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State & Federal Responses to Coronavirus

March 21, 2020

In an effort to provide a day-to-day update onthe State and Federal actions in response to the coronavirus, we have compiled the following list of major actions taken to date.  It is not intended to be comprehensive or detailed.  In the event that you are interested in obtaining additional information about any item, please contact us at (518) 313-1450 or AlbanyNews@FarrellFritz.com.  We anticipate updating this on a regular basis.

FEDERAL ACTIONS

To date, Congress has passed two bills directly responding to coronavirus crisis.  A brief description of key provisions in each follows.

H.R. 6074 Coronavirus Preparedness and

Response Supplemental Appropriations Act

This bill provides $8,300,000,000 in emergency funding for federal agencies to respond to the coronavirus outbreak.  Details follow.

Division A – Coronavirus Preparedness and Response Supplemental Appropriations Act

Title I: Department of Health and Human Services

  • Grants and additional amounts for “Salaries and Expenses” of $61,000,000 to the Food and Drug Administration for prevention, preparation and response to the coronavirus outbreak.
    • Includes development and manufacture of vaccines and other medical countermeasures.

Title II: Small Business Administration

Disaster Loans Program Account

  • Grants additional $20,000,000 in disaster loans available for the ‘‘Disaster Loans Program Account” that may be used to make direct economic injury disaster loans.

Title III Department of Health and Human Services

Center for Disease Control and Prevention

  • Adds $2,200,000,000 for “CDC-Wide Activities and Program Support.”
    • Not less than $950 million shall be provided for grants to or cooperative agreements with States, localities, and territories for prevention and control of infections.
    • $475,000,000 must be made available for Public Health Emergency Preparedness grants.
    • $40,000,000 must be made available to tribal organizations.
    • $300,000,000 shall be merged with the Infectious Diseases Rapid Response Reserve Fund.

National Institute of Allergy and Infectious Diseases

  • $836,000,000 set aside for the National Institute of Allergy and Infectious Diseases.
    • $10 million of such funds will be transferred to National Institute of Environmental Health Sciences for worker-based training to prevent and reduce exposure to hospital staff and first responders.

Office of the Secretary of Public Health and Social Services Emergency Fund

  • $3.100,000,000 will be allocated to the Public Health and Social Services Emergency Fund for development of countermeasures, prioritizing platform-based technologies with U.S. based manufacturing capabilities and the purchasing of vaccines and related medical equipment.
    • $300,000,000 to remain available through September 30, 2024 for products purchase related to disease outbreak.

Title IV Department of State

Administration of Foreign Affairs Diplomatic Programs

  • Allows additional $264,000,000 for “Diplomatic Programs” to remain available until September 30, 2022 for necessary expenses to prevent, prepare for, and respond to coronavirus outbreak.
    • Includes maintaining operations of consular operations, reimbursement for evacuations and other emergency preparedness.

United States Agency for International Development – Funds Appropriated to the President Office of Inspector General

  • Sets additional $1,000,000 to remain available until September 30, 2022 for oversight activities.

Bilateral Economic Assistance – Funds Appropriated to the President Global Health Programs

  • Adds $435,000,000 to remain available until September 30, 2022 for expenses to prevent, prepare for, and respond to coronavirus outbreak.

International Disaster Assistance

  • $300,000,000 allocated for the “Economic Support Fund.”

Economic Support Fund

  • $250,000,000 allocated for the prevention of and response to coronavirus, including issues of economic, security, and stabilization requirements.

Division B – Telehealth Services during Certain Emergency Periods

  • The Secretary of Health and Human Services will have the authority to temporarily waive or modify application of certain Medicare requirements with respect to telehealth services during “certain emergency periods.”

H.R. 6201 Families First Coronavirus Response Act

Department of Agriculture

Food and Nutrition Service

  • $500,000,000 additional for “Special Supplemental Nutrition Program for Women, Infants, and Children” (WIC) and the “Commodity Assistance Program” for emergency food assistance program for:
    • Children who are forced to be at home due to school closures because of a health emergency, and who would otherwise have been eligible for free school lunch.
    • Waiver for program requirements for the Richard B. Russell National School Lunch Act.

Department of Defense

Defense Health Program

  • Additional $82,000,000 for health services related to COVID-19.

Department of the Treasury

Internal Revenue Service

  • Additional $15,000,000 to remain available until September 20, 2022 for carrying out the “Family First Coronavirus Response Act.”

