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Certain Nursing Home Requirements Waived Under Executive Orders Back in Effect

Governor Cuomo issued Executive Order (EO) 202.28 on May 7th. This order continues for 30 days (i.e., through June 6th) suspension and modification of various laws and regulations authorized under EOs 202 through 202.14, except for the requirements identified below. The following requirements applicable to nursing homes are no longer suspended and are fully effective again as of May 8, 2020:

  • Rapid Discharge and Transfer Between Hospitals and Nursing Homes: EO 202.1, issued March 12th, temporarily modified 10 NYCRR § 400.9 and § 405.9 to allow general hospitals and nursing homes licensed under Article 28 of the Public Health Law that are treating patients during the disaster emergency to rapidly discharge, transfer, or receive such patients, as authorized by the Commissioner of Health, provided such facilities take all reasonable measures to protect the health and safety of these patients, including safe transfer and discharge practices, and to comply with hospital Emergency Medical Treatment and Active Labor Act (EMTALA) requirements. NOTE: The Centers for Medicare and Medicaid Services (CMS) has temporarily waived the discharge planning requirement in 42 CFR §483.21(c)(1)(viii), which requires nursing homes to assist residents and their representatives in selecting another nursing home or other post-acute care provider using quality data.
  • PRI Assessments: EO 202, issued on March 7th, temporarily modified 10 NYCRR § 400.11 to allow hospitals and nursing homes receiving patients as a result of the disaster emergency to complete patient review instruments (PRIs) as soon as practicable.
  • Facilitate Transfers: EO 202.5, issued March 18th, temporarily modified 10 NYCRR § 400.12 to allow patients affected by the disaster emergency to be transferred to receiving Article 28 facilities as authorized by the Commissioner.
  • Nursing Home Comprehensive Assessment Flexibility: EO 202.5, issued March 18th, temporarily modified 10 NYCRR § 415.11 to allow nursing homes receiving individuals affected by the disaster emergency to perform comprehensive assessments of those residents temporarily evacuated to such nursing homes as soon as practicable following admission or to forego such assessments for individuals returned to facilities from which they were evacuated. NOTE: CMS has temporarily waived the federal regulations at 42 CFR §483.20 to provide relief to nursing homes on the time frame requirements for Minimum Data Set (MDS) assessments and transmission. We are seeking clarity as to whether reinstatement of the State’s requirements has any bearing on the federal blanket waiver.
  • Nursing Home Physician Admission Order Flexibility: EO 202.5, issued March 18th, temporarily modified 10 NYCRR § 415.15 to allow nursing homes receiving individuals affected by the disaster emergency to obtain physician approvals for admission as soon as practicable following admission or to forego such approval for individuals returned to facilities from which they were evacuated.
  • Nursing Home Admission Procedures: EO 202.5, issued March 18th, temporarily modified 10 NYCRR § 415.26 to allow nursing homes receiving individuals affected by the disaster emergency to comply with admission procedures as soon as practicable following admission or to forego such procedures for individuals returned to facilities from which they were evacuated.
  • Immunity from Professional Liability: EO 202.10, issued March 23rd, temporarily relieved all physicians, physician assistants, specialist assistants, nurse practitioners, licensed registered professional nurses, and licensed practical nurses from immunity 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 the injury or death was caused by the gross negligence of the medical professional.
  • Recordkeeping and Immunity: EO 202.10, issued March 23rd, temporarily relieved health care providers of recordkeeping requirements to allow them to respond to the COVID-19 outbreak, including maintaining medical records accurately reflecting 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 is given absolute immunity from liability for any failure to comply with any recordkeeping requirement.
  • Building Code for Changes in Physical Plant: EO 202.5, issued March 18th, temporarily modified any code related to construction, energy conservation, or other building code, and all state and local laws, ordinances, and regulations relating to administration and enforcement of the foregoing, to allow, upon approval by the Commissioner, temporary changes to physical plant, bed capacities, and services provided; the construction of temporary hospital locations and extensions; the increase in and/or exceeding of certified capacity limits; and the establishment of temporary hospital locations and extensions.