COVID-19 Update May 1, 2020

MSSNY Legislative Podcast

New York State COVID-19 Stats

NYSDOH COVID-19 Tracker –

Highlights: Gov. Cuomo’s Press Conference Today

  • New York reported 289 deaths related to COVID-19 in the past 24 hours. The rate of hospitalizations and net change of hospitalizations continue to trend downward, while the number of new COVID-19 patients remains flat.
  • Overall hospitalizations in the state have been well below original projections made at the outset of the pandemic. Cuomo said, by practicing social distancing, New Yorkers likely helped save close to 100,000 lives.
  • The next steps the state will need to take involve addressing the new daily cases – which have hovered between 950-1,100 for several days.
  • The majority of new cases are in the downstate region.
  • Schools across New York will remain closed for the remainder of the academic year.
  • K-12 and college facilities will continue to provide distance learning for rest of academic year
  • The governor says schools will still be required to execute meal provision plans, as well as assist in childcare options for essential workers.
  • Schools and colleges will be required to come up with plans to eventually reopen in ways that do not put students and essential workers at risk; those plans will need to be approved by the state before they can be carried out.
  • It is not yet clear when a decision will be made on the 2020-2021 academic year, but he added that schools should start planning sooner than later.
  • Some businesses may be able to reopen in some regions of the state depending on specific factors, such as the virus’ local impact, around May 15.

Gov. Permits Limited Resumption of “Elective” Surgeries; MSSNY Objects to ASC Exclusion
Governor Cuomo put forth an Executive Order this week permitting the resumption of elective surgery in 35 counties across upstate New York, where there is less of a chance of a coronavirus surge, including Monroe and Onondaga counties.  Of particular concern was the limitation on resumption of elective surgery in these counties to hospitals only, not Ambulatory Surgery Centers and office-based surgery locations that are often owned by physicians.

MSSNY President Dr. Art Fougner was quoted in the Utica Observer-Dispatch about the adverse impact of this limitation on patients obtaining needed care across Central New York, and issued a statement today (LINK) calling for this arbitrary exclusion to be eliminated so that patients have a choice in these counties as to where they can receive these needed surgeries.  Physicians can send a letter to the Governor expressing their concerns here:

The guidance from DOH permitting the limited resumption of elective surgeries does provide important clarification to perhaps address some confusion as to what specifically was prohibited.  The guidance notes that the prohibition does not prevent hospitals, ASCs and OBS from performing surgeries and procedures related to the diagnosis of cancer such as lumpectomies and biopsies, the treatment of intractable pain, or other diagnostic and treatment services for highly symptomatic patients. It also includes a grid of examples to help guide treatment or delay decisions.

Medicare to Increase Payments for Audio-Only Telehealth
In response to advocacy by organized medicine, the Centers for Medicare & Medicaid Services (CMS) announced this week that it will be increasing payments for audio-only telephone visits between Medicare beneficiaries and their physicians to match payments for similar office and outpatient visits.

According to the American Medical Association (AMA), this would increase payments for these services from a range of about $14-$41 to about $46-$110, and the payments are retroactive to March 1, 2020.  This is a major victory for organized medicine that will enable physicians to care for their patients, especially their elderly patients with chronic conditions who may not have access to audio-visual technology or high-speed Internet.

NYSDOH Weekly Update for Physicians on YOUTUBE
April 30: Weekly Update to Healthcare Providers

Watch the webinar on YouTube.

Purpose: The purpose of this weekly publication is to provide healthcare providers in New York State with a consolidated update of guidance released by the New York State Department of Health (NYSDOH) related to the COVID-19 pandemic response. This will show only current guidance for any given topic and will be updated to reflect new guidance.

As a reminder, all advisories and informational messages (including webinar invitations) are distributed through the Integrated Health Alerting Network System (IHANS), an application housed on the Health Commerce System (HCS). If you are not receiving IHANS notifications, please work with your site’s HCS coordinator. Additional COVID-19 resources may be found on the NYSDOH webpage under Information for Healthcare Providers.

Recordings of COVID-19 Weekly Healthcare Provider Updates are also available on the NYSDOH

Paycheck Protection Program (PPP) Update
Have you applied for the PPP small business forgivable loan program yet?  According to as of 5:00 PM yesterday more than 960,000 loans had been approved totaling greater than $90 billion. The total number of lenders involved in processing these transactions has been 5,300 so far. Last week Congress approved an additional $310 billion for the program.

Yesterday, the SBA notified borrowers and lenders that certain provisions would be put in place to favor lending from smaller institutions. The text of the notice:

Paycheck Protection Program (PPP) Lending Operations Update – Wednesday, April 29, 2020

SBA and Treasury value all lenders and their small business customers.

To ensure access to the PPP loan program for the smallest lenders and their small business customers, starting at 4 p.m. today EDT through 11:59 p.m. EDT, SBA systems will only accept loans from lending institutions with asset sizes less than $1 billion.

Please note, lending institutions with asset sizes less than $1 billion will still be able to submit PPP loans outside of this time frame. Please also note that lenders with asset sizes greater than $1 billion will be able to submit loans outside of today’s 4:00 PM -11:59 PM EDT reserved processing time.

This reserved processing time applies today April 29, 2020. SBA and Treasury will evaluate whether to create a similar reserved time again in the future.

SBA and Treasury continue to monitor loan system performance and will continue to provide frequent updates to the lending community.

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Garfunkel Wild One-Hour Webinar: The Enforceability of Employment Contracts During the COVID-19 Pandemic on Monday May 4 @12 noon-1pm

Speakers:  Andrew L. Zwerling and Roy W. Breitenbach

Garfunkel Wild’s Andrew L. Zwerling and Roy W. Breitenbach will present the webinar “The Enforceability of Employment Contracts During The COVID-19 Pandemic” on May 4, 2020.

