Pardon my interruption of what is hopefully a relaxing weekend for you. I do apologize in advance both for the length of this e-mail and sending it to you over the weekend. However, I wanted to make sure you have all the information in front of you when are at work.
Friday evening, Governor Andrew Cuomo issued Executive Order 202.11, his twelfth Executive Order during this state of emergency. This Executive Order, like previously issued Executive Orders, modifies or suspends several New York statutes, laws, codes, rules and regulations as well as sets forth several directives, all of which are designed to combat the COVID-19 crisis.
Governor Cuomo has issued certain directives through Executive Order 202.11 designed to stem the COVID-19 virus throughout New York State. The directives not only address certain critical education and health care matters but also put some force behind Governor Cuomo’s previous directives to promote social distancing and enact capacity limitations.
Schools and Education
- All New York Schools shall remain closed until April 15, 2020, at which time the continued closure of New York State schools will be re-evaluated. This is a modification of the directive contained in Executive Order 202.4 that closed the schools until April 1, 20020. Schools will not be subject to a diminution in school aid due to the failure to meet the 180 day in session requirement. The schools must continue their respective plans for instruction, distribution and availability of meals and childcare.
- Any guidance issued by the New York State Health Department shall become effective immediately and shall supersede any prior conflicting guidance issued by this department and any guidance issued by any local health board, any local health department or any other political subdivision of the State related to health.
- The directives set forth in Executive Order 202.10 that placed restrictions on the dispensing of hydroxychloroquine or chloroquine have been modified so that now, no pharmacist can dispense these drugs except when written (a) as prescribed for an FDA-approved indication; (b) for an indication supported by one or more citations included or approved for inclusion in the compendia specified under certain sections of the US Code, (c) for patients in inpatient settings and acute settings; (d) for residents in a subacute part of skilled nursing facility or (e) as part of a study approved by an Institutional Review Board.
Enforcement of Occupancy and Worksite Limitations
- Executive Order 202.11 puts some teeth behind Governor Cuomo’s previous directives that seek to limit the size and scope of gatherings as well as to impose workforce reductions and limitations on businesses. Now, someone who violates an executive order that either (a) limits the operation of a type of facility or (b) limits the number of persons who may occupy any space, by having more than the number of persons allowed by such Executive Order, shall be deemed to be in violation of law, and in particular, but not limited to, a violation of the Uniform Code or other building code in effect in the jurisdiction in which the facility or space is located.
- Critically, in the event of this violation, any state, county or local police office authorized to enforce laws of the jurisdiction where the space or facility is located has the authority under Executive Order 202.11 to remove persons from such space or facility. Similarly, state, county or local code enforcement officials or fire marshals are authorized and permitted to issue appearance tickets, violation notices, an order to remedy such violation requiring immediate compliance and/or Do Not Occupy Order to any owner, operator or occupant of the violating facility or space. Finally, the directive in Executive Order 202.11 is not limiting in nature and any governmental unit or agency can take any other enforcement action necessary to ensure compliance with the occupancy directives or facility operation-relative directives of the previous Executive Orders.
SUPENDED OR MODIFIED LAWS
As in prior executive orders, Executive Order 202.11 also suspends or modifies certain laws, codes, rules and regulations to aid in New York’s efforts to combat the COVID-19 crisis. The Executive Order, by modifying or suspending the applicable laws, codes, rules and regulations, to the extent necessary:
Health Care Services and Medical Supplies
- Temporarily permits registered resident pharmacies and registered resident outsourcing facilities to compound certain alcohol-based hand sanitizer products, consistent with the Food and Drug Administration’s Policy for Temporary Compounding of Certain Alcohol-Based Hand Sanitizer Products During the Public Health Emergency (March 2002);
- Allows for the provision of certain services for individuals with intellectual or developmental disabilities to certified settings provided, however, that use of such settings shall require the approval of the commissioner of Office of People with Developmental Disabilities; and
- Relaxes the statute and regulations that limit the duration and amount of reimbursement for residential programs for victims of domestic violence to the per diem rate established by the Office of Children and Family Services.
