NYS Executive Orders Update: Maintaining and Modifying Prior Waivers and Directives

NY State Government: Week in Review

In support of the state’s ongoing COVID‑19 response efforts, New York Governor Andrew Cuomo has issued nearly 80 Executive Orders that temporarily waive state regulatory requirements (waivers) or impose new mandates (directives), especially with respect to the healthcare industry. These orders automatically expire after 30 days unless renewed, requiring stakeholders to track initial expiration dates as well as any subsequent renewals, terminations or amendments.

This update reviews the state’s ongoing efforts to simplify and consolidate the cadence of renewal orders, and also describes selected trends and waivers from recent Executive Orders with a focus on the implications for healthcare stakeholders.

Manatt Health offers a subscription-based tracking resource for healthcare content in New York’s Executive Orders. In addition to receiving regular email updates summarizing new orders and flagging upcoming expiration dates, subscribers have access to an interactive tracking tool that lists all the waivers and directives along with details on affected provider types, expiration dates and amendments. For more information, please contact Meghan McNamara or Julian Polaris.

Further Consolidation of Renewal Order Cadence

After issuing dozens of Executive Orders in the early weeks of the COVID-19 crisis, the Governor began issuing consolidated renewal orders that extend numerous waivers and directives derived from multiple underlying Executive Orders. As we have previously discussed, this “batched” system reduced the number of renewal orders but introduced new complexity due to both the number of renewal batches and the fact that many orders fell into more than one batch. In more recent orders, the Governor had made efforts to further consolidate renewals that allowed the vast majority of key healthcare-related waivers and directives to be renewed together on a single timeline, including most of the waivers regarding out-of-state practitioner licensure and alternative sites of care, as well as the directives regarding COVID-19 testing for nursing home personnel.

Recent Executive Orders have demonstrated a continuation of this consolidation trend. This week’s Executive Order 202.79 grouped yet more healthcare-related waivers and directives into the ever-growing omnibus renewal order, extending all the provisions through January 1, 2021.

Recent Executive Order Highlights

The consolidated renewals in Executive Order 202.79 would not have been possible were it not for another crucial action: The order extended the State Disaster Emergency declaration for COVID‑19. The Governor originally declared a Disaster Emergency, effective March 7, at the beginning of the state’s pandemic response, with a scheduled duration of six months. Were it not for the recent extension, the Disaster Emergency would have expired on December 3, along with the Governor’s authority to issue, amend and renew emergency waivers and directives.

As the state responds to the latest wave of COVID-19 cases, Executive Order 202.77 (issued November 23) illustrates a renewed focus by the Governor on the experience of residents in long-term care facilities during the pandemic to date and public health concerns that have become more pressing as the holiday season approaches. The order directs the Department of Health to promulgate guidelines, enforceable under authority previously established in Executive Order 202.30, for the acceptance of patients and residents back into facilities after having been released from a Nursing Home or Adult Care facility for a leave of absence to visit friends or family. The order was followed by guidance issued on November 24 by the Department of Health that includes quarantine and testing guidance for returning residents and facility guidance for testing, screening, communication of risk, and return testing and quarantine protocols for families and residents.

Other Executive Orders have tweaked previously issued waivers and directives by, for example, extending the time frame for laboratories to report COVID-19 and flu test results to the Department of Health or permitting physicians and nurse practitioners to issue standing orders for saliva specimens related to COVID-19 testing (building on a prior flexibility regarding swab specimens).

In recent weeks, New York State, like much of the nation, has struggled to maintain its lowered rates of COVID‑19 infections, hospitalizations and deaths. Nationwide data illustrates daily for us that the pandemic is far from over, despite the promise of vaccines on the horizon. Manatt Health’s subscription service tracking New York State Executive Orders offers timely updates and analysis to help healthcare stakeholders keep abreast of relevant waivers, directives, renewals and amendments. For more information, please contact Meghan McNamara or Julian Polaris.



pursuant to New York DR 2-101(f)

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