In our prior bulletin, we discussed the likely lack of civil immunity from Justice Center enforcement actions conferred in other contexts by Executive Order 202.10. However, other Executive Orders provided some relief in the form of certain suspended or waived requirements applicable to facilities licensed by the Office of People with Development Disabilities (OPWDD).
By several Executive Orders, Governor Cuomo temporarily suspended or waived certain requirements to help OPWDD-licensed facilities navigate the difficulties of providing services during the COVID-19 pandemic. By extension, OPWDD providers should find insulation from what, in the absence of the waivers, would otherwise have caused Justice Center enforcement actions.
Staffing
Direct support professionals are deemed essential, and their services are vital for the care of individuals with development disabilities. In an already challenging pre-COVID world of attracting and retaining qualified direct care/service providers, Executive Order 202.13 provides staffing waivers. The goal of these waivers is to address anticipated staff shortages caused by COVID, such as direct illness of staff or their family members; requiring absence due to care obligations or cautionary quarantine; illness of service recipients causing an uptick in staff unwilling to show up for work at the infected location; systemic illnesses in other facilities requiring additional staff coverage; or simple fears of staff traveling to work, especially in the urban areas which rely heavily on public transportation. The waivers streamline the onboarding process, particularly with background checks and training.
Pursuant to Executive Order 202.13, current employees who have already undergone background checks for one agency are permitted to work at different programs or facilities without undergoing a new background check.[1] Providers have also been granted discretion to permit already qualified individuals who are not listed on the Staff Exclusion List to work unsupervised while an updated background check is completed. Additionally, Executive Order 202.11 states that programs can provide accelerated training. As the OPWDD guidance states, agencies should consider modifying the delivery format for training. For instance, the annual training recertification for current employees has been extended by 90 days to relieve operational shortages caused by training.
Nursing Care
Executive Order 202 grants nurses expanded powers, particularly related to testing for COVID-19. Additionally, individuals, such as patient care technicians, can now perform nursing tasks under the supervision of a nurse. For example, OPWDD stated that Licensed Practical Nurses (LPNs) can provide intravenous therapy in OPWDD group homes under the supervision of a registered nurse. Prior to COVID-19, LPNs were allowed to perform intravenous therapy under registered nursing supervision. This guidance enhances the flexibility and discretion of registered nurses to delegate such tasks to LPNs. OPWDD, in its guidance materials, has also encouraged facilities to expand telehealth usage to further increase staffing flexibility.
Facilities
With approval of the Commissioner of Health or the Commissioner of OPWDD, a facility can temporarily construct extensions and increase or exceed certified capacity limits without notification to the local governmental unit (Executive Orders 202.28, 202.11, 202.5 and 202.1). Programs also can send residents to uncertified facilities with the approval of the Commissioner of OPWDD. This change can allow OPWDD facilities to isolate individuals infected with COVID-19 away from the rest of its residents and send residents elsewhere while a facility is cleaned after an outbreak.
Although providers availing themselves of these waivers are not required to obtain pre-approval, we recommend that providers involve the relevant state agencies and communicate with them in writing as soon as practical about the adjustments implemented per the waivers, to ensure and insulate against future issues.
Caution should be taken as well, because nothing prevents the Justice Center from investigating and pursuing enforcement actions on whether the adjustments were proper and/or consistent with preventing (and/or reporting) neglect and abuse of service recipients.
[1] This applies for OCFS licensed or certified programs, OASAS certified, funded or authorized programs, OMH or OMH licensed, funded or approved programs as well.
