NY Updates Order to Protect Nursing Home Residents

New York updated its executive orders to protect nursing home residents during this COVID-19 pandemic.  It is widespread knowledge that nursing homes that care for the elderly and disabled have been disproportionately impacted by COVID-19. In New York, more than 5,300 nursing home residents have died from COVID-19, and 22 nursing homes have suffered at least 40 deaths.

Previously, the Governor had issued an executive order requiring nursing homes to report COVID-19 test results and deaths to patients’ family members.  But the nursing home deaths continued, and the Governor began an investigation into nursing homes’ handling of COVID-19.  Most recently, to address this problem, the Governor issued an executive order setting forth new rules for nursing homes.

Patients Must Test Negative for COVID-19 for Nursing Home Admission

A critical change is that New York has effectively reversed its policy of requiring nursing homes to take patients who tested positive for COVID-19 but had been determined to be “medically stable.”  The prior rules also prohibited nursing homes from requiring patients to be tested for COVID-19 upon admission or readmission or denying anyone admission on the basis of a COVID-19 diagnosis, whether actual or suspected. The cumulative effect of these rules was the influx of COVID-19 positive patients into nursing homes, with their vulnerable elderly and disabled populations, and the rapid spread of COVID-19 within nursing homes.

Under the new order, hospitals may only discharge to a nursing home those patients who have tested negative for COVID-19 and then, only if the nursing home has certified that it is able to properly care for the patient.

Nursing Home Workers Must Be Tested & Wait to Return to Work if COVID-19 Positive

In addition, nursing home staff will be required to take two diagnostic tests each week, and positive results must be reported to the Department of Health. Violations of this rule are subject to daily penalties of between $2,000 to $10,000 (for repeat violations).  Staff that refuse testing may not continue to work.

These changes were made shortly after another policy reversal by the New York State Health Commission related to when nursing home workers may return to work after a COVID-19 diagnosis.  Previously, New York’s policy was aligned with that of the Centers for Disease Control and permitted workers who tested positive for COVID-19 but were asymptomatic to return to work in nursing homes.

On April 20, 2020, however, New York changed the rule to require nursing home employees who test positive for COVID-19 and were asymptomatic to wait 14 days from first positive test date before returning to work.  Symptomatic nursing home employees must wait to return to work until 14 days after the onset of symptoms, and after at least 3 days (72 hours) since the resolution of fever without the use of fever-reducing medications and improvement in respiratory symptoms.

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