State Updates
Governor Cuomo Discusses Pediatric COVID-19 Related Cases, Extension of Child Victims Act
Today (May 8th), Governor Cuomo held a press conference during which he announced that new hospitalizations and deaths related to COVID-19 continue to decline slowly, with 604 new hospitalizations and 216 deaths reported yesterday. The Governor provided updates on the Pediatric Multi-Inflammatory Syndrome Potentially Associated with COVID-19 syndrome, which is suspected in 73 pediatric cases across the State and resulted in one death yesterday. The New York State Department of Health continues to investigate the syndrome and associated deaths as per an advisory (available here) released earlier this week with information for providers on treatment and reporting protocols.
The Governor provided additional demographic details on the recent hospital survey investigating new COVID-19 cases, which showed that of the 21 counties with the most COVID-19 hospitalizations, 20 have greater than average black and/or Latino populations. The Governor said that the State is working to address the disproportionate effect of COVID-19 on minority communities, and more specific details on that strategy will be forthcoming over the next few days.
The Governor also announced a five-month extension of the Child Victims Act reporting window to January 14, 2021, which will address any issues in filing or arguing cases due to the COVID-19 pandemic.
Governor Cuomo Issues Executive Order 202.28
On May 7th, Governor Cuomo signed Executive Order 202.28 (available here) that extends all directives from previous Executive Orders related to the COVID-19 disaster emergency until June 6th, with the exception of the following regulations that will no longer be suspended or modified:
- Title 8 NYCRR:
- Paragraph (3) of Subdivision (a) of Section 29.2 regarding professional misconduct due to failure to maintain a record for each patient which accurately reflects the evaluation and treatment of the patient.
- Title 10 NYCRR:
- 58-1.11 (clinical laboratory reports and records);
- 400.9 (transfer and affiliation agreements);
- 400.11 (assessment of long-term care patients);
- 400.12 (level of care criteria);
- 403.3 (home care worker registry general requirements);
- 403.5 (responsibilities of home care services entities);
- 405 (hospital minimum standards);
- 405.10 (medical records);
- 405.9 (hospital admission/discharge policies), except to the limited extent that it would allow a practitioner to practice in a facility where they are not credentialed or have privileges, which will continue to be suspended;
- 415.11 (nursing home resident assessment and care planning);
- 415.22 (nursing home clinical records);
- 415.15 (nursing home medical services);
- 415.26 (nursing home organization and administration);
- 517 (provider audits);
- 620 (incorporations and transfers of proprietary businesses);
- 633.12 (OPWDD objection to services processes);
- 636-1 (OPWDD person-centered planning);
- 686.3 (OPWDD community residences); and
- 800.3 (EMS definitions) except to the extent that they could otherwise limit the scope of care by paramedics and prohibit the provision of medical service or extended service to COVID-19 or suspected COVID-19 patients.
- Mental Hygiene Law Sections:
- 41.34 (site selection of community residence facilities);
- 29.11 (Commissioner’s power to transfer and discharge patients); and
- 29.15 (discharge and conditional release of patients to the community).
- Public Health Law Sections 3002, 3002-a, 3003, and 3004-a to the extent it would have allowed the Commissioner to make determination without approval by a regional or state EMS board.
- Education Law:
- Subdivision (2) of Section 6527 and Section 6545, and Subdivision (1) of Section 6909, which ensured that all physicians, physician assistants, special assistants, nurse practitioners, licensed registered professional nurses, and licensed practical nurses are immune from civil liability during the course of providing medical services related to the COVID-19 outbreak, unless related to gross negligence; and
- Subdivision 32 of Section 6530 regarding failure to maintain a record for each patient which accurately reflects the evaluation and treatment of the patient.
- All codes related to construction, energy conservation, or other building code, and all state and local laws, ordinances, and regulations which would have otherwise been superseded, upon approval by the Commissioner of OPWDD, as applicable only for temporary changes to physical plant, bed capacities, and services provided at facilities under the Commissioner’s jurisdiction.
The Order also includes provisions allowing tenants facing financial hardship due to COVID-19 to use their security deposit to pay their rent while repaying the deposit over time, prohibits landlords from charging fees for late payments of rent, and forbids eviction proceedings for tenants who have been unable to pay their rent or mortgage due to COVID-19. Additionally, as previously announced by the Governor, the Order codifies school closures statewide for the remainder of the academic year.
Federal Update
CMS Issues New COVID-19 Regulatory Waivers
Today, CMS released new waivers in response to the COVID-19 outbreak creating more regulatory flexibilities for Medicare providers, retroactive to March 1st. The waivers will:
- Allow hospitals to establish skilled nursing facility (SNF) “swing beds” payable under the SNF prospective payment system;
- Waive the distance, bed, and service area inpatient percentage requirements for sole community hospitals;
- Waive the requirement that hospitals classified as Medicare-dependent, small rural hospitals have 100 or fewer beds, as well as attribute at least 60% of inpatient days or discharges to Medicare Part A beneficiaries, during cost reporting periods;
- Lower the minimum timeframe training requirements for paid feeding assistants working in long-term care facilities and SNFs and/or nursing facilities (NFs) to from 8 hours to 1 hour in length; and,
- Waive specific line safety code requirements for hospitals, inpatient hospice facilities, SNFs/NFs, and intermediate care facilities for individuals with intellectual disabilities, including the placement of alcohol based hand rub dispensers, fire drill requirements, and temporary construction requirements, which will allow said facilities to construct temporary walls and barriers between patients.
The summary of the most recently updated waivers is available here.