Tax Credits for Paid Family and Medical Leave

  • Employers will be allowed a 100% tax-credit for taxes imposed on qualified sick leave and family leave paid by the employer for each quarter which the coronavirus health emergency is in effect.
  • Employers will have health plan expenses credit increased under certain conditions set forth by the Secretary of the Treasury.
  • Self-employed individuals will be given tax-credit for qualified sick leave.

Department of Health and Human Services

  • $250,000,000 to made available for “Aging and Disability Services Programs” during the health emergency, of which will be distributed in the following programs:
    • $160 million to be made available for “Home-Delivered Nutrition Services.”
      • $80,000,000 to be made available for “Congregate Nutrition Services.”
      • $10,000,000 for nutritional programs for Native Americans.
    • $64,000,000 will be available for health services in response to coronavirus.
    • All health plans must cover costs of coronavirus testing and shall not impose any cost-sharing requirements.
    • Individuals receiving health care under Medicaid or CHIP shall not have cost-sharing imposed for coronavirus testing.
    • States shall extend Medicaid coverage for uninsured individuals during the coronavirus health emergency.
    • States shall receive a 6.2 percent increase in the federal share of Medicaid so long as states do not change enrollment standards, methodologies or procedures, increase premiums, impose cost-sharing requirements for coronavirus testing, increase the frequency of eligibility determinations or increase the local share.

Department of Labor

Emergency Family and Medical Leave Expansion Act

  • An employee who is required to take leave due to the coronavirus health emergency is to be given ten days of “unpaid” leave. The employer must provide pay subsequent days on leave after the initial ten day period.
  • Paid leave is not to exceed $200 per a day and $10,000 in aggregate.

Emergency Unemployment Insurance Stabilization and Access Act

  • Secretary of Labor will assist in providing awareness to employers of “short-term” compensation programs to help advert layoffs.
  • Federal government will increase cost-share of unemployment benefits.

Emergency Paid Sick Leave Act

  • Employers must provide each employee with paid sick leave to the extent the employee cannot work (or telework) due to coronavirus infections, quarantine, or caring for family-member due to coronavirus.
  • Employer cannot terminate an employee for taking sick leave.

Office of the Secretary

Public Health and Social Services Emergency Fund

  • Add $1,000,000,000 for activities under Public Health Service Act, to pay claims of providers for reimbursement for health services related to COVID-19.

Department of Veterans Affairs

Medical Services

  • Grants $30,000,000 for health services associated with COVID-19

Medical Community Care

  • Grants additional $30,000,000 for health services associated with COVID-19.

Executive Actions

The President suspended immigration of all individuals who were in China within the previous 14 days, with some exceptions. (Proclamation, January 31, 2020)

The President suspended immigration of all individuals who were in Iran within the previous 14 days, with some exceptions. (Proclamation, February 29, 2020)

The President directed the Secretary of Health and Human Services and Secretary of Labor to “take all appropriate and necessary steps with respect to general use respirators to facilitate their emergency use by healthcare personnel.” (Presidential Memorandum, March 11, 2020)

The President suspended immigration of all individuals who were in continental Europe within the previous 14 days, with some exceptions. (Proclamation, March 11, 2020)

The President declared the COVID-10 outbreak a national emergency (Proclamation, March 13, 2020).

The President authorized clinical laboratories within New York State to develop and perform tests used to detect COVID-19.  (Memorandum, March 13, 2020)

The President suspended immigration of all individuals who were in the United Kingdom or Ireland within the previous 14 days, with some exceptions. (Proclamation, March 14, 2020)

The President delegated to the Secretary of Health and Human Services his power under the Defense Production Act of 1950 to require performance of contracts or orders to promote the national defense over the performance of any other contracts or orders, to allocate materials, services, and facilities as deemed necessary to respond to COVID-19.  (Executive Order, March 18, 2020)

Potential Additional Actions

A U.S. Navy hospital ship is expected to arrive in April to provide 1000 additional hospital beds. This is in response to Governor Cuomo expressing concern for the shortage of hospital beds in New York State.

Congress is working on a third stimulus package that might include:

  • An appropriation of an additional $50 billion to the Exchange Stabilization Fund (ESF) to secure lending for U.S. passenger and cargo air carriers.
  • An appropriation of an additional $150 billion to secure lending or loan guarantees to assist other critical sectors of the U.S. economy experiencing severe financial distress.
  • Temporary suspension of the statutory limitation on the use of the (ESF) to guarantee programs for the U.S. money market mutual fund industry.
  • An appropriation of funds for two rounds of direct payments to individual taxpayers.
    • $250 billion issued beginning April 6
    • $250 billion issued beginning May 18
  • Creation of a small business interruption loan program with an appropriation of $300 billion, which the U.S. government would guarantee.
    • Loan terms:
      • Employers with 500 employees or less are eligible
      • Loans amounts are 100% of 6 weeks payroll, capped at $1540 per week per employee (approx. $80,000 annualized)
      • Employee compensation must be sustained for all employees for 8 weeks from the date the loan is disbursed.
      • S. financial institutions would be the lenders.
      • Lenders will verify the previous 6-week payroll amount and later verify that 8 weeks of payroll were pay from the date of disbursement to streamline the underwriting process.
    • Interest rate, loan maturity, and other related terms and conditions will be determined by the Treasury Department

