On October 7, 2022, the Appellate Division of the Supreme Court, Fourth Judicial Department, held that the New York State Legislature’s repeal of the Emergency or Disaster Treatment Protection Act (“EDTPA”) does not apply retroactively. See Ruth v. Elderwood at Amherst (2022 N.Y. Slip Op. 05637 [4th Dep’t Oct. 7, 2022]).

EDTPA was enacted by the Legislature in April 2020, with retroactive effect to March 7, 2020, and provided qualified immunity from civil and criminal liability to health care professionals and facilities for harm or damages alleged to have been sustained as a result of an act or omission in the course of arranging for or providing health care services in certain circumstances related to the COVID-19 pandemic. Specifically, (1) the services must have been arranged for or provided pursuant to a COVID-19 emergency rule or otherwise in accordance with applicable law; (2) the act or omission was impacted by decisions or activities that were in response to or as a result of the COVID-19 outbreak; and (3) the services must have been arranged for or provided in good faith. Qualified immunity did not apply if the acts or omissions at issue constituted willful or intentional criminal misconduct, gross negligence, reckless misconduct, or intentional infliction of harm.

In August 2020, the Legislature amended EDTPA to limit certain aspects of the immunity. The amendment narrowed EDTPA’s liability protections to apply only when a heath care professional or facility provided direct care related to the diagnosis or treatment of COVID-19 and the care was impacted by COVID-19. The Legislature provided that the amendment would take effect immediately and would only apply to acts or omissions which occurred on or after the effective date of the amendment.

On April 6, 2021, EDTPA was repealed. The legislation provided that it took effect immediately. It did not, however, indicate whether the repeal had retroactive effect.

The Appellate Division, in answering that question, found that applying the repeal of the immunity conferred by EDTPA to the past acts of the defendant facilities and health care professionals would expand the scope of their potential liability significantly for past conduct, and there was thus a presumption against retroactive effect. The Court found the text of the repeal legislation did not contain an express statement requiring retroactive application (as the legislation enacting EDTPA did), the memoranda submitted by the legislators who introduced the legislation was inconclusive on the issue of retroactivity, and the legislative floor debates supported a conclusion that the Legislature intended the repeal to apply prospectively only. Accordingly, the Appellate Division held that “the repeal of EDTPA does not apply retroactively.”

This well-reasoned decision confirms that health care professionals and facilities retain the protections provided to them under EDTPA while it was in effect, notwithstanding its later repeal. Defense counsel should continue to assert qualified immunity pursuant to EDTPA as a defense where the allegations relate to care and treatment provided between March 7, 2020, and April 6, 2021.