Even as providers struggle at the front lines of the COVID-19 crisis, the NYS Justice Center has just turned up the heat—and potential scrutiny—for OPWDD providers grappling with the impacts of COVID-19.
Already under the strain of lowered reimbursement levels and recoupment efforts, providers could face increased NYS Justice Center action as a result of new reporting protocols for COVID-19 impacts that were released shortly after the crisis began. The protocols implement tight reporting standards for potential and actual exposure scenarios involving employees or the people they care for based on a broad description of categories of quarantine as well as running reports from providers regarding the status of affected workers and contact tracing reported individuals.
A related question is whether and to what extent NYS Justice Center sanctions of debarment from the care of the vulnerable or even criminal prosecution under the NYS Justice Center’s broad powers could run afoul of recently enacted immunities created by state law, executive orders, and federal laws and regulations designed to protect health care workers from COVID-19-related liabilities. While the reach of immunity is broad and encompasses all actions taken pursuant to a COVID-19-related emergency order, these provisions may not directly preclude NYS Justice Center sanctions. Even if they did, the language of the prescribed immunity statutes limiting immunity to actions taken pursuant to an “emergency order” may not provide protection to all non-mandated actions and activities.
The NYS Justice Center’s broad demands add unwelcome murkiness to the already challenging plight facing providers that are protecting employees and patients on the front lines.
If you have any questions regarding the content of this alert, please contact Linda Clark, Health Care Controversies Team leader, at lclark@barclaydamon.com or another member of the firm’s Health Care Controversies Team.
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. You can reach our COVID-19 Response Team at COVID-19ResponseTeam@barclaydamon.com.