The Secretary of the Treasury has announced that the due date for making federal income tax payment for persons with a payment due April 15, 2020 is postponed to July 15, 2020.  The applicable postponed payment amount is up to $10,000,000 for each consolidated group or each C Corporation that does not join in filing a consolidated return, and $1,000,000 for each individual regardless of filing status (single or married).

NEW YORK STATE ACTIONS

Banking

  • Mortgage relief is available for New Yorkers, including mortgage payments, based on financial hardship with no negative reporting to credit bureaus. Fees are also waived for overdrafts, ATMs and credit cards. (EO pending)  The Governor’s directives include:

Business Operations/ Events/ Public Gatherings

  • Businesses that require in-office personnel must decrease in-office workforce by 50%; essential services are exempt; some definition is provided in EO 202.6, but additional guidance is expected from Empire State Development. (EO 202.6) (Note: Governor has announced that another EO will be issued to increase reduction to 75%, EO Pending)
  • All indoor common portions of retail shopping malls with an excess of 100,000 square feet of retail space must close and stop access to the public effective 8pm March 19, 2020; stores located in shopping malls which have external entrances separate from the general mall entrance may remain open, but all interior entrances to common areas of the mall must remain closed and locked. (EO 202.3)
  • All places of public amusement (indoor and outdoor), including amusement rides, carnivals, amusement parks, water parks, aquariums, zoos, arcades, fairs, children’s play centers, funplexes, theme parks, bowling alleys, and family/children attractions are closed effective 8pm on March 19. (EO 202.5) (Note: Does not apply to public parks and open recreation areas.)
  • All large gatherings or events shall be cancelled or postponed if more than fifty (50) persons are expected, at any location in NYS until further notice. (EO 202.3)
  • All restaurants and bars in NYS must stop serving food or beverage on-premises effective 8pm on March 16, 2020, until further notice. Only sale for off-premise consumption will be permitted. (EO 202.3)
  • The NY State Liquor Authority will permit sale of alcohol for off-premises consumption with take-out or delivery. (EO 202.3)
  • All facilities authorized to conduct video lottery gaming or casino gaming must stop operating effective 8pm on March 16, 2020, until further notice. (EO 202.3)
  • All gyms, fitness centers or classes, and movie theatres must stop operating at 8pm on March 16, 2020 until further notice. (EO 202.3)
  • Waiting periods for unemployment insurance claimants are waived when claims arise from school or workplace closings, or as a result of the claimant’s isolation/quarantine in connection with COVID-19; Waiting periods are also waived for unemployment claims which arise from the closure of an employer in response to the March 12, 2020 mandate. (EO 202.1) (EO 202.5)
  • Legislation was enacted to guarantee paid leave for New Yorkers under mandatory or precautionary quarantine due to COVID-19. (Chapter 25 0f 2020)
  • Business corporations are permitted to take any action with the electronic consent of the members of the board or committee, when submitted by email and reasonably determined to be authorized from the member. (EO 202.5)

Collections

  • The Governor and Attorney General announced that the State will temporarily halt the collection of medical and student debt owed to the State of New York and referred for collection, for at least a 30-day period; New Yorkers with non-medical or non-student debt owed to New York State and referred to collections may apply to temporarily apply to halt collection of such debt.

Courts

  • The court may dispense with the personal appearance of a defendant and conduct an electronic appearance in connection with a pending criminal action if authorized by the chief court administrator after consultation with counsel and the defendant consents on the record. (EO 202.1)
  • Appearance by any parties to a fair hearing may be allowed or required by written, telephonic, video or other electronic means. (EO 202.1)

Elections

  • Section 8-400 of the Election law is temporarily suspended and altered for any election held on or before April 1, 2020. (EO 202.2)
  • Village elections scheduled for March 18, 2020 are postponed and impacted elected officials holding positions will remain in office until the new election is held. (EO 202.5)
  • Article 6 of the Election Law is modified to reduce the required number of signatures on petitions to 1.5% of enrolled voters, or 30% of the stated threshold. Gatherings of signatures are suspended effective Tuesday, March 17, 2020 at 5pm. (EO 202.2)

