Key Takeaways

• New York Executive Order 202.30 mandates all nursing homes and adult care facilities in the state must  test all staff for COVID-19 twice per week and report any positive results to the state Department of Health by  the next day

• Any facilities found not complying with the directive may face revocation of  their operating certificate and penalties of up to $2,000 per day or $10,000 per day for repeat violations

• Nursing homes have until May 15 to submit a certification of compliance to the Department of Health

• The order also prohibits any hospital from discharging a patient  to a nursing home unless the patient tests negative for COVID-19

After facing widespread criticism of his handling of the COVID-19 pandemic with respect to nursing homes, on May 10, 2020, New York Gov. Andrew Cuomo implemented Executive Order No. 202.30 mandating that all nursing homes and adult care facilities in the state must test their staff two times per week and report any positive results to the state Department of Health by the next day. The order provides the state commissioner of health with authority to suspend or revoke the operating certificate of any nursing home or adult care facility that does not comply with this directive and states that a facility that is not in compliance may be subject to a penalty of $2,000 per day with any subsequent violation subject to a penalty of $10,000 per day.

The order further provides that any staff member of a nursing home or adult care facility who refuses to be tested will be prohibited from providing services to the facility until the testing is performed. Nursing homes have until May 15 to submit a certification of compliance with the order to the Department of Health.

Notably, the order prohibits any hospital from discharging a patient to a nursing home unless the patient tests negative for COVID-19. The policy allows nursing homes to accept COVID-19-positive patients, such as those that are transferring from their home and need care. However, it places the responsibility on hospitals for finding alternatives for those patients they are discharging that test positive.

Although not specifically set forth in the order, Gov. Cuomo emphasized in his press conference on Sunday,, May 10 that nursing homes should transfer any person they cannot provide care for to another setting. He also clarified that his May 10 executive order did not rescind his March 25 executive order that required nursing homes to admit COVID-19-positive patients. However, he stated the March 25 order was intended to help free up hospital beds for the sickest patients as cases surged.

In response to the order, the New York State Health Facilities Association and New York State Center for Assisted Living have stated they approve of Gov. Cuomo’s new directives, but believe state assistance will be needed to increase on-site testing of staff.

For more information regarding New York’s executive order or immediate guidance on how it may impact your business, contact:

• Lisa M. Robinson
• Caroline J. Berdzik
• Or another member of Goldberg Segalla’s Health Care or Long-Term Care practices