- Permits abbreviated training and/or extension of recertification deadlines for direct support professionals employed in programs and facilities certified pursuant to Article 16 of the Mental Hygiene Law that are experiencing staff shortages;
- Permits pharmacy technicians and pharmacists to practice at an alternative location, including their home, as long as there is adequate security to prevent any Personal Health Information from being compromised;
- Permits graduates of registered professional nurse and licensed practical nurse licensure qualifying education programs registered by the State Education Department to be employed to practice nursing under the supervision of a registered professional nurse and with the endorsement of the employing hospital or nursing home for 180 days immediately following graduation;
- Allows SUNY to designate a state volunteer program under this paragraph for SUNY Upstate Hospital, SUNY Stony Brook University Hospital, and University Hospital SUNY Downstate, that is comprised of both compensated and uncompensated volunteers;
- Ensures that physicians assisting in the State’s response to COVID-19 in a facility owned or leased by SUNY and operated by SUNY are not excluded from the provisions of section 17 of the Public Officers Law for the medical services provided as part of the State’s response to COVID-19. By invoking this provision, New York State will defend and indemnify the physician under particular circumstances; and
- Allows midwives licensed and in current good standing in any state in the United States or in any province or territory of Canada, to practice in New York State without civil or criminal penalty related to lack of licensure.
Extensions, Modifications or Suspensions of Expiration Dates
- Extends the time for an individual and business to renew certain expired licenses or registrations to the 30th day following the expiration of Executive Order 202.11. Those licenses and registration included in this Executive Order cover the following businesses, professions and categories:
- Notary Publics
- Fire Alarm Systems
- Private Investigators, Bail Enforcement Agents and Watch, Guard, and Patrol Agents
- Security Guards
- Armored Car Carriers
- Nail Specialty, waxing, Natural Hair Styling, Esthetics and Cosmetology
- Automobile Brokers
- Pet Cemeteries and Pet Crematoriums
- Hearing Aid Dispensers
- Athlete Agents
- Document Destruction Carriers
- Professionals involved in professional combative sports (i.e. Mixed Martial Arts)
- Registration of Central Dispatch Facilities with the Black Car Fund
- Real Estate Appraisal Companies
- Real Estate Brokers and Salespersons
- Home Inspectors
- Apartment Information Vendors
- Ticket Resellers
- Suspends the statutory and regulatory time periods required by the Adirondack Park Agency to respond to requests for variances, permit modifications and otherwise process permit requests;
- Suspends the thirty-day requirement for submission of certificates of residence to community colleges in New York State, and to allow for electronic mail and mail by post applications for certificates of residence in every county for the duration of the COVID-19 emergency;
- Allows the Authorities Budget Office director to disregard such deadlines due to a failure by a state or local authority to meet the requirements proscribed within certain sections of the Public Authorities Law during the period when a properly executed declaration of a state of emergency has been issued;
- Allows manufacturers, retailers, installers, and mechanics currently certified by the Department of State to continue to renew their existing certifications notwithstanding the fact that continuing education requirements cannot be met due to the cancellation or postponement of courses during this COVID-19 emergency;
- Suspends the requirement of a public hearing to effectuate a proposed project, provided that the Urban Development Corporation provides an alternative opportunity for the public to comment on proposed project and publishes notice of that opportunity consistent with notice requirements in the Act;
- Provides that anyone who missed the deadline to complete an ethics training administered by JCOPE will not be held in violation of the Executive Law provided that such training is completed in 30 days of the Executive Order;
- Suspends the requirement for a response to co-op/condominium offering plans in 30 days, provided, however, the timeframe for such response may be extended up to 30 days; and
- Tolls for a 30-day period corresponding to the duration of Executive Order 202.11 the requirement of a vehicle inspection within a period of six months last preceding, only for those vehicles voluntarily placed out of service due to the COVID-19 outbreak.
Other Laws, Rules and Regulations
- Allows for the non-public opening of bids, provided, however, that, where practical, public entities shall record or live stream bid openings so that the public has the opportunity to view such bid openings;
- Disregards any income earned during the period of the COVID-19 emergency from the earnings limitation calculated under section 212 of New York’s Retirement and Social Security Law. This provision of New York Law provides that retired person can remain retired for pension purposes and still work in a public position provided that the person is paid no greater $30,000 per year. The suspension of this rule seems to contemplate that retired public employees are being called back to assist in the COVID-19 crisis and be paid more than $30,000;
- Freezes the requirement of vehicle annual safety inspections and at least biennial emissions inspections, so that vehicles may continue to be lawfully operated after the expiration of inspection certificates that were valid as of the date of the Executive Order but that expire hereafter; and
- Allows an electronic signature to be used by a person in lieu of a signature affixed by hand in executing documents and forms authorizing or accepting funeral services.