Plugged In To Health

December 6, 2021

Healthcare & Policy Coverage Across New York State

The team at Hinman Straub has released Plugged In To Health; a newsletter providing healthcare and policy coverage across New York State.

What’s Inside Plugged In To Health

  • Governor’s COVID-19 Briefing and Announcements
  • Nursing Home Medicaid Rate Updates
  • Annual LHCSA Registration Process & 2020 Statistical Reports
  • NYS EVV Requirements and HHCS Implementation
  • Mental Health & SUD Parity Compliance Program Certification
  • ACF DALs
  • $3 M (State and Private) in Funding for Telehealth
  • Regulatory Update
  • Legislative Update
  • Coming Up
  • Quick Links

Governor’s COVID-19 Briefing and Announcements

During a recent briefing, Governor Hochul and Dr. Mary Bassett, Acting Commissioner of the State Department of Health (“DOH”) provided an update on the presence of the Omicron variant (SARS-CoV-2 variant B.1.1.529) of COVID-19 within New York. At least five cases of the Omicron variant have been identified in the State as of Friday.

As part of the State’s response to COVID-19, the Governor issued Executive Order (“EO”) No. 11 on November 26th, declaring a state of emergency through Jan. 15th. Specifically, EO No.11 satisfies the regulatory requirements necessary to authorize the DOH Commissioner to implement actions within the State’s Surge and Flex Health Care Coordination System (“Surge and Flex System”). Under the Surge and Flex System regulations, the Commissioner may require the following:

  • Increased bed capacity at health care facilities (including hospitals and nursing homes) by up to 50%, to include service category changes, physical plant changes, as well as the restriction, or postponement, of up to 100% of non-essential, elective procedures to facilitate the increase.
  • Enhanced staffing capacity, such that facilities must establish plans that ensure any increase in bed capacity is met with adequate staffing, where such criteria for staffing is at the discretion of the Commissioner.
  • Minimum levels of supplies and personal protective equipment (“PPE”) must be met, maintained, and managed by facilities, with at least a 60-day supply of PPE, where such PPE may be re-distributed under the authority of the Commissioner.
  • A statewide coordination of facilities, including the discharge, transfer, and receipt of patients among various facilities, as well as the designation of trauma centers, and the maintenance of a Statewide Health Care Data Management System.

Further, hospitals are required to adopt a detailed emergency Surge and Flex Response Plan (“Plan”), in addition to their standard emergency and disaster preparedness plan. The Plan must be implemented and meet the requirements of the Surge and Flex System among other criteria and emergency preparedness requirements.

The Commissioner is also authorized to take necessary action to expand and prioritize clinical laboratory testing during the declared state disaster emergency.

The DOH released written guidance on EO No. 11 with regard to limitations on non-essential, non-urgent procedures at certain hospitals which are currently experiencing limited capacity. The directive for hospitals is effective as of Friday, December 3 and will impact procedures scheduled for December 9th through January 15th, later if continued. The DOH is working with the 50+ impacted hospitals to allow some flexibility and assist in finding needed staff to ensure care can be delivered accordingly.

The Governor also stated that the National Guard will deploy roughly 120 medically trained individuals, which will primarily be dedicated to staffing nursing homes. This action is intended to reduce the number of hospital patients waiting to be discharged to nursing homes.

Governor Hochul encouraged all New Yorkers to “Get the booster, [and] get tested if you think you’ve been exposed…” The State will launch 40 new pop-up vaccine sites before the year’s end and has launched the “Boost Up NY” campaign, along with intents to provide additional COVID-19 vaccine incentive programs.

Governor Hochul also highlighted state and federal efforts to increase access to COVID-19 testing. Under President Biden’s COVID-19 Winter Action Plan, “individuals with private insurance – who now are able to get tests covered in physician offices, pharmacies, and clinics with no cost sharing – will also be able to get at-home tests reimbursed by their insurance.”

New York State has ordered 1 million over-the-counter (“OTC”) rapid COVID-19 antigen tests for local health departments (“LHDs”) outside of New York City. The LHDs shall prioritize the distribution of the free OTC tests to K-12 schools. The primary purpose of these tests is to prioritize the rapid return to or continuation of participation in classroom instruction following COVID-19 symptoms in unvaccinated or vaccinated people with no known exposure to someone with COVID. Additional information on the distribution of these tests is available here.

Annual LHCSA Registration Process & 2020 Statistical Reports

The DOH has issued guidance to Licensed Home Care Services Agencies (“LHCSAs”) through a “Dear Administrator Letter” (DAL – DHCBS 21-25) informing them that the 2020 LHCSA Statistical Report and 2020 Assisted Living Program (“ALP”) LHCSA Statistical Report is available for download as of November 31, 2021. Statistical reports must be submitted by December 31, 2021.

Additionally, the successful submission of a complete 2020 LHCSA, or 2020 ALP LHCSA, Statistical Report by the 12/31/21 deadline will fulfill the annual LHCSA registration requirement for the coming 2022 year.

Note: All ALP LHCSAs must submit the 2020 ALP LHCSA Statistical Report and any ALP LHCSA serving patients in the community must also fill out and submit all sections of the 2020 LHCSA Statistical Report.

