Plugged In To Health

March 7, 2022

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

  • Implementation Date of Additional PCS/CDPAS Regulatory Changes
  • Health Insurers – Suspension of Certain Preauthorizations – Lifted
  • Comment Period for Dual Eligible Integrated Care Roadmap
  • ACF DALs
  • Executive Order No. 4.6
  • COVID-19 Guidance Updates
  • Commissioner’s Determination on Indoor Masking – Extended
  • Regulatory Update
  • Legislative Update
  • Coming Up
  • Quick Links

Implementation Date of Additional PCS/CDPAS Regulatory Changes

On March 4, 2022, the DOH issued a second letter, providing an update to Medicaid Managed Care Organizations (“MCOs”), local Departments of Social Services (“LDSS”), health plan and provider associations, and interested parties on the implementation date for additional regulatory changes to Personal Care Services (“PCS”) and Consumer Directed Personal Assistance Services (“CDPAS’). The regulatory changes, including the Independent Assessor, will take effect on May 1, 2022. The letter groups these changes into two categories.

  1. Regulatory provisions that will be effective on May 1, 2022, only to the extent that they are being implemented for the initial assessment process for adults 18 and over; and
  2. Pended regulatory provisions to be effective on a later date, after May 1, 2022.

These additional changes are subsequent to those provisions that went in to effect on November 8, 2021. The Department will issue additional direction regarding the implementation and timeline for “pended” changes at a later date, and will provide at least sixty (60) days prior written notice of the effect dates when possible. Any questions on the information provided can be directed to: [email protected].

Health Insurers – Suspension of Certain Preauthorizations – Lifted

As of March 1, 2022, the suspension of certain preauthorization requirements that were implemented by the Department of Financial Services (“DFS”) under Insurance Circular Letter No. 1 (2022), and continued under Supplemental No. 1 to CL No. 1 (2022), are lifted, as the provisions of CL No. 1 (2022) expired on February 28, 2022. Health insurers may resume requiring the preauthorization for insured transfers between in-network hospitals and preauthorization requirements for in-network inpatient rehabilitation services following an inpatient hospital stay. Any questions regarding CL No. 1 (2022) and the Supplemental to CL No. 1 can be emailed to: [email protected]

Comment Period for Dual Eligible Integrated Care Roadmap

The Department of Health (“DOH”) is seeking public comment on a draft of the New York State Dual Eligible Integrated Care Roadmap (the “Roadmap”) which outlines the State’s priority to promote integrated care for Medicaid members who are dually eligible for Medicare and Medicaid, and describes the coordinated initiatives for improving integrated care options across the State.

Interested stakeholders may submit their comments up until Friday, March 25, 2022, via email to: [email protected], with a subject line of “Duals Integration Comments”. The Roadmap is available for viewing by clicking here.

ACF DALs

The Department of Health has issued the following “Dear Administrator Letters” (“DALs”) to Adult Care Facility (“ACF”) Operators and Administrators.

DAL #22-26: Revised Visitation Guidelines for ACFs – This DAL provides guidance outlining expanded visitation at ACFs.

DAL #22-22: Medical Equipment Waiver Process – This DAL clarifies the medical equipment waiver submission process as required by DAL #19-08, Revised Adult Care Facility (ACF) Equivalency List, including the submission of a waiver request via a completed Adult Care Facility Waiver Request/Equivalency Notification Form (DOH-4235).

DAL #22-20: Schedule 6 Acknowledgement Policy – Effective immediately, the Department has revised its policy regarding the Schedule 6 review for purposes of streamlining and creating efficiency when reviewing licensure applications.

Applications to establish a new ACF, Change of Operator applications, and applications seeking additional licensure and/or certification(s), require submission of a complete ACF Common Application Schedule 6 – Program Information, including a complete set of new or revised policies and procedures submitted as attachments.

Executive Order No. 4.6

On March 1, Governor Hochul issued Executive Order (“EO”) No 4.6 which continues, until March 31, 2022, the State’s declared disaster emergency due to statewide healthcare staffing shortages, and extends the various staffing flexibilities provided under EOs No. 4, 4.1, 4.2, 4.3, 4.4 and 4.5.

Further, EO 4.6 continues a temporary (30-day) hold on the issuance of violations under the Public Health Law, if a nursing home does not meet the required daily average staffing hours and/or the direct resident care minimum spending requirements which are in effect as of January 1, 2022.

COVID-19 Guidance Updates

Medicaid Providers: COVID-19 Guidance Updates – Coverage Policy and Billing Guidance for the Administration of COVID 19 Vaccines (updated 3/2/22) – This guidance is updated to include reference to Updated Coverage Criteria for COVID-19 Vaccine Counseling, and includes additional CPT Codes for the Pfizer-BioNTech vaccine administered on or after January 3, 2022.

Schools: Mask Guidance Updates – Consistent with Governor Hochul’s announcement to lift the statewide mask mandate for schools, effective Wednesday, March 2, 2022, the following guidance documents have been issued.

