In recent years, lawmakers have been caught stealthily copying and pasting identical corporate-friendly provisions into law in states across the country. It appears that is now happening again as politically connected hospital and nursing home executives seek to shield themselves from civil litigation and government prosecution during the COVID pandemic.
A review of New York, Massachusetts and North Carolina’s controversial new liability shield provisions shows that nearly identical immunity language benefiting nursing home and hospital executives was inserted into law by elected officials whose political apparatuses received significant campaign contributions from the nursing home and hospital industries.
The spread of the corporate immunity provisions — which appear to have originated in New York Gov. Andrew Cuomo’s administration — comes amid a spate of coronavirus deaths that critics say was preventable and made worse by the liability shields. Senate Republican leader Mitch McConnell is currently pushing a broader, national version of immunity for corporate executives.
"Our legislation was the product of negotiations between the chamber and the legislature and while we always engage with stakeholders no one else wrote the final product -- which, again, was to help ensure we had the expanded health care apparatus needed to fight this pandemic,” said Cuomo’s spokesperson, Rich Azzopardi. “I have no information about how other states may have adopted this publicly available language."
Language Extends Liability Shield From Frontline Workers to Corporate Executives
To date, 19 states have enacted some form of immunity for the hospital and nursing home industries during the pandemic. In general, these new policies shield nurses, doctors and other frontline health care workers from liability when they are treating COVID patients.
However, New York, Massachusetts and North Carolina go further: unlike other states, the identical language added to their laws explicitly define health care providers as including “a health care facility administrator, executive, supervisor, board member, trustee” or other corporate managers.
That exact word-for-word clause appears in emergency legislation in all three states. In practice, it extends immunity to corporate officials who are not on the medical frontlines, but who are making life-and-death decisions across their companies.
“The new measures granting immunity to health care providers and professionals go well beyond protecting front-line workers from lawsuits -- many also provide immunity to administrators who make unreasonable and dangerous, even lethal, decisions,” said Syracuse University law professor Nina Kohn. “New York, Massachusetts, and North Carolina take protection for corporate owners and executives to a whole new level by explicitly granting immunity to board members, trustees, and directors.”
“This is extraordinary protection which is in no way in the public interest,” Kohn said. “These states are explicitly and unabashedly giving for-profit corporations and corporate executives the green light to make unreasonable decisions that put vulnerable people in imminent danger, and letting them know that they don’t have to worry about being held legally accountable for the avoidable human damage that results.”
New York Was Patient Zero In The Spread of The Immunity Provision
Democratic Gov. Andrew Cuomo signed the corporate immunity provision into New York law on April 3. Exactly two weeks later, Republican Gov. Charlie Baker signed the same corporate immunity provision into Massachusetts law. A week and a half after that, North Carolina Republican Senate leader Harry Brown introduced a bill that included the same corporate immunity provision -- and in early May, North Carolina’s Democratic Gov. Roy Cooper signed it into law.
New York appears to be patient zero in the spread of the corporate immunity provision.
There, the Greater New York Hospital Association openly boasted on its website that it “drafted and aggressively advocated” for the liability shield language (after the publication of TMI’s investigative report, GNYHA’s statement subsequently disappeared from the organization’s public website, though it is cached here).
The same day Cuomo signed the provision into law, the Florida Health Care Association -- which is the state affiliate of the national association that represents nursing homes -- forwarded the exact same executive immunity language to that state’s Republican governor in a letter pushing for a new liability shield law there.
In a similar letter, health care trade groups asked the Washington, D.C. city council to “protect the healthcare community by emulating states like New York and passing liability protections for healthcare workers” -- and also corporate executives.
Money Goes In, Immunity Comes Out
The immunity provisions came after a flood of hospital and nursing home industry cash into New York, Massachusetts and North Carolina elections. In all, those industries have donated more than $35 million to candidates and committees in those states since 2017, according to data compiled by the National Institute on Money In Politics.
In New York, TMI reported that Cuomo’s move to grant immunity to hospital and nursing home executives came after nursing home companies, hospital corporations and their lobbying firms poured more than $2.3 million into the governor’s political machine. In the last two election cycles, those industries also delivered more than $1.6 million to the committees that bankroll the campaigns of the Democratic state lawmakers who control New York’s legislature and who passed the budget legislation that included the immunity provision.
In Massachusetts, Baker -- a former health care industry CEO -- signed the immunity law after his campaigns collected more than $507,000 from donors in the hospital and nursing home industries. Baker’s election campaigns have also relied on big spending by the Republican Governors Association. In recent years, that group has raked in hundreds of thousands of dollars from the American Health Care Association, a national lobby for the nursing home industry; and from the U.S. Chamber of Commerce’s Institute for Legal Reform, a trade group that pushes to limit lawsuits against big businesses.
In North Carolina, the nursing home and hospital industry delivered more than $600,000 to state elected officials in the last election and the current election cycle.
Andrew Perez contributed reporting to this article.
This story was updated to include a statement from Cuomo’s spokesperson.