Government Operations

  • The State may purchase necessary equipment, materials, supplies, or services, without following the standard procurement processes, including the standard prompt payment policy. (EO 202.1)
  • All local government or political subdivisions in all counties must allow non-essential personnel to be able to work from home or take leave without charging accruals, except for essential personnel for local response to COVID-19. Non-essential personnel must total no less than fifty percent (50%) of the total number of employees across the entire workforce subdivision. (EO 202.4)
  • Any public body is permitted to meet and take legal action without meeting in person and to authorize remote meetings by conference call or a similar service. The public must be able to view or listen to the proceeding, and the meeting must be recorded and later transcribed. (EO 202.1)
  • Public hearings typically done in person may be held via conference call or similar electronic means, when recorded and later transcribed. (EO 202.5)
  • The public statement hearing requirements may be suspended provided when the public may file written comments until issuance of a file order. (EO 202.5)

Health & Mental Hygiene

  • Staff with the necessary professional competency, privilege and credentials to work in a facility in compliance with Public Health Law, and permitted in another state, are permitted work in such facility in New York State. (EO 202.5)
  • Reimbursement to Medical Indemnity Fund enrollees may be provided in primary residences where COVID-19 exposure is at issue, for costs related to cleaning and disinfection of the primary residence. (EO 202.5)
  • Guidance issued by the Department of Health (DOH) related to prevention and infection control of COVID-19 at nursing homes and adult care facilities is effective immediately and supersedes all conflicting guidance. (EO 202.5)
  • Patients effected by COVID-19 may be transferred to receiving Article 28 facilities. (EO 202.5)
  • Nursing homes receive individuals impacted by COVID-19 to perform comprehensive assessments of residents temporarily evacuated and forgo such prior to discharge to initial facility. (EO 202.5)
  • Nursing homes receiving individuals impacted by COVID-19 may obtain physician approvals for admission as soon as practicable after admission and may forgo such approval when returning to an initial facility. (EO 202.5)
  • Nursing homes receiving individuals impacted by COVID-19 may comply with admission procedures as soon as practicable and forego such procedures when returning patients to initial facilities. (EO 202.5)
  • Certified health home agencies, long term home health care programs, AIDS home care programs, and licensed home care services agencies may conduct in-home supervision of home health aides and personal care aids as soon as practicable after initial visit. (EO 202.5)
    • In-person and in-home supervision conducted by telephone or video is permitted.
  • Initial patient visits for certified home health agencies, long term home health care programs and AIDS home care programs may be made within 48 hours of receipt and acceptance of a community referral or return home from institutional placement. (EO 202.5)
  • The time within which home care services entities must submit information to the Home Care Worker Registry is extended. (EO 202.5)
  • Existing policies and procedures in a general hospital may be adopted at a new, temporary facility created to treat patients during the COVID-10 outbreak. (EO 202.5)
  • Construction, energy conservation, and other codes applicable to the following are waived: (EO 202.5)
    • Making temporary changes to physical plants, bed capacities, and related services.
    • Construction of temporary hospital locations and extensions.
    • The increase in and/or exceeding of certified capacity limits.
    • Establishment of temporary hospital locations and extensions.
  • OPWDD may take emergency action to suspend or limit a provider’s operating certificate. (EO 202.5)
  • Patients receiving OPWDD related services may temporarily deviate from their individual service plans related to day programming and community-based services or may be temporarily relocated when patient health or safety is at issue. (EO 202.5)
  • Visitors are restricted from OMH facilities and such facilities may restrict community outings for facility residents. (EO 202.5)
  • Abbreviated medication administration training of direct support professionals is permitted for programs and facilities certified pursuant to the Mental Hygiene Law. (EO 202.5)
  • Physicians licensed/registered and in current good standing in any state, but not licensed/registered to practice in New York State may practice in New York State without civil or criminal penalty related to lack of licensure or registration. (EO 202.5)
  • Any registered nurses, licensed practical nurses, nurse practitioners, and physician assistants licensed and in current good standing in any state in the United States are permitted to practice in New York State without civil or criminal penalty related to lack of licensure. (EO 202.1)
  • Hospitals are permitted to make temporary changes to physical plant, bed capacities, and services provided, upon approval of the Commissioner of Health. (EO 202.1)
  • Construction applications for temporary hospital locations and extensions are permitted for approval by the Commissioner of Health absent recommendation from the health systems agency or the Public Health and planning Council. (EO 202.1)
  • Clinical laboratories may operate temporary collecting stations to collect specimen from individuals suspected of COVID-19 infection. (EO 202.1)
  • Article 16 (Mental Hygiene Law) certified facilities are permitted to increase and/or exceed certified capacity limits without following site selection procedures and/or notifying local government units upon OPWDD approval. (EO 202.1)
  • Article 16 providers may utilize staff in the most effective means possible to transport individuals receiving OMH related services, while taking reasonable health and safety measures. (EO 202.1)
  • Mental health facilities may to take actions to the extent necessary to rapidly discharge, including conditionally discharge, transfer, or receive patients, as approved by OMH, including safe transfer and discharge practices. (EO 202.1)
  • Patients covered by Section 29.13 of the Mental Health law may temporarily receive services from different providers, whole immediate priority is to stabilize the individual, address acute symptoms, and provide supports including medication and stress relief when it is impossible to comply with treatment plan requirements. (EO 202.1)
  • General hospitals and nursing homes treating patients during the emergency are permitted to rapidly discharge, transfer, or receive patients. (EO 202.1)
  • The Commissioner of Health may approve the establishment of temporary hospital locations and extensions without following standard approval processes. (EO 202.1)
  • The Department of Health (DOH), the Office of Mental Health (OMH), the Office of Addiction (OASAS), and the Office for People with Development Disabilities (OPWDD) permit: (EO 202.1)
    • Additional telehealth provider categories and modalities
    • Permit other types of practitioners to deliver services within their scopes of practice
    • Authorize the use of certain technologies for the delivery of health care to establish patients.
  • New regulations from the Department of Financial Services (DFS) will free up staff and speed hospital admission and discharge processes for 90 days. (Governor announced on 3/19/2020; regulations are pending)
    • DFS will direct insurance companies to allow scheduled surgeries and admissions without insurer preapproval and to allow inpatient hospital services without insurer approval.
    • Insurers will pay inpatient hospital services and emergency services without waiting to review for medical necessity.
    • Patients may be discharged to a rehabilitation center or nursing after an inpatient hospital stay without insurer approval.
    • Self-funded plans are encouraged to adopt the same provisions.
    • See also DFS Guidance to Department of Financial Services Regulated Insurance Regarding Support for Consumers and Businesses Impacted by Novel Coronavirus (COVID-19) 03/19/2020 https://www.dfs.ny.gov/industry_guidance/circular_letters/cl2020_07

