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May 12, 2020

COVID-19: NYS Governor Cuomo Reverses Nursing Home Admission and Readmission Policy; Requires Immediate Plan for Employee Testing in Nursing Homes, Adult-Care Facilities

On Sunday, May 10, NYS Governor Cuomo issued Executive Order 202.30, reversing the state’s nursing home COVID-19 admission and readmission policy for hospital patients. The executive order prohibits hospitals from discharging any patient to a nursing home unless the operator or administrator first certifies it is able to properly care for a patient. Further, a hospital cannot discharge a patient to a nursing home without first performing testing for COVID-19 and obtaining a negative result.

The executive order also requires nursing homes and adult-care facilities to develop a plan to test staff for COVID-19 at least twice each week. Developed by the administrator, the testing plan must be filed with the Department of Health (DOH) no later than 5:00 p.m. on Wednesday, May 13. In addition, no later than Friday, May 15, both the operator and the administrator must provide a certification of compliance to the DOH with the executive order and all other executive orders and directives of the commissioner of health.

Pursuant to the executive order, all nursing homes and adult-care facilities—including all adult homes, enriched housing programs, and assisted living residences—must test or make arrangements to test all personnel, including employees, contract staff, medical staff, operators, and administrators, for COVID-19 at least twice per week. Any positive result must be reported to the DOH by 5:00 p.m. on the day following the receipt of the test result in a manner determined by the commissioner.

Any personnel who refuse to be tested for COVID-19 pursuant to the plan submitted to the DOH will be considered to have outdated or incomplete health assessments and will be prohibited from providing services to a nursing home or adult-care facility until testing is performed.

Additionally, nothing in the executive order prohibits staff from the DOH or the local department of health in the jurisdiction of the facility from having unrestricted access to the facility where access is determined necessary by the commissioner for testing all personnel for COVID-19.

Any nursing home or adult-care facility that fails to comply with the executive order will be subject to a penalty of $2,000 per violation per day. Any subsequent violation will be subject to a penalty of $10,000 per violation per day. The commissioner is authorized to suspend or revoke the operation certificate of any nursing home or adult-care facility if it is determined that the facility has not complied with the executive order or any regulations or directives issued by the commissioner. Under these circumstances, the commissioner may appoint a receiver to continue the operations of the facility upon 24 hours’ notice to the current operator.

Unless extended, the executive order is effective through June 9.

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

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com or any member of the COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.

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