Isolation and Quarantine – The revised updated guidance below supersedes the previously issued guidance dated February 4, 2022, and includes a minor clarification regarding activities after isolation ends, and makes substantial updates to the section for schools and childcare programs, consistent with the updated guidance provided above.

*Quarantine and isolation for congregate settings and special populations, to include ACFs and nursing homes, remains unchanged from previously issued guidance.

Commissioner’s Determination on Indoor Masking – Extended

On March 2, 2022, NYS’s Health Commissioner, Dr. Mary Bassett extended, based on findings of necessity, a determination pursuant to 10 NYCRR 2.60 continuing the required use of a face covering/mask by individuals in certain designated indoor settings. The designated settings include healthcare settings – to include hospitals and nursing homes, state-regulated ACFs, congregate settings, shelters, and public transportation conveyances and transportation hubs.

While this determination does not mandate universal masking in schools, it does not limit a county, city, town, health department or school district from requiring the use of face coverings in schools. Consistent with updated recommendations issued by the Center for Disease Prevention and Control (“CDC”), masking in schools is recommended when there is a high level of community COVID-19 burden.

Regulatory Update

Department of Health (“DOH”) –

Article 28 Nursing Homes; Establishment; Notice and Character and Competence Requirements – The DOH has adopted regulations that implement revisions to the Public Health Law (“PHL”) § 2801-a pursuant to Chapters 102 and 141 of the Laws of 2021 and outlines the following changes.

  • Requires that notice, as well as an opportunity to submit comment, be provided to residents and staff, the public, the state long term care ombudsman, and other stakeholders – by both the applicant and the DOH upon the acknowledgement of a nursing home certificate of need (“CON”) establishment application (including a change of ownership), and again when the application is scheduled for consideration by the PHHPC.
  • Establishes that the “character, competence, and standing in the community” review standard be comparable for all applicants and includes language to subject all members of a limited liability company applicant be subject to such review standards.
  • When approving an applicant, the PHHPC must decide that a “substantially consistent” or a “consistently high level” of care has been rendered by the applicant at other facilities operated by the applicant. In making such a determination the following factors should be considered: specific information and the gravity of any violation, along with the way the applicant/operator exercised supervisory responsibility over the facility operation, and all remedial action taken (if any) upon the discovery of a violation.
  • Codifies standards of review for nursing home character and competence, using certain quality of care metrics when evaluating and deciding that a consistently high level of care has or has not been rendered.

The regulations will take effect upon a Notice of Adoption in the New York State Register which will be March 9, 2022.

COVID-19 Reporting and Testing – The DOH has re-issued emergency regulations that require 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 March 1, 2021 and will expire on May 29, 2022, if not continued.

Updated Retention Standards for Adult Care Facilities – The DOH has issued proposed regulations that clarify the requirement for ACF operators to comply with the Americans with Disabilities Act (“ADA”). The proposed changes 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 also adds 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 proposed rule will be subject to a 60-day public comment period upon publication in the State Register.

Legislative Update

The Legislature will be in session Monday through Thursday this week with the following bills of interest placed on committee agendas. The Legislative Committee meetings can be viewed online at the NYS Assembly website, or the NYS Senate website, respectively.

Assembly Codes – 12:00 Noon, Tuesday, March 8, 2022

A4591A (Dinowitz) / S8104 (Cleare) – This Bill permits the remote witnessing of health care proxies through audio-video conference.

Assembly Insurance – 10:00 AM, Wednesday, March 9, 2022

A8713 (McDonald) / S7692 (Breslin) – This Bill makes amendments to Chapter 678 of the Laws of 2021 (as proposed in legislative bills S7075 and A3516) to provide that an explanation of pharmaceutical benefits shall be satisfied by either a quarterly written summary of the information or by making such information available electronically upon consent by the covered individual.

Senate Aging – 9:00 AM, Wednesday, March 9, 2022

S6664A (May) – This Bill establishes a state-level program of all-inclusive care for the elderly (“PACE”) to provide community-based, risk- based, and capitated long-term care services under New York’s Medicaid plan and authorizes the continued operation of existing approved PACE organizations, while establishing eligibility and licensure requirements to be overseen by the DOH.

Senate Insurance – 12:30 PM, Monday, March 7, 2022

S714 (Breslin) / A996 (Cahill) – This Bill repeals the requirement that excess line brokers must obtain a declination from the medical malpractice insurance pool before the broker can place primary malpractice insurance in the excess line market.

Coming up

March 10, 2022 @ 1:00pm – 5:00pm – NYS Drinking Water Quality Council – Webcast

Monday, March 14 @ 10:00 a.m. – NYS Coordinating Council for Services Related to Alzheimer’s Disease and Other Dementia – via WebEx

Thursday, March 24 @ 10:00 a.m. – Public Health and Health Planning Council (“PHHPC”) – Committee Day 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.