Extension of the Disaster Emergency, Consolidated Renewals and New Reporting Requirements
To support COVID‑19 response efforts, New York Governor Andrew Cuomo has issued more than 60 Executive Orders that temporarily waive state regulatory requirements (waivers) or impose new mandates (directives), especially with respect to the healthcare industry. These orders automatically expire after 30 days unless renewed (pursuant to N.Y. Executive Law § 29-a(2)(a)), requiring stakeholders to track initial expiration dates as well as any subsequent renewals, terminations or amendments.
This update reviews the state’s recent efforts to simplify and consolidate the cadence of renewal orders, and also describes the two most recent orders: Executive Orders 202.60 (issued September 4) and 202.61 (issued September 9), with a focus on the implications for healthcare stakeholders. In addition to extending the State Disaster Emergency declaration for COVID‑19, these orders include new directives with respect to COVID‑19 testing and reporting (especially with respect to schools) as well as paid sick leave for employees who travel out of state.
Manatt Health offers a subscription tracking resource for healthcare content in New York’s Executive Orders. In addition to receiving regular email updates summarizing new orders and flagging upcoming expiration dates, subscribers have access to an interactive tracking tool that lists waivers and directives along with details on affected provider types, expiration dates and amendments. For more information, please contact Meghan McNamara or Julian Polaris.
Simplifying the Cadence of Renewal Orders
After issuing dozens of Executive Orders in the early weeks of the COVID-19 crisis, the Governor began issuing consolidated renewal orders that extend multiple waivers and directives derived from multiple underlying Executive Orders. As previously discussed, this “batched” system reduced the number of renewal orders, but introduced significant complexity due to both the number of renewal batches and the fact that many orders fell into more than one batch.
The Governor has since consolidated most of the batches into a single omnibus renewal with Executive Orders 202.55 and 202.51 in early August. Now, the vast majority of key healthcare-related waivers and directives are renewed together on a single timeline, including most of the waivers regarding out-of-state practitioner licensure and alternative sites of care, as well as the directives regarding COVID-19 testing for nursing home personnel. Most recently, the omnibus renewal in Executive Order 202.60 extends these provisions through October 4.
Executive Order 202.60: State Disaster Extension, Posthumous Testing and Sick Leave Exemptions
The omnibus renewal in Executive Order 202.60 would not have been possible were it not for another crucial action: This order extended the State Disaster Emergency declaration for COVID‑19. The Governor originally declared a Disaster Emergency effective March 7, at the beginning of the state’s pandemic response, with a scheduled duration of six months. Were it not for the recent extension, the Disaster Emergency would have expired on September 7, along with the Governor’s authority to issue, amend and renew emergency waivers and directives.
Executive Order 202.60 also introduced new waivers and directives, including the following:
- Posthumous COVID‑19 and Flu Testing. The Order directs the New York State Department of Health (DOH) to issue regulations requiring posthumous testing for both COVID-19 and influenza in cases where (1) a coroner or medical examiner receives a body within 48 hours of death; (2) the coroner or medical examiner suspects COVID-19 or the flu as the cause of death; and (3) in the 14 days preceding death, the deceased did not receive a COVID-19 or flu test administered by a nursing home, hospital or hospice agency.
- Exemptions to Paid Sick Leave for Employees Traveling Out of State. Previously, Executive Order 202.45 provided that an employee is not eligible for paid sick leave if the employee travels to certain DOH-designated states after June 25 for reasons unrelated to work. Executive Order 202.60 modifies this provision by replacing the fixed June 25 date with a dynamic standard that responds to DOH activity: Moving forward, the sick leave exemption applies to any employee who travels for nonwork reasons to a state on the DOH list if the employee began traveling after the state was added to the DOH’s list.
Executive Order 202.61: Testing and Reporting Mandates, With a Focus on Schools
As a new academic year begins, Executive Order 202.61 demonstrates the Governor’s focus on COVID‑19 testing and rapid reporting, particularly with respect to potential outbreaks in schools. The order includes directives for the following healthcare and education actors:
- Healthcare Personnel
- Licensed healthcare professionals administering COVID-19 tests must report results to the DOH within three hours using the Electronic Clinical Laboratory Reporting System (ECLRS).
- Healthcare professionals who administer COVID-19 tests must ask for, and report to the ECLRS, the following information:
- The patient’s local address (and permanent address, if different)
- Whether the individual attends school and, if so, what school
- The individual’s place of employment, if any, including an indication of whether the individual works or volunteers in an elementary, secondary or postsecondary school
- All previously issued waivers or directives that authorized individuals to administer or process COVID-19 tests are modified as necessary to cover any Food and Drug Administration-approved method to test for COVID‑19 in conjunction with any other communicable disease.
- Clinical Laboratories may not process any specimen for a COVID-19 test unless the information described above (school of attendance or place of employment or volunteer work) has been transmitted to the lab and reported via the ECLRS. In addition, clinical labs, including “physician office laboratories” that offer point-of-care COVID-19 testing, must report the results of COVID‑19 and influenza tests within three hours.
- Local Health Departments must report to the DOH, on a daily basis, all COVID-19 testing and diagnoses for any individual who is a student, teacher, or other school employee or volunteer. This requirement applies to “both higher and lower education institutions and [school] districts.” The DOH is provided additional flexibility to require additional reporting elements.
- Educational Institutions must report to the DOH, on a daily basis, all COVID-19 testing and diagnoses among students, teaching staff, and any other employees or volunteers. The DOH is provided flexibility to require additional reporting elements. This requirement applies to schools, school districts and higher education institutions.1 Higher education institutions must report these numbers with respect to on-campus students and must notify the DOH if the institution reaches 100 positive cases.
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In recent weeks, New York State has successfully maintained low rates of COVID‑19 infections and deaths. The pandemic is far from over, however, as evidenced by Governor Cuomo’s decision to issue a one-month extension of the State Disaster Emergency declaration, as well as most of the healthcare waivers and directives issued to date. The state has gone to great lengths to ensure widespread access to COVID‑19 testing, and Executive Orders 202.60 and 202.61 build on that foundation by requiring rapid reporting of test results and other data that will facilitate early identification of outbreaks in schools.
Manatt Health’s subscription service tracking New York State Executive Orders offers timely updates and analysis to help healthcare stakeholders keep abreast of relevant waivers, directives, renewals and amendments. For more information, please contact Meghan McNamara or Julian Polaris.
1 The Executive Order expressly lists institutions such as “community and junior colleges, universities, graduate and professional schools, medical schools, and technical schools.”