I hope and trust this e-mail continues to find you healthy and safe. Yesterday, Governor Andrew Cuomo issued Executive Order 202.25, his twenty sixth (26th) order during this state of emergency. This Executive Order modifies or suspends certain New York statutes, laws, codes, rules and regulations as well as sets forth certain directives, all of which are designed to address matters related to the COVID-19 crisis. This Executive Order is effective from April 29, 2020 through May 29, 2020. A copy of Executive Order 202.25 accompanies this e-mail.
Governor Cuomo has issued and extended certain directives in Executive Order 202.25 to stem the COVID-19 virus throughout New York State. The directives in this case focus on certain health care matters. In particular, Governor Cuomo utilizes Executive Order 202.25 to allow elective surgeries to resume in hospitals in many parts of the state.
- A directive under Executive Order 202.10 previously authorized the State Health Commissioner to direct all general hospitals, ambulatory surgery centers, office-based surgery practices and diagnostic and treatment centers to increase the number of beds available, including by canceling all elective surgeries and procedures. That directive is modified by Executive Order 202.25 only to the extent necessary to authorize general hospitals to perform elective surgeries and procedures so long as the following criteria are met:
- within a county, the total available hospital inpatient capacity is over thirty (30%) percent and the total available hospital ICU capacity is over thirty (30%) percent and the total change, from April 17, 2020 to April 27, 2020, in the number of hospitalized patients who are positive for COVID-19 is fewer than ten;
- for each hospital within county that has met the eligibility criteria, the available hospital inpatient capacity is over thirty (30%) percent and the available hospital ICU capacity is over thirty (30%) percent and the change, from April 17, 2020 to April 27, 2020, in the number of hospitalized patients who are positive for COVID-19 is fewer than ten.
- B.: According to Governor Cuomo, thirty-five counties have been approved to resume elective outpatient treatments based on this “30% Rule”. The counties now eligible are: Allegany, Broome, Cattaraugus, Chautauqua, Chenango, Delaware, Dutchess, Essex, Franklin, Fulton, Genesee, Herkimer, Jefferson, Lewis, Livingston, Madison, Monroe, Niagara, Oneida, Onondaga, Ontario, Orleans, Oswego, Putnam, Saratoga, Schoharie, Schuyler, St. Lawrence, Steuben, Sullivan, Tompkins, Ulster, Wayne, Wyoming and Yates.
- The directive in Executive Order 202.25 also authorizes the Health Commissioner to issue guidance with respect to the implementation of these criteria. General hospitals that are authorized to perform elective surgeries and procedures must report, at a minimum, the number and types of surgeries and procedures performed to the Department of Health, in a manner prescribed by the Commissioner.
- Critically, the elective surgery directive of Executive Order 202.25 also provides that general hospitals that do not meet the criteria to perform elective surgeries and procedures set forth above (i.e. the 30% rule) may seek a waiver from the prohibition, by submitting a plan that includes, at a minimum, their facility capacity, physical configuration, infectious disease protocols, and staffing capacity, including any applicable employment hardship information that includes any reductions in workforce, including furloughs, that have occurred due to the inability of such facility to perform elective surgeries or procedures, or any reductions in workforce, including furloughs, that may imminently occur due to the inability of such facility to perform elective surgeries or procedures, to the Department of Health, in a manner prescribed by the Commissioner. General hospitals shall not perform any elective surgery or procedure for patients until each such patient has tested negative for COVID-19 through an approved diagnostic test, and the hospital and patient have complied with the pre-operative and pre-procedure guidelines in a manner prescribed by the Commissioner.
Procedures Governing Baby Delivery
- As you may recall, Executive Orders 202.12 and 202.13 contained a directive related to support persons for birthing patients. Executive Order 202.25 now modifies the directive to require any article twenty-eight facility. (i.e. public hospital), shall, as a condition of licensure, allow any patient giving birth to have present with them: (1) a support person, who does not have symptoms of COVID-19, for the labor, delivery and also the remaining duration of the patient’s stay and/or (2) a doula, who does not have symptoms of COVID-19 for the labor, delivery, and the remaining duration of the patient’s stay. The presence of a support person and/or doula will be subject to exceptions for medical necessity determined by the Health Commissioner.
SUPENDED OR MODIFIED LAW
As in prior executive orders, Executive Order 202.25 also suspends or modifies certain laws, codes, rules and regulations to aid in New York’s efforts to combat the COVID-19 crisis through May 18, 2020. In this instance, the law modified or suspended under Executive Order 202.25 focuses on the birthing directive contained in the Executive Order. The Executive Order, by modifying or suspending the applicable laws, codes, rules and regulations, to the extent necessary:
Temporary Baby Delivery Facilities
- Allows for the approval and certification by the Health Commissioner of temporary dedicated birthing sites operated by currently-licensed birthing hospitals and currently-licensed birthing centers.
The copy of Executive Order 202.25 that accompanies this e-mail specifically identifies the applicable laws impacted under these provisions.