On May 10, 2020, Governor Andrew Cuomo issued Executive Order 202.30 invoking new powers from a law passed to combat the COVID-19 pandemic to temporarily suspend or modify laws necessary to assist or aid in coping with a declared State disaster emergency. On March 3, 2020, the Governor signed into law legislation that expanded his authority to temporarily suspend, modify, or issue directives in response to a declared State disaster emergency. That legislation also accompanied a $40 million appropriation to the Governor to respond to the COVID-19 pandemic.
Section 4656 of the Public Health Law and sections 415.26, 487.9 and 488.9 of Title 18 of the NYCRR were suspended and modified to require nursing homes, adult care facilities, adult homes, enriched housing programs and assisted living residences to test all personnel, employees, contract staff, medical staff, operators, and administrators for COVID-19. Facilities must test twice per week pursuant to a plan filed with the Department of Health by 5:00PM Wednesday, May 13, 2020.
Positive tests results must be reported to the Department by 5:00PM the day following receipt of the result. Nothing in the suspension or modification would prohibit the Department or the local health department of the facility from having unrestricted access to the facility when determined necessary to test all personnel for COVID-19.
The Governor directed that by no later than May 15, 2020 the operator and administrator of all nursing homes and adult care facilities must provide to the Department of Health a certification of compliance with applicable Executive Orders and directives by the Commissioner of Health.
The Commissioner of Health is authorized to suspend or revoke the operating certificate of any nursing home or adult care facility determined to have not complied with Executive Order 202.30 or any regulations or directives issued by the Commissioner of Health. Facilities determined to not be in compliance are subject to the appointment of a receiver upon 24 hours’ notice by the Commissioner to preserve life, health, and safety of the people of the State of New York. False statements in an attestation to the Department are punishable under Penal Code 210.45.
Facilities not in compliance with Executive Order 202.30 are subject to a penalty of $2,000 per violation per day as if it were a violation of section 12 of the Public Health Law. Subsequent violations will be for $10,000 per violation per day as if under section 12-b of the Public Health Law.
Personnel of a nursing home or adult care facility who refuse a COVID-19 test under a facilities’ plan will be considered to have outdated or incomplete health assessments and be prohibited from providing services until a test is performed.
The Governor directed article 28 general hospitals to not discharge a patient to a nursing home unless the nursing home operator or administrator has certified that they can properly care for such the patient. Article 28 general hospitals must perform a COVID-19 diagnostic test and obtain a negative result prior to discharging a patient to a nursing home.
Under the newly enacted law, the Governor has the power to suspend, modify, or issue directives during a declared emergency for 30 days which may be extended for an unlimited number of 30 day periods with consent of the legislature after each subsequent period. Unless the Governor elects to extend the suspension or directives, they will expire on June 9, 2020.