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March 24, 2020

COVID-19: NYS Executive Order Temporarily Loosens Scope of Practice Restrictions on Non-Physicians, Grants Immunity, Relaxes Recordkeeping Requirements

Issued yesterday, Governor Cuomo’s Executive Order No. 202.10 significantly loosened the scope of practice restrictions on many health care professionals to ensure there is adequate capacity within the health care system to treat COVID-19 patients. In addition, the order conferred immunity upon health care practitioners and relaxed certain recordkeeping requirements. These provisions are in effect until April 22.

Nurse Practitioners

Section 6902 of the NY Education Law places collaboration requirements on nurse practitioners (NP). An NP with less than 3,600 hours of practice is required to have a collaboration agreement with a licensed physician, and an NP with more than 3,600 hours of clinical practice must have collaborative relationships with either a physician or a hospital. The March 23 executive order now permits NPs to practice independently without a written practice agreement or collaborative relationship with a physician or hospital.

Physician Assistants (PA) and Specialist Assistants (SA)

Under Section 6542 of the NY Education Law, a PA may only perform medical services under the supervision of a physician within the scope of practice of the supervising physician. Under 6549 of the NY Education Law, an SA may perform medical services only under the supervision of a physician only when the acts and duties assigned are related to the designated medical specialty for which the SA is registered. Both of these laws have been temporarily modified to allow PAs and SAs to perform medical services without oversight from a supervising physician.

Certified Registered Nurse Anesthetists (CRNAs)

CRNAs provide services in a hospital “under the supervision of an anesthesiologist who is immediately available as needed or under the supervision of an operating physician who has been found qualified by the governing body and the medical staff to supervise the administration of anesthetics and who has accepted responsibility for the supervision of the CRNA” (10 NYCRR 405.13). In free-standing and off-site hospital-based ambulatory surgery centers, a CRNA could only administer anesthesia “under the direct personal supervision of a qualified physician, who may be the operating surgeon” (10 NYCRR 755.4). The executive order now allows CRNAs to administer anesthesia without the supervision of a physician.

Registered Nurses

The definition of the practice of nursing under Article 139 does not allow nurses to issue medical orders. This has now been relaxed to allow registered nurses to order the collection of throat or nasopharyngeal swab specimens for purposes of testing from individuals suspected of being infected by COVID-19.

Loosened Recordkeeping Requirements

Recordkeeping requirements under professional misconduct laws and laws governing hospitals, nursing homes, and clinical laboratories have been temporarily relaxed. Health care providers are relieved of recordkeeping requirements to the extent necessary 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 is afforded absolute immunity from liability for failure to comply with recordkeeping requirements.

Other Immunity Provisions

The executive order contains new and important immunity provisions protecting medical professionals. Professionals are granted immunity from both civil and criminal penalties for practicing without physician oversight or supervision as formerly required under their licensure. In addition, NY Education Law sections 6527(2), 6545, and 6909(1) have been modified to state that all physicians, PAs, SAs, NPs, licensed registered professional nurses, and licensed practical nurses will 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 the 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 the injury or death was caused by the gross negligence of the medical professional.

If you have any questions regarding the content of this alert, please contact Fran Ciardullo, special counsel, at fciardullo@barclaydamon.com or another member of the firm’s Health Care & Human Services Practice Area.

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