The 2020 Reports will use the NYSDOH developed – Universal Data Collection System (“UDCS”) platform. Both the 2020 Statistical Report and the UDCS can be downloaded from the Health Commerce System (“HCS”) and be downloaded to the user’s computer. Due to changes to the software, the revised software will need to be downloaded. Any questions, comments, and concerns should be emailed to: [email protected]

NYS EVV Requirements and HHCS Implementation

The DOH has published a draft list of home health care services (“HHCS”) billing codes for Fee-for-Service (“FFS”) and Medicaid Managed Care (“MMC”) that will be subject to Electronic Visit Verification (“EVV”) requirements, available on the EVV website. Providers are encouraged to review the draft list and share relevant feedback with the Department via email at: [email protected] – by December 15, 2021. Upon their review of all feedback, the DOH will publish a finalized list of EVV-applicable billing codes that adds the HHCS codes to the finalized PCS codes.

DOH will also hold a webinar on December 8th, at 11 a.m., to begin preparing for the HHCS implementation. During the webinar, the Department will provide a high-level overview of EVV along with information on the inclusion of HHCS that will be subject to NYS EVV requirements starting on January 1, 2023.

Registration is required to attend the webinar. Click here to register.

Mental Health & SUD Parity Compliance Program Certification

Managed Care Organizations (“MCOs”) are required, under NYS regulations, to establish a mental health and substance use disorder parity compliance program, and are also required to certify to the DOH in writing that the MCO satisfactorily meets these regulatory requirements by December 31, 2021 and annually thereafter.

The DOH has posted the Parity Compliance Program Certification form which is required to be used by all MCOs subject to the regulation in order to certify that all requirements of the regulation have been met.

Completed certification forms, and any questions are to be sent to [email protected] by the December 31st deadline.

ACF DALs

The DOH has issued the following “Dear Administrator Letters” (“DALs”) to adult care facility (“ACF”) administrators.

  • ADA Compliance: DAL 21-29: Compliance with the Americans with Disabilities Act – The DOH issued this DAL to inform ACF operators of the DOH’s plans to amend Title 18 NYCRR, sections 487.4, 488.4, and 490.4. The proposed amendments will clarify the requirement for ACF operators to comply with the Americans with Disabilities Act (“ADA”). The amendments will also clarify the ACF admission and retention threshold and underscore the requirement for strong safety measures in the event of an emergency facility evacuation by defining the term “self-preservation” in the context of an ACF emergency evacuation. The proposed rule will also add provisions that require the ACF operator to determine its ability to safely meet the needs of the individual – in compliance with the local fire code, and through available staff, to safely evacuate any individual if needed and to assess any individual’s ability to “self-preserve”.

The DOH’s proposed rule will be subject to a 60-day public comment period upon publication in the State Register, and will also be available on the DOH’s Proposed Rule Making webpage.

  • Fire Protection Systems – DAL 21-23: Fire Protection System Maintenance Reminder – This DAL reminds ACFs that, per regulation: 1) at least one staff member with knowledge of the fire alarm system/s and procedures to reset such system/s must be on duty each shift; and 2) no less than annually, and more frequently as determined necessary via local code, a service company is required to test or inspect fire alarm, sprinkler, and smoke detection systems. An informational webinar regarding the above topic was held by the DOH in September of this year, and the slides from that webinar are available here: DAL 21-23: Fire Alarm System Maintenance Webinar
  • EQUAL Funding – The DOH has provided additional information regarding DAL 21-18 – Enhancing the Quality of Adult Living (EQUAL) Program for SFY 2021-22, through the following DALs.

DAL 21-18 Frequently Asked Questions

DAL 21-18 101 Webinar

$3 M (State and Private) in Funding for Telehealth

The DOH has announced the availability of $1.5 million in DOH Capital IT Funds to provide grants in support of projects under the Telehealth Capital Program. The objective of the Telehealth Capital Program is to support investments that will create new, community infrastructure to expand telehealth access among low-income, minority, rural, older, and other under-resourced communities whose connectivity gaps and disparate access to health care have been exacerbated by the COVID-19 pandemic.

Through a Solicitation of Interest (“SOI”) – SOI #18828 – Telehealth Capital Program, funded projects should address barriers such as lack of internet connectivity, equipment, or private spaces necessary to access telehealth. For additional information on this funding opportunity, click here. Questions regarding the Telehealth Capital Program (SOI #18828) are due by December 6, 2021 and can be e-mailed to: [email protected]

In addition, the Rockefeller Philanthropy Advisors (“RPA”), a private foundation, has also pledged additional funds totaling $1.5 million to support projects that invest in new community infrastructure that will expand telehealth access. The administration of this $1.5 million in funding, along with any associated policy or decisions, will be at the sole discretion of RPA.

