Staff Testing Requirements in Question with End of State Emergency

The lifting of the state's public health emergency (PHE) and the rescission of related executive orders (EOs) have called into question both the requirement of routine staff testing in nursing homes and adult care facilities (ACFs) and the flexibilities allowed during the PHE to facilitate COVID-19 testing. With the rescission of the EO requiring routine staff testing, there is currently no legal authority for the State to enforce this requirement. However, the Executive Branch has signaled that they will be issuing new guidance on testing and other issues. Moreover, the Department of Health's (DOH) COVID-19 mailboxes have responded to facility inquiries by indicating that the PHE staff testing guidance remains in effect, notwithstanding the rescission of the EOs. Although there is no authority for the State to enforce routine staff testing requirements, as of the time of this article's writing, facilities should be prepared to adjust staff testing procedures on short notice in response to new guidance expected from DOH. For nursing homes, Centers for Medicare and Medicaid Services (CMS) guidance governing routine staff testing, as well as outbreak testing, remains in effect.

In addition to rescinding the EO requiring routine screening tests of staff, the Governor also rescinded the orders that allowed unlicensed staff to collect COVID-19 specimens and permitted the collection and analysis of specimens without an order or prescription. The rescission of these orders appears to have eliminated these exemptions. Facilities that use contracted clinical labs for COVID-19 testing may be asked to present prescriptions for staff and resident testing. Facilities that use their own limited service labs may need to issue orders from an authorized ordering source (which may be the lab director) to carry out testing. We are working with DOH and the State Education Department (SED) to address these issues. In the meantime, SED has indicated that it is exercising enforcement discretion and is urging providers to make good faith efforts to come into compliance as soon as possible.

Contact: Karen Lipson, klipson@leadingageny.org, 518-867-8838