York’s immunity law to all businesses across the country in order to shield them from COVID-19–related lawsuits by workers and customers who may get sick as the economy reopens. A draft of the proposal says it “provides protection from federal labor and employment laws for employers.”
In April, Democrats criticized the idea of corporate immunity. However, since 2019, GNYHA has delivered $3.5 million to the super PACs that bankroll the election campaigns of House and Senate Democrats, according to campaign finance data compiled by PoliticalMoneyLine.com. That includes $250,000 in May 2020.
The health care industry is reportedly behind the new congressional bill, which could insert a version of the New York statute into federal law.
“Liability protections for health care providers are usually handled at the state level, and roughly two dozen states have scrambled to push special protection from lawsuits related to COVID-19,” reports Modern Healthcare, an industry trade publication. “But hospitals, nursing homes, and physicians are clamoring for a universal standard to ensure long-lasting, firm federal protections to underpin a widely varying patchwork of state measures.”
While the details of the GOP proposal are not yet finalized, the broad strokes suggest it would substantially weaken workplace safety laws.
“No matter how careless an employer or corporation may be, it will not be held liable until it has reached the murky and high threshold of gross negligence and only then if the gross negligence can be proven by clear and convincing evidence, a nearly impossible burden for injured persons to meet,” said University of Wyoming law professor Michael Duff, a former National Labor Relations Board investigator. “To top everything off, historically state law tort claims must be brought in federal court. The purpose of this maneuver is transparently to get cases before defendant-friendly, Republican-appointee judges who will expeditiously dispose of the cases.”