The NCCI Long Term Care Ombudsman program received the following email detailing an Executive Order from Governor Cuomo regarding nursing homes and the COVID-19 pandemic:
Good morning everyone. Below is a summary from Lindsay Heckler regarding the Executive Order Issued this weekend by Governor Cuomo related to staff being tested and nursing homes no longer being required to accept COVID Positive residents. This is a move in the right direction to help slow down the spread in nursing homes and protect the residents.
Lindsay’s Summary:
Here is the executive order the Governor issued yesterday: https://www.governor.ny.gov/news/no-20230-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency
It’s pretty straightforward and I’ve copy pasted the below with emphasis. In short: every nursing home and adult care facility is required to test (or arrange to have tested) all staff twice a week, pursuant to a plan the administrator must develop / file with DOH by 5pm this Weds (5/11). Staff who refuse to be tested shall not be allowed to work. In addition, by Friday, facilities must certify they are in compliance. The DOH has the authority to revoke / suspend a facilities (nursing home and adult care facility) operating certificate and appoint a receiver on 24 hours notice. Nursing homes and adult care facilities face $2k up to $10k per day per violation penalty for noncompliance.
Lastly, the E.O. states hospitals shall not discharge a patient to a nursing home unless the nursing home operator or administrator has first certified that it is able to properly care for such a patient. In addition, hospitals shall not discharge a patient to a nursing home without first performing and obtaining a COVID negative test.
Based on the E.O it would be my understanding that no one should be admitted to nursing homes that are in IJ status …
The following is in effect through June 9th:
• Clause (b) of subparagraph (v) of paragraph (1) of subdivision (c) of section 415.26 , paragraph (8) of subdivision (a) of section 487.9 and paragraph (5) of subdivision (a) of section 488.9 of Title 18 of the NYCRR; and subdivision (7) of section 4656 of the Public Health Law are modified to the extent necessary to require that the operator and administrator of all nursing homes and all adult care facilities, including all adult homes, enriched housing programs and assisted living residences to test or make arrangements for the testing of all personnel, including all employees, contract staff, medical staff, operators and administrators, for COVID-19, twice per week, pursuant to a plan developed by the facility administrator and filed with the Department of Health no later than 5:00 p.m. on Wednesday, May 13, 2020.
Any positive test result shall be reported to the Department of Health by of the day following receipt of such test result 5:00 p.m., in a manner determined by the Commissioner of Health. Nothing herein shall prohibit staff of the Department of Health, or the local health department in the jurisdiction of the nursing home or adult care facility, from having unrestricted access to the facility where such access is determined necessary in the discretion of the Commissioner of Health for purposes of testing all personnel for COVID-19, and provided further that in such circumstances the operator and administrator shall cooperate fully with Department of Health and local health department staff to facilitate such testing.
• No later than May 15, 2020 both the operator and the administrator of all nursing homes and adult care facilities must provide to the Department of Health a certification of compliance with this Executive Order and directives of the Commissioner of Health, and all other applicable Executive Orders and directives of the Commissioner of Health.
• The Commissioner of Health is authorized to suspend or revoke the operating certificate of any nursing home or adult care facility if it is determined that such facility has not complied with this Executive Order, or any regulations or directives issued by the Commissioner of Health, and if determined to not be in compliance, notwithstanding any law to the contrary the Commissioner may appoint a receiver to continue the operations on 24 hours’ notice to the current operator, in order to preserve the life, health and safety of the people of the State of New York. Any false statement in the attestation shall be punishable under the provisions of Penal Code 210.45.
• Any nursing home or adult care facility which does not comply with this Executive Order shall be subject to a penalty for non-compliance of $2,000 per violation per day, as if it were a violation of section 12 of the public health law, and any subsequent violation shall be punishable as if it is a violation of section 12-b of the public health law, with a penalty of $10,000 per violation per day.Any personnel of a nursing home or adult care facility who refuse to be tested for COVID-19 pursuant to a plan submitted to the Department of Health shall be considered to have outdated or incomplete health assessments and shall therefore be prohibited from providing services to such nursing home or adult care facility until such testing is performed.
• Any article 28 general hospital shall not discharge a patient to a nursing home, unless the nursing home operator or administrator has first certified that it is able to properly care for such patient. Provided further, that any article 28 general hospital shall not discharge a patient to a nursing home, without first performing a diagnostic test for COVID-19 and obtaining a negative result.
Claudette Royal
New York State Ombudsman
Office of the State Long Term Care Ombudsman
2 Empire State Plaza, 5th Floor, Albany, NY 12223-1251
(518) 473-8718 | Claudette.Royal@aging.ny.gov
www.aging.ny.gov