Rpld Art 30-D, amd 2801-d, Pub Health L; add 39-c, Judy L
Relates to the liability of residential health care facilities; repeals the emergency or disaster treatment protection act which protects health care facilities and health care professionals from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency; and requires courts to afford free speech protection to non-violent protesters.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A10621
SPONSOR: Rules (Kim) TITLE OF BILL:
An act to amend the public health law, in relation to the liability of
residential health care facilities; to amend the judiciary law, in
relation to requiring courts to afford protection of free speech to
non-violent protesters; and to repeal article 30-D of the public health
law relating to the emergency or disaster treatment protection act
PURPOSE OR GENERAL IDEA OF BILL:
To provide legal immunity to defendants in court arrested on nonviolent
charges for exercising their freedom of speech rights, and to repeal
legal immunity provided to corporate executives and stakeholders of
nursing homes
SUMMARY OF PROVISIONS:
Section 1 repeals Article 30-D of the public health law.
Section 2 amends subdivisions 1 and 2 of Section 2081-D of the public
health law to render residential health facilities liable for any
damages incurred or injuries inflicted onto a patient, as well as to
provide for the assessment of compensatory damages in such cases.
Section 3 guarantees legal immunity and free speech protections under
the First Amendment to the Constitution of the United States and Article
8 of the Constitution of the State of the New York to any defendant in a
criminal or civil action, so long as they did not cause harm to another
person or property, if they promote or facilitate the commission of the
following offenses: riot in the second degree, riot in the first degree,
inciting to riot, unlawful assembly, criminal anarchy, disorderly
conduct, or loitering.
Section 4 provides the effective date.
DIFFERENCE BETWEEN ORIGINAL AND AMENDED VERSION (IF APPLICABLE):
This is a new bill.
JUSTIFICATION:
In the aftermath of the murder of George Floyd in late May 2020,
protests across the United States and the State of New York erupted
against.police brutality and for racial justice. During the weeks that
followed, numerous instances occurred in which state and local law
enforcement officials arrested protesters en masse for nonviolent
offenses (such the violation of curfew that the Mayor of New York City
imposed from June 1 to June 7).
Simultaneously, with the passage of the fiscal year 2021 state budget,
nursing home executives and corporate stakeholders were given total
legal immunity irrespective of the sheer negligence and malpractice of
their actions, which have led to the deaths of thousands of elderly and
vulnerable New York residents.
This bill aims to correct the injustice of allowing corporate executives
to avoid accountability for their actions while brutally enacting state
violence and arrest on New Yorkers who are exercising their most funda-
mental rights to protest and demonstration.
PRIOR LEGISLATIVE HISTORY:
This is a new bill.
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:
None.
EFFECTIVE DATE:
Immediately upon passage.
STATE OF NEW YORK
________________________________________________________________________
10621
IN ASSEMBLY
June 10, 2020
___________
Introduced by COMMITTEE ON RULES -- (at request of 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 liability of
residential health care facilities; to amend the judiciary law, in
relation to requiring courts to afford protection of free speech to
non-violent protesters; and to repeal article 30-D of the public
health law relating to the emergency or disaster treatment protection
act
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Article 30-D of the public health law is REPEALED.
2 § 2. Subdivisions 1 and 2 of section 2801-d of the public health law,
3 subdivision 1 as amended by chapter 61 of the laws of 2009 and subdivi-
4 sion 2 as added by chapter 658 of the laws of 1975, are amended to read
5 as follows:
6 1. Any residential health care facility that deprives any patient of
7 said facility of any right or benefit, as hereinafter defined, shall be
8 liable to said patient for injuries suffered as a result of said depri-
9 vation, except as hereinafter provided. For purposes of this section a
10 "right or benefit" of a patient of a residential health care facility
11 shall mean any right or benefit created or established for the well-be-
12 ing of the patient by the terms of any contract, by any state statute,
13 code, rule or regulation or by any applicable federal statute, code,
14 rule or regulation, where noncompliance by said facility with such stat-
15 ute, code, rule or regulation has not been expressly authorized by the
16 appropriate governmental authority. [No person who pleads and proves, as
17 an affirmative defense, that the facility exercised all care reasonably
18 necessary to prevent and limit the deprivation and injury for which
19 liability is asserted shall be liable under this section.] For the
20 purposes of this section, "injury" shall include, but not be limited to,
21 physical harm to a patient; emotional harm to a patient; death of a
22 patient; and financial loss to a patient.
23 2. Upon a finding that a patient has been deprived of a right or bene-
24 fit and that said patient has been injured as a result of said depri-
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD16643-02-0
A. 10621 2
1 vation, [and unless there is a finding that the facility exercised all
2 care reasonably necessary to prevent and limit the deprivation and inju-
3 ry to the patient,] compensatory damages shall be assessed in an amount
4 sufficient to compensate such patient for such injury, but in no event
5 less than twenty-five percent of the daily per-patient rate of payment
6 established for the residential health care facility under section twen-
7 ty-eight hundred seven of this article or, in the case of a residential
8 health care facility not having such an established rate, the average
9 daily total charges per patient for said facility, for each day that
10 such injury exists. In addition, where the deprivation of any such right
11 or benefit is found to have been willful or in reckless disregard of the
12 lawful rights of the patient, punitive damages may be assessed.
13 § 3. The judiciary law is amended by adding a new section 39-c to read
14 as follows:
15 § 39-c. Free speech protections afforded to non-violent protesters. A
16 court of competent jurisdiction in New York state shall afford any
17 defendant in a criminal or civil action, immunity under the free speech
18 provisions of the first amendment of the United States Constitution, and
19 immunity under the free speech provisions of section eight of article
20 one of the New York state constitution, if such defendant, without caus-
21 ing any harm to any other person or property, commits, promotes the
22 commission of, and/or facilitates the commission of any offense under
23 section 240.05 of the penal law, riot in the second degree; section
24 240.06 of the penal law, riot in the first degree; section 240.08 of the
25 penal law, inciting to riot; section 240.10 of the penal law, unlawful
26 assembly; section 240.15 of the penal law, criminal anarchy; section
27 240.20 of the penal law, disorderly conduct; and/or section 240.35 of
28 the penal law, loitering.
29 § 4. This act shall take effect immediately.
