Yesterday Gov. Cuomo began mandating new restrictions on hospital discharges to a nursing home of any patient unless they test negative for COVID-19. Similarly, all staff will be required to be tested twice a week to rule out COVID-19. Today the governor issued Executive Order 202.30 as a follow up to his press conference. 

The governor clarified that nursing homes may not discriminate in admissions based on a COVID-19 diagnosis or suspected case of COVID-19. In addition, the governor reiterated that nursing homes should not admit any residents testing positive for COVID-19 or suspected as such unless they can adequately care for such conditions. Elaborating on this point, it was noted that this means:

1. having sufficient supplies of PPE (Personal Protective Equipment);
2. having sufficient staff;
3. having the ability to cohort residents with COVID-19 into a separate unit or section of the facility; and
4. having dedicated staff for residents with COVID-19 who are not also providing services to non-COVID-19 residents.

The governor’s message was noted as firm: “The rule is simple: a nursing home can only serve a resident if they are fully capable of providing the level of individual care – staff, facilities, equipment – if not, contact NYS DOH for the resident’s transfer . . . . If a nursing home has a COVID-positive resident that they cannot treat for any reason, contact NYS DOH for transfer.” 

In our March 2, 2020 Health Law Wire, “COVID-19 – LTC Facilities at Risk,” we quickly noted that the first deaths in the United States occurred in a nursing home within the State of Washington who had been readmitted from a hospitalization. At that time, the CDC issued interim guidelines which have since been modified and magnified (e.g., no visitation), but which also included what we termed as common-sense measures. The current CDC guidance document, “Interim Additional Guidance for Infection Prevention and Control for Patients with Suspected or Confirmed COVID-19 in Nursing Homes” is available here.

Significantly, nursing homes in New York must adhere to state standards such as those set forth in the governor’s new mandate as well as comply with federal standards of participation and guidelines issued by the CDC. In the CDC guidance noted above, there are standards for use of dedicated space for COVID-19 residents as well as suspected cases. It is critical that all nursing homes cohort COVID-19 residents appropriately in this regard. The CDC guidance provides the following section, “Dedicate Space in the Facility to Monitor and Care for Residents with COVID-19”:

1. Dedicate space in the facility to care for residents with confirmed COVID-19. This could be a dedicated floor, unit or wing in the facility or a group of rooms at the end of the unit that will be used to cohort residents with COVID-19.
2. Assign dedicated healthcare personnel (HCP) to work only in this area of the facility.
3. Have a plan for how residents in the facility who develop COVID-19 will be handled (e.g., transfer to single room, prioritize for testing, transfer to COVID-19 unit if positive).
4. Closely monitor roommates and other residents who may have been exposed to an individual with COVID-19 and, if possible, avoid placing unexposed residents into a shared space with them.
5. Create a plan for managing new admissions and readmissions whose COVID-19 status is unknown. Options may include placing the resident in a single-person room or in a separate observation area so the resident can be monitored for evidence of COVID-19. Residents could be transferred out of the observation area to the main facility if they remain afebrile and without symptoms for 14 days after their exposure (or admission). Testing at the end of this period could be considered to increase certainty that the resident is not infected.
6. If an observation area has been created, residents in the facility who develop symptoms consistent with COVID-19 could be moved from their rooms to this location while undergoing evaluation.
7. All recommended PPE should be worn during care of residents under observation; this includes use of an N95 or higher-level respirator (or facemask if a respirator is not available), eye protection (i.e., goggles or a disposable face shield that covers the front and sides of the face), gloves, and gown. Cloth face coverings are not considered PPE and should not be worn by HCP when PPE is indicated.

Part II of this Health Law Wire will cover additional relevant information and will be provided once further details are made known with regard to the governor’s new mandate. Notably, the requirement for bi-weekly testing of staff. 

These New York State mandates have the force of law and may lead to penalties, including criminal prosecution for knowing violations under Sections 12 and 12-b of the Public Health Law. The governor has again reiterated that violations of standards issued during the crisis may result in loss of licensure. Federal standards continue to apply unless waived by CMS. In particular, all health care providers must comply with the Americans with Disabilities Act (ADA) and other laws prohibiting discrimination based on a medical condition such as COVID-19. Note further that discharge and transfer procedures – which include notice, reasons, and an opportunity for a hearing with DOH – have not been waived. This was not addressed in the governor’s mandates; however, such procedures are also mandated by federal law.

For more information on these and related issues impacting nursing homes, please contact Raul Tabora, any of the attorneys in our Long Term Care practice, or the attorney in the firm with whom you are regularly in contact.