Regulatory Update

Department of Health (“DOH”) –

Medicaid Transportation Program – The DOH has adopted regulations that outline payment standards for ambulance services delivered under the Medicaid program, including the use of the Medicare Emergency Triage, Treat, and Transport (“ET3”). This rule includes revisions to the original proposed rule to make technical changes, add transportation network companies (“TNCs”) to the list of non-emergency transportation services authorized in the Medicaid program, and make conforming amendments in the payment section of the regulation. The original proposed rule was posted in the September 23, 2020 issue of the State Register, and the revised proposed rule was posted in the August 25, 2021 issue. This rule is effective as of November 24, 2021.

Renewed – Emergency Regulations: The DOH has renewed the following emergency regulations, with the corresponding effective dates.

Investigation of Communicable Disease; Isolation and Quarantine – This regulation authorizes the State and local departments of health to take specific actions to control the spread of communicable diseases, including COVID-19. Such actions include the investigation of a “case” or “suspected case,” outbreak, or unusual disease, along with responsive actions during a disease outbreak, and to issue orders for isolation and quarantine. This rule also requires clinical laboratories to immediately report positive cases via the Electronic Clinical Laboratory Reporting System (“ECLRS”), and mandates reporting by hospitals of syndromic surveillance data during an outbreak

Minor technical updates and changes are included in this emergency regulation as compared to the previous emergency regulation adopted on August 26, 2021. This Rule is effective for 90 days from November 24, 2021.

Prevention of COVID-19 Transmission by Covered Entities – This regulation requires those health care facilities considered as “covered entities,” (i.e. hospitals, nursing homes, ACFs, HCBS providers) to have all covered personnel be fully vaccinated against COVID-19, absent the receipt of a valid medical exemption certified by a licensed physician, physician assistant (“PA”), or certified nurse practitioner, in accordance with generally accepted medical standards. This version of the emergency rule includes revisions to also permit a medical exemption certified by a licensed PA, and removes the original September 27, and October 7 deadlines as these have already passed.

This Rule is effective for 90 days from November 24, 2021.

Face Coverings for COVID-19 Prevention – This regulation requires individuals (ages two years and older) to wear a face-covering/mask under certain circumstances, pursuant to a determination made by the State’s Health Commissioner, based on COVID-19 incidence and prevalence or any other public health and/or clinical risk factors related to COVID-19 disease spread. Use of a face-covering/mask may be required in public places when social distancing is not possible and in certain settings (as determined by the Commissioner) such as schools, public transit, homeless shelters, nursing homes, correctional facilities, and health care settings.

Businesses must provide face coverings for those employees required to wear them and prohibit discrimination against a person who elects to wear a face-covering if they so choose. This regulation also sets forth requirements for attendees of large-scale indoor events (5,000 or more) and allows such venues to require the use of face coverings by all attendees irrespective of an individual’s vaccination status. Venues may deny admission to those who fail to comply, and any violations of this regulation may be subject to civil and criminal penalties of up to $1,000 for each violation.

This Rule is effective for 90 days from November 24, 2021.

Personal Caregiving and Compassionate Caregiving Visitors in Nursing Homes and Adult Care Facilities – This regulation requires nursing homes and ACFs to develop policies and procedures relating to compassionate caregiver visitation and personal caregiver visitation, and to allows for such visitation even when visitation in the facility is otherwise restricted, but allowing reasonable restrictions on the frequency and duration of such visits and on the number of visitors.

This Rule is effective for 90 days from November 26, 2021.

COVID-19 Reporting in Schools – This regulation requires all public and non-public schools to submit daily reports of COVID-19 testing as well as all positive results reported to the school (regardless of the manner of such report), including reports to the school, among students, staff, and/or volunteers.

This Rule is effective for 90 days from December 1, 2021.

Legislative Update

Bills that have passed both houses of the Legislature will be delivered to the Governor in “batches” over the next several months. Once a bill has been delivered to the Governor, she has 10 days (excluding Sundays) to either sign the bill into law or veto the bill.

The following bills were recently acted upon by the Governor:

A7240 (Gottfried) / S6542 (Kaplan) – Signed Chapter 632 – This Bill directs the Commissioner of the DOH to conduct a review of the Medicaid reimbursement rates for ambulette transportation regarding rate adequacy and to report such findings to the State Legislature.

Coming up

Thursday, December 9, 2021, @ 10:15 a.m. – Public Health and Health Planning Council (“PHHPC”) Full Council Meeting – Webcast

Monday, December 13, 21021, @10:00 a.m. – NYS Assembly – Public Hearing – The Impact and Implementation of the FY 2022 Budget Related to Direct and Indirect Funding of Workforce Development Programs Among Various State Entities. – Webcast

Tuesday, December 14, 2021, @ 10:15 a.m. – Early Intervention Coordinating Council Meeting – Webcast

Quick Links

NYS Department of Health — NYS DOH – Quick LinksMeetings, Hearings & Special Events — Medicaid Redesign Team — Senate Health Committee Website — Assembly Health Committee Updates — NYS Division of Budget

Plugged in to Health at Hinman Straub is prepared by Hinman Straub P.C. and is intended to keep our clients informed about health news and Legislative and regulatory developments that may affect or otherwise be of interest to them. The comments contained herein do not constitute legal opinion and should not be regarded as a substitute for legal advice.