I hope this e-mail finds you well. I apologize in advance for the length of this e-mail, but I wanted to make sure you have all the information in front of you.
Last evening, Governor Cuomo issued Executive Order 202.10, his eleventh order during this state of emergency. This Executive Order, like previous Executive Orders issued by Governor Cuomo, 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.
The directives of Executive Order 202.10 seek to advance Governor Cuomo’s goal of increasing the number of beds available to COVID-19 patients by 50% as well as increase the number of health care providers and professionals available to assist in this crisis. To that end, the Executive Order provides that:
- The Commissioner of Health is authorized to direct, and shall so direct, all general hospitals, ambulatory surgery centers, office-based surgery practices and diagnostic and treatment centers to increase the number of beds available to patients, including by canceling all elective surgeries and procedures, as the Commissioner of Health shall define. General hospitals shall comply with such order by submitting COVID-19 Plans to the New York State Department of Health (NYSDOH), on a schedule to be determined by NYSDOH, to accomplish this purpose;
- The Commissioner of Health is authorized to suspend or revoke the operating certificate of any general hospital should they be unable to meet the requirements of the necessary capacity directives; and notwithstanding any law to the contrary the 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 healthcare facility is authorized to allow students, in programs to become licensed in New York State to practice a healthcare professional, to volunteer at the healthcare facility for educational credit as if the student had secured a placement under a clinical affiliation agreement, without entering into any such clinical affiliation agreement; and
- Any licensed health insurance company shall deliver to the Superintendent, no later than March 24, 2020 a list of all persons who have a professional licensure or degree, whether physician’s assistant, medical doctor, licensed registered nurse, licensed nurse practitioner or licensed practical nurse, and whether or not the person has a currently valid, or recently (within past five years) expired license in the state of New York. The Department of Financial Services shall poll such individuals to determine whether or not such professionals would serve in the COVID-19 response effort.
Executive Order 202.10 also contains two additional directives designed to stem the COVID-19 virus as well as ensure that any possible treatment options remain available to all New Yorkers. Executive Order 202.10 declares that from March 23, 2020 through April 22, 2020, pharmacists shall not dispense hydroxychloroquine or chloroquine except when (a) written as prescribed for an FDA-approved indication or (b) as part of a state approved clinical trial related to COVID-19 for a patient who has tested positive for COVID-19, with such test result documented as part of the prescription. Further, no other experimental or prophylactic use shall be permitted, and any permitted prescription is limited to one fourteen day prescription with no refills. This suggests there is concern that there will be run on these drugs, much like the apparent run on toilet paper clearly concerned that there will be a run
The final directive is the most consequential, and probably, the most impactful, for New York residents. Executive Order 202.10 directs that “non-essential gatherings of individuals of any size for any reason (e.g. such as parties, celebrations or other social events), are cancelled or postponed.” This directive, however, does not provide any further specifics and one could expect questions and requests for clarifications from the Executive Branch.
SUPENDED OR MODIFIED LAWS
Executive Order 202.10 also suspends or modifies certain laws, codes, rules and regulations to ensure that New York State has adequate bed capacity, services, supplies and providers to treat COVID-19 patients, as well as patients suffering from other illnesses and eliminate obstacles to the provision of supplies and medical treatment at this time. The Executive Order, by modifying or suspending the applicable laws, codes, rules and regulations will, to the extent necessary:
Bed Capacity, Medical Supplies and Services
- Permit and require general hospitals to take all measures necessary to increase the number of beds available to patients, in accordance with the directives set forth in Executive Order;
- Modify the definition of “emergency medical services” to include emergency, non-emergency and low acuity medical assistance;
- Eliminate any restrictions on an approved ambulance services or providers operating outside of the primary territory listed on such ambulance service’s operating certificate with prior approval by the Department of Health;
- Permit the Commissioner of Health to issue provisional emergency medical services provider certifications to qualified individuals with modified certification periods as approved;
- Allow emergency medical services to transport patients to locations other than healthcare facilities with prior approval by Department of Health;
- Allow any emergency medical treatment protocol development or modification to occur solely with the approval of the Commissioner of Health;
- Allow a hospice residence to designate any number of beds within such facility as dually certified inpatient beds;
- Allow laboratories holding a Clinical Laboratory Improvement Acts (CLIA) certificate and meeting the CLIA quality standards described in 42 CFR Subparts H, J, K and M, to perform testing for the detection of SARS-CoV-2 in specimens collected from individuals suspected of suffering from a COVID-19 infection; and
- Permit the Commissioner of Health to designate a health care facility as a trauma center, or extend or modify the period for which a health care facility may be designated as a trauma center, or modify the review team for assessment of trauma center.
