Situation Report | December 14, 2020
HCA continues to rebut state officials’ view that New York’s laws or regulations stand in the way of providers fully exercising federal authority that allows non-physician practitioner (NPP) orders for home care.
HCA has been pursuing every avenue to reconcile this issue ever since the CARES Act, passed by Congress in March, permitted NPPs to order home care — a change that was subsequently implemented federally by the U.S. Centers for Medicare and Medicaid Services (CMS).
But New York providers remain in limbo amid questions about the state’s interpretation of its own laws and regulations. To date, DOH has not formally affirmed or denied state authority for NPP orders but has reinforced various roadblocks through informal communications.
The issue arose again after the state Department of Health (DOH) replied last week to a home care provider’s inquiry through the state’s general COVID-19 e-mail account — yet again, absent an official state guidance document to the entire statewide provider community.
The provider shared the exchange with HCA. In response to DOH, HCA President Al Cardillo cited long-ago changes to Section 3602 of the public health law that explicitly provide authority for NPPs to order home care services, consistent with federal authority. “Moreover, NYS Health Code Title 10 parts 763 and 766 also recognize NPPs to order home care, consistent with federal authority,” he added, stressing that the public health law changes, in particular, were made “at the recommendation of DOH as a Medicaid savings and necessary health efficiency reform.”
In this exchange, as elsewhere, HCA continues to urge that state officials revisit and reissue the state’s position on NPP orders, based on existing codes and regulations that permit them, and to use the Governor’s emergency waiver authority, provided by the Legislature, “to waive any residual inconsistent provisions” given the change in federal law.
This flexibility is all the more important when considering that the federal changes now also allow NPPs to conduct, sign and document federally required face-to-face encounters for patients, we noted.
HCA awaits DOH’s reply and will continue to press the state to prioritize affirmation of this now-federally permitted practice in the system.