I hope you enjoyed the Mother’s Day weekend and trust this e-mail continues to find you and your families healthy and safe.
Sunday evening, Governor Andrew Cuomo issued his thirty-first Executive Order during this state of emergency. As with all previous Executive Orders, Executive Order 202.30 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. In this instance, the directives and suspensions and modifications of law contained in Executive Order 202.30 deal entirely with senior citizens and other vulnerable adults who live in nursing homes and other adult facilities. Executive Order 202.30 is effective from May 10, 2020 through June 9, 2020. A copy of Executive Order 202.30 can be found here.
- Pursuant to a rule issued by the New York State Health Department in late March, nursing homes have not been permitted to deny admission or readmission of a resident on the basis of a positive or suspected diagnosis of COVID-19. This rule has been criticized as forcing coronavirus carriers into nursing homes and similar care facilities despite the fact that senior citizens are among the most vulnerable to the illness. Executive Order 202.30 reverses this rule, providing in the directive that any article 28 general hospital shall not discharge a patient to a nursing home, without first performing a diagnostic test for COVID-19 and obtaining a negative result. Additionally, the directive mandates that any article 28 general hospital cannot discharge a patient to a nursing home, unless the nursing home operator or administrator has first certified that it is able to properly care for such patient.
- Executive Order 202.30 also mandates that both the operator and the administrator of all nursing homes and adult care facilities must provide to the Department of Health by no later than May 15, 2020 a certification of compliance with Executive Order 202.30 and directives of the Health Commissioner, and all other applicable Executive Orders and directives of the Health Commissioner. The directive further provides that:
- The Health Commissioner is authorized to suspend or revoke the operating certificate of any nursing home or adult care facility if it is determined that such facility has not complied with Executive Order 202.30, or any regulations or directives issued by the Health Commissioner, and if determined to not be in compliance, notwithstanding any law to the contrary the Health Commissioner may appoint a receiver to continue the operations on 24 hours’ notice to the current operator, in order to preserve the life, health and safety of the people of the State of New York. Any false statement in the attestation shall be punishable under the provisions of Penal Code §210.45;
- Any nursing home or adult care facility which does not comply with Executive Order 202.30 shall be subject to a penalty for non-compliance of $2,000 per violation per day, as if it were a violation of section 12 of New York State’s Public Health Law, and any subsequent violation shall be punishable as if it is a violation of section 12-b of the Public Health Law, with a penalty of $10,000 per violation per day; and
- Any personnel of a nursing home or adult care facility who refuse to be tested for COVID-19 pursuant to a plan submitted to the Health Department shall be considered to have outdated or incomplete health assessments and shall therefore be prohibited from providing services to such nursing home or adult care facility until such testing is performed.
SUPENDED OR MODIFIED LAWS, REGULATIONS AND CODES
As with all prior executive orders, Executive Order 202.30 also suspends or modifies certain laws, codes, rules and regulations to aid in New York’s efforts to combat the COVID-19 crisis this time through June 7, 2020. The laws and regulations modified or suspended under Executive Order 202.30 address testing for COVID-19 in the nursing homes and other adult home facilities. Executive Order 202.30, by modifying or suspending the applicable laws, codes, rules and regulations, to the extent necessary:
COVID-19 Testing in Nursing Homes
- Requires that the operator and administrator of all nursing homes and all adult care facilities, including all adult homes, enriched housing programs and assisted living residences to test or make arrangements for the testing of all personnel, including all employees, contract staff, medical staff, operators and administrators, for COVID-19, twice per week, pursuant to a plan developed by the facility administrator and filed with the Department of Health no later than 5:00 p.m. on Wednesday, May 13, 2020.
- Requires that any positive test result be reported to the Health Department by 5:00 p.m. of the day following receipt of such test result, in a manner determined by the Health Commissioner.
- Provides that nothing shall prohibit staff of the New York State Health Department, or the local health department in the jurisdiction of the nursing home or adult care facility, from having unrestricted access to the facility where such access is determined necessary in the discretion of the Health Commissioner for purposes of testing all personnel for COVID-19, and provided further that in such circumstances the operator and administrator shall cooperate fully with New York State Health Department and local health department staff to facilitate such testing.