- Provide that all physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses and licensed practical nurses shall be immune from civil liability for any injury or death alleged to have been sustained directly as a result of an act or omission by such medical professional in the course of providing medical services in support of the State’s response to the COVID-19 outbreak, unless it is established that such injury or death was caused by the gross negligence of such medical professional;
- Permit an advanced practice registered nurse with a doctorate or master’s degree specializing in the administration of anesthesia administering anesthesia in a general hospital or free-standing ambulatory surgery center without the supervision of a qualified physician in these health care settings;
- Permit a physician assistant to provide medical services appropriate to their education, training and experience without oversight from a supervising physician without civil or criminal penalty related to a lack of oversight by a supervising physician;
- Permit a specialist assistant to provide medical services appropriate to their education, training and experience without oversight from a supervising physician without civil or criminal penalty related to a lack of oversight by a supervising physician;
- Permit a nurse practitioner to provide medical services appropriate to their education, training and experience, without a written practice agreement, or collaborative relationship with a physician, without civil or criminal penalty related to a lack of written practice agreement, or collaborative relationship, with a physician;|
- Allow general hospitals to use qualified volunteers or personnel affiliated with different general hospitals, subject to the terms and conditions established by the Commissioner of Health;
- Permit radiologic technologists licensed and in current good standing in New York State but not registered in New York State to practice in New York State without civil or criminal penalty related to lack of registration;
- Permit radiologic technologists licensed and in current good standing in any state in the United State to practice in New York State without civil or criminal penalty related to lack of licensure;
- Allow respiratory therapists licensed and in current good standing in any state in the United States to practice in New York State without civil or criminal penalty related to lack of licensure;
- Allow physician’s assistants licensed and in current good standing in New York State but not registered in New York State to practice in New York State without civil or criminal penalty related to lack of registration;
- Allow registered professional nurses, licensed practical nurses and nurse practitioners licensed and in current good standing in New York State but not registered in New York State to practice in New York State without civil or criminal penalty related to lack of registration;
- Permit registered nurses to order the collection of throat or nasopharyngeal swab specimens from individuals suspected of being infected by COVID-19, for purposes of testing;
- Permit a certified or registered pharmacy technician, under the direct personal supervision of a licensed pharmacist, to assist such licensed pharmacist, as directed, in compounding, preparing, labeling, or dispensing of drugs used to fill valid prescriptions or medication orders for a home infusion provider licensed as a pharmacy in New York, compliant with the United States Pharmacopeia General Chapter 797 standards for Pharmaceutical Compounding – sterile preparations, and providing home infusion services through a home care agency licensed under Article 36 of the Public Health Law;
- Define “medical control” to include emergency and non-emergency direction to all emergency medical services personnel by a regional or state medical control center and to permit emergency medical services personnel to operate under the advice and direction of a nurse practitioner, physician assistant, or paramedic, provided that such medical professional is providing care under the supervision of a physician and pursuant to a plan approved by the Department of Health;
- Any healthcare facility is authorized to allow students, in programs to become licensed in New York State to practice as a healthcare professional, to volunteer at the healthcare facility for educational credit as if the student had secured a placement under a clinical affiliation agreement, without entering into any such clinical affiliation agreement;
- Notwithstanding any law or regulation to the contrary, health care providers are relieved of recordkeeping requirements to the extent necessary for health care providers to perform tasks as may be necessary to respond to the COVID-19 outbreak, including, but not limited to, requirements to maintain medical records that accurately reflect the evaluation and treatment of patients, or requirements to assign diagnostic codes or to create or maintain other records for billing purposes. Any person acting reasonably and in good faith under this provision shall be afforded absolute immunity from liability for any failure to comply with any recordkeeping requirement. In order to protect from liability any person acting reasonably and in good faith under this provision, requirements to maintain medical records under Subdivision 32 of Section 6530 of the Education Law, Paragraph (3) of Subdivision (a) of Section 29.2 of Title 8 of the NYCRR, and Sections 58-1.11, 405.10, and 415.22 of Title 10 of the NYCRR, or any other such laws or regulations are suspended or modified to the extent necessary for health care providers to perform tasks as may be necessary to respond to the COVID-19 outbreak;
- Extend all existing emergency medical services provider certifications for one year; to permit the Commissioner of Health to modify the examination or recertification requirements for emergency medical services provider certifications; to suspend or modify, at the discretion of the Commissioner of Health, any requirements for the recertification of previously certified emergency medical services providers; and, at the discretion of the Commissioner of Health, develop a process determined by the Department of Health, to permit any emergency medical services provider certified or licensed by another State to provide emergency medical services within New York state; at the discretion of the Commissioner of Health, to suspend or modify equipment or vehicle requirements in order to ensure sustainability of EMS operations;
- Remove limits on working hours for physicians and postgraduate trainees;
- Allow graduates of foreign medical schools having at least one year of graduate medical education to provide patient care in hospitals, is modified so as to allow such graduates without licenses to provide patient care in hospitals if they have completed at least one year of graduate medical education; and
- Permit general hospitals affected by the disaster emergency to maintain adequate staffing.