Governor Announces End of State Public Health Emergency

Governor Cuomo announced the end of the state's public health emergency (PHE) last week and rescinded his COVID-19 executive orders (EOs) on Fri., June 25^th. While this development has generated much excitement and relief around the state, it has also raised a host of questions concerning the regulatory requirements imposed on long term care providers and the continued effectiveness of waivers and staffing flexibilities granted by the State during the pandemic. LeadingAge NY has been communicating with the Governor's staff, the Department of Health (DOH), and the State Education Department (SED) about these issues and has provided them with recommendations. We believe that, in the absence of EOs or regulations, the Executive Branch lacks legal authority to enforce the requirements imposed under the PHE. However, we are aware that DOH's COVID-19 mailboxes are responding to inquiries by stating that the staff testing guidance remains in effect. In addition, the Governor's office informed us on June 28^th that new guidance will be forthcoming, signaling that they may try to renew various requirements in some form through emergency regulations.

Key regulatory impacts of the end of the state PHE are analyzed in separate articles:

• Visitation, Personal Caregiving Visits, Communal Dining, and Activities in Nursing Homes and Adult Care Facilities (ACFs)
• Family and Resident Notification of COVID-19 Cases and Deaths in Nursing Homes and ACFs
• Testing of Nursing Home and ACF Staff
• Return to Work After Exposure or COVID-19 Diagnosis
• Return to Work After Travel
• Nursing Homes and ACFs' Responsibility to Ensure Access to Vaccine for Residents and Staff

LeadingAge NY members should be mindful that the federal PHE remains in effect. Depending on your licensure and the services you offer, your organization may be subject to the regulations and guidance issued by the Centers for Disease Control and Prevention (CDC), the Centers for Medicare and Medicaid Services (CMS), and/or the Occupational Safety and Health Administration (OSHA). Two key CDC guidance documents provide nursing homes and other health care providers with infection prevention measures for various scenarios, including admissions, management of new cases, off-site excursions, communal activities, and visitation. They are:

• Updated Healthcare Infection Prevention and Control Recommendations in Response to COVID-19 Vaccination
• Interim Infection Prevention and Control Recommendations to Prevent SARS-CoV-2 Spread in Nursing Homes

An article on the new OSHA Emergency Temporary Standard (ETS) is here.

To address the termination of professional licensure flexibilities granted during the pandemic (e.g., enabling professionals licensed in other states to practice in New York and enabling unlicensed individuals to perform certain tasks), SED has posted the following notice on its website:

Advisory Notice: Please be advised that the COVID-19 Disaster Emergency declared by the Governor, pursuant to Executive Order 202 issued on March 7, 2020, and each successor Executive Order to Executive Order 202 have expired as of June 25, 2021. While the several exceptions and authorizations relevant to the Title VIII statutes and regulations contained within these Executive Orders have now expired, the Department understands the concern regarding the short notice of the expiration of the COVID-19 Disaster Emergency and will take that into consideration in the event of any potential inquiries involving activity that had previously been authorized by Executive Order 202 and its successor Executive Orders at this time. However, Title VIII professionals should exercise due diligence and good faith efforts to return to compliance with all Title VIII statutory and regulatory requirements without delay. Please be advised that The Declarations of the Secretary of the United States Department Health and Human Services issued pursuant to the federal Public Readiness and Emergency Preparedness (PREP) Act remain in effect and continue to provide certain authorizations and exemptions for many professions and activities related to the ongoing COVID-19 emergency response including, allowing an expanded list of professionals to administer vaccine or to administer COVD-19 testing. Information about the PREP Act can be found on our website. The Department is working closely with other New York State agencies and the Governor’s Office to clarify issues relating to the expiration of the Disaster Emergency and the reinstatement of laws and regulations that have been previously modified or suspended during the COVID 19 Disaster Emergency. Please continue to monitor the Department’s website for updated guidance.

LeadingAge NY has compiled a list of the state COVID-19-related EOs that have been rescinded and related DOH COVID-19 guidance affecting the long term care sector. It is available here.

Contact: Karen Lipson, klipson@leadingageny.org, 518-867-8838