It is difficult to escape stories in the news today about the rise in COVID cases in nursing facilities in New York State and around the country. Given the vulnerability of the senior population to the virus, we were not surprised to hear in the beginning of March that the nursing homes were being “locked down.” The reporting documented loved ones communicating with nursing home residents from outside the window, sending in notes and goodies, and figuring out how to Zoom and Facetime to keep in touch.
Unfortunately, the storyline has taken a dark turn and now we are facing increasing deaths amongst nursing home residents and the staff members who care for them. In a recent Executive Order, Governor Andrew M. Cuomo enacted certain measures to attempt to mitigate these deaths. Since declaring a State of Emergency on March 7, 2020, Governor Cuomo has signed thirty such orders, this latest change in Public Health Law being his thirtieth.
This newest Order puts into place requirements related to COVID testing for nursing facilities, assisted living facilities, and adult care facilities. According to the directive, each facility must coordinate COVID-19 testing for all staff no less than twice per week. The directive makes clear that this applies to all staff, medical and non-medical, and those on contract as well as regular employees. The administrator of the facility must submit a plan for testing to the Department of Health by 5pm on Wednesday, May 13th and must report all positive test results to the Department of Health by 5pm the day after the positive result is received. All staff member who do not submit to testing, are ineligible to work as they will be deemed to have out of date or incomplete health assessments.
Facilities that do not comply risk revocation of their operating certificate and monetary penalties. The Order reads that non-compliance can result in a penalty of $2,000 per violation per day, and any subsequent violations assessed at $10,000 per violation per day.
Further, this Executive Order provides that a hospital may not discharge a patient to a nursing facility unless that patient has tested negative for COVID-19. The nursing facility must also be able to certify that they are able to sufficiently care for the patient.
According to the Order, these provisions will be in place through June 9th. As we have seen with other Orders from the Governor, they can be extended at that time if the emergency provisions are still deemed necessary. Advocates are hopeful that regulating the facilities in this way will slow the spread of COVID-19 that has disproportionally affected our seniors in nursing homes and other adult care facilities.
– Britt Burner, Esq.