Tracking New York State’s COVID-19 Executive Orders: The Complex Cadence of Renewal Orders

NY State Government: Week in Review

To support COVID‑19 response efforts, New York State Governor Andrew Cuomo has issued more than 50 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 (pursuant to N.Y. Executive Law § 29-a(2)(a)), requiring stakeholders to track initial expiration dates as well as any subsequent renewals, terminations or amendments. Recognizing that the pandemic is far from over, the Governor has continued to renew most waivers and directives by issuing “batched” renewal orders that extend many waivers and directives all at once. It can be challenging to parse these renewal orders, in light of the growing number of Executive Orders, the growing number of renewal batches and the fact that many orders fall into more than one batch.

This update summarizes the various batched renewals that are currently in effect, focusing on the waivers and directives that matter most to healthcare stakeholders. Manatt Health now offers a new subscription tracking resource for healthcare content in New York’s Executive Orders. In addition to receiving regular email updates that summarize new orders and flag upcoming expiration dates, subscribers have access to an interactive tracking tool that lists waivers and directives along with details on affected provider types, expiration dates and amendments. For more information, please contact Meghan McNamara or Julian Polaris.

Renewal Batches 1 and 2: Orders From the Early Days of the Pandemic

In the weeks following the Governor’s March 7 declaration of a statewide “disaster emergency,” Executive Orders 202 through 202.18 included dozens of waivers and directives that, among other things, directed healthcare facilities to rapidly expand capacity, permitted in-state practice by healthcare professionals holding out-of-state licensure, lifted restrictions on practitioner scope of practice (especially with respect to COVID-19 testing), expanded the use of telehealth and suspended various administrative requirements for healthcare providers.

Since that time, the Governor has continued to renew most (but not all) of these waivers and directives in two batches:

  • Executive Orders 202 through 202.14 are renewed as a group, and were most recently extended until August 5 (in Order 202.48).
  • Executive Orders 202.15 through 202.21 are renewed as a group, and were most recently extended until August 6 (in Order 202.49).

Renewal Batch 3: Waivers Concerning Out-of-State Licensure

During the height of New York’s COVID-19 surge, out-of-state practitioners offered crucial support. Recognizing the importance of licensure waivers, the Governor began issuing batched renewals for any prior order that “allowed for the practice of a profession in the state of New York without a current New York State licensure, or registration, including but not limited to those individuals who are validly licensed in another state or Canada.” This licensure-related renewal language appeared most recently in Executive Order 202.44, which expired on July 21. However, all the licensure-related orders are also part of Batch 1 and Batch 2, as described above, and so remain in effect via those renewals.

There is one additional complication regarding these waivers. Before the most recent renewal in Executive Order 202.44, batched licensure-related renewals appeared in orders 202.27 and 202.32. Both of those orders have since been included in batched renewals of their own. The Executive has not clarified how to interpret this type of “renewal within a renewal”; it is not clear whether Order 202.44’s express batched renewal takes precedence, or whether they have indirectly renewed the licensure waivers by “renewing the renewals” in Order 202.27 or 202.32.

Renewal Batch 4: Waivers and Directives Concerning Nursing Home Testing

On May 5, Executive Order 202.30 ordered all nursing homes and adult care facilities to implement routine testing for all staff members. The details of that order have since been amended, and the amended testing requirement has been extended until August 8 (pursuant to Executive Order 202.50).

Renewal Batch 5: Orders From the Later Days of the Pandemic

Although the pace of new waivers and directives has slowed since the early months of the pandemic, the Governor has continued to issue Executive Orders that meaningfully support providers’ COVID-19 response efforts, including with respect to flexibilities around COVID-19 testing and lifting restrictions on elective procedures. These flexibilities and directives fell outside of Batch 1 and Batch 2, and so have been renewed as a separate batch until August 8 (under Executive Order 202.53).

Batch 5 includes a number of Executive Orders that themselves contain renewals of prior orders. Thus, Batch 5 presents some of the same “renewal within a renewal” interpretation challenges described above under Batch 3.

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Governor Cuomo’s Executive Orders have been immensely valuable to healthcare providers and other stakeholders during the COVID‑19 crisis. Elements of the execution of these orders have, however, generated confusion on some occasions, particularly with respect to batched renewals. Manatt Health’s new 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.

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