Among the many impacts of the COVID-19 pandemic has been the steep rise in concern over the viability of employment contracts. Businesses of all types, in all industries, have experienced business and financial disruption of profound magnitude that has compelled them to take action of various types that, on their face, violate the plain language of employment contracts of which they are a part.

Salary reductions, work reductions, terminations without requisite notice, job furloughs and similar actions that on their face violate contractual obligations have become commonplace as businesses try to stay viable, if not operationally functional, during the COVID-19 crisis. This raises certain obvious questions: despite running afoul of the plain language in employment contracts, are such actions nonetheless proper given the impact of the pandemic? Are parties obligated to perform their obligations under employment contracts given the constraints imposed by governmental orders and other fallout from the pandemic or are they discharged from such obligations? Does it matter that there is a force majeure provision in my contract? What happens if the employment contract does not have a force majeure clause?

We will conduct a webinar that will address these issues and others, including the applicability of doctrines of impossibility of performance, impracticability of performance and frustration of performance, and the effect of force majeure clauses.

Click Here To Register

When States Ordered Nursing Homes to Take COVID-19 PTs, Many Put in Danger
On March 29, as New York and other states began ordering nursing homes to admit medically stable residents infected with the coronavirus, national trade groups warned it could unnecessarily cost more lives.

The health directives put “frail and older adults who reside in nursing homes at risk” and would “result in more people going to the hospital and more deaths,” the American Health Care Association and affiliates said at the time. A month later, it appears government officials should have heeded the dire call to pursue different pandemic emergency plans.

The deadly virus has spread like wildfire through many nursing homes across the Northeast, and state officials are scrambling to better protect those most vulnerable to COVID-19, the disease caused by the virus.

The death toll is devastating, according to interviews with nursing-home officials, patients’ families, health-care advocates, government officials and from an examination of state records by the USA Today Network Atlantic Group, a consortium of 37 Gannett-owned daily newspapers across the Northeast.

  • At least 3,043 people have died inside New York nursing homes due to COVID-19 complications, or about 17% of the state’s 18,015 deaths as of Wednesday.
  • In Pennsylvania, about 65% of coronavirus deaths were nursing-home residents, and New Jersey had 3,200 residents of long-term care homes die due to complications from the virus, about 40% of the statewide total.
  • About 58% of the deaths in Delaware lived in nursing homes, and 46% of the fatalities in Maryland were at nursing homes, prompting Gov. Larry Hogan to order residents and staff members at nursing homes be tested for coronavirus.

Meanwhile, advocates and residents’ relatives have criticized state and federal officials, as well as some nursing homes, for failing to address the crisis as deaths mounted.

“To have a mandate that nursing homes accept COVID-19 patients has put many people in grave danger,” said Richard Mollot, executive director of the Long Term Care Community Coalition in New York. (LoHud, May 1)

Cuomo to Order Insurers to Offer Free Mental Health Services for Essential Workers
Essential workers in New York can soon access free mental health services through their insurance plans, Gov. Andrew Cuomo said today.

The governor said he is directing all insurers to waive any cost sharing, co-pay and deductibles for frontline workers seeking mental health services during the Covid-19 pandemic.

“Too many people, too many families have said to me, ‘Well, I would go for services but I don’t want to pay the cost, I can’t afford it,’” Cuomo said at a morning news conference. “That’s gone. There is no cost to get mental health services. Just wipe that reason away and get the help that you need.”

Cuomo also announced a new emotional support hotline for essential workers. If you need support, call the New York State Emotional Support Hotline at 1-844-863-9314.

NYSDOH Mirrors CDC’s Guidance for Healthcare Facilities’ Employees
On March 16, 2020, the Centers for Disease Control and Prevention (CDC) issued guidance to address employees of healthcare facilities, including nursing homes, suspected of or confirmed to be positive for the COVID-19 virus (Criteria for Return to Work for Healthcare Personnel with Confirmed or Suspected COVID-19 (Interim Guidance)). Under the CDC guidance workers could return to work at a nursing home:

  • “At least 3 days (72 hours) have passed since recovery defined as resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms (e.g., cough, shortness of breath); and,
  • At least 7 days have passed since symptoms first appeared.”

The CDC updated their guidance to address asymptomatic workers thereafter.

New York State Department of Health’s guidance mirrored the CDC’s position – however, going forward we will no longer adhere to CDC’s standard on this issue, and will instead require that nursing home employees who test positive for COVID-19 but remained asymptomatic are not eligible to return to work for 14 days from first positive test date in any situation and will no longer adhere to the shorter CDC timeframe. Symptomatic nursing home employees may not return to work until 14 days after the onset of symptoms, provided at least 3 days (72 hours) have passed since resolution of fever without the use of fever-reducing medications and respiratory symptoms are improving. PDF here

Nursing homes must only accept and retain those residents for whom the facility can provide adequate care. 


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New York to Hire ‘Army of Tracers’ to Combat Coronavirus
New York will hire up to 17,000 contact tracers as part of a statewide effort to combat the novel coronavirus pandemic by tracking down people who have gone near those infected by Covid-19. New York Gov. Andrew Cuomo said at a Thursday press conference that the state needs at least 30 tracers for every 100,000 people to follow the path of those infected and determine whether their contacts should be isolated. (WSJ 4/30)


·       Understanding and Addressing Sources of Anxiety Among Health Care Professionals During the COVID-19 Pandemic