Human Services & Education

Schools

  • All NYS schools must close no later than Wednesday, March 18, 2020 for two (2) weeks, ending April 1, 2020. (EO 202.4)
  • School districts must develop plans for alternative instructional options, distribution and availability of means, and child-care- especially as related to first responders and health professionals. The deadline for specific districts was midnight, March 17, 2020.[1] (EO 202.1)
  • The reduction of school aid due to the failure of a school to meet instructional requirements is waived. (EO 202.1)

Child Care

  • Statutory and regulatory provisions which establish background check requirements for child day care are suspended. (EO 202.5)
  • School age child care programs operated in a school or entity with experience providing child care and located in a school providing elementary or secondary education is exempt from OCFS regulations. (EO 202.5)
  • Child care regulations which set the ages of children who can be served, and the standards of care have been suspended. (EO 202.1)
  • Child care staff qualification requirements are suspended. (EO 202.1)
  • Capacity limits for family and group family day care programs and standards for staff/child ratios in all child care modalities are suspended. (EO 202.1)
  • Some training and inspection requirements for child day care are waived. (EO 202.1)
  • Fees paid for statewide central register of child abuse and maltreatment database checks are waived. (EO 202.1)
  • Financial eligibility standards, the reimbursement requirements, and timeliness requirements for the provision of child care services, including payment for absences, are waived. (EO 202.1)

Expanded In-Home Services for the Elderly Program (EISP)

  • The required assessment to be conducted prior to or within 10 days of initiation of home delivered meals is waived. (EO 202.1)
  • The assessment required prior to the initiation of services after the completion of the screening intake is waived. (EO 202.1)
  • Care plans may remain in effect for a period exceeding 12 months when the plan would otherwise experience during the COVID-19 emergency. (EO 202.1)
  • The requirement for reassessments to be conducted every 12 months or within 5 days of a change of circumstances is waived.

Once again, in the event that you are interested in obtaining additional information about any of the foregoing items, please contact us at (518) 313-1450 or AlbanyNews@FarrellFritz.com.

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[1] Nassau County, Suffolk County, Westchester County and City of New York submissions were due to the State by midnight March 17, 2020.

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