Regulatory Waivers and the Status of State Executive Orders

Situation Report | August 30, 2021 

In light of the increasing number of Delta Variant COVID cases, members have expressed concern over recent communications from the state Department of Health (DOH) indicating that most state regulatory waivers relating to home care and hospice agencies are no longer in effect. This seems contrary to good practices related to patient care during a still evolving pandemic. 

New York State Executive Law Section 28 provides for the Governor to declare an emergency when a disaster has occurred or is imminent. On March 24, 2020, the Governor issued Executive Order 202, which declared the COVID-19 State of Emergency.  

Section 28 further indicates that “such order or orders shall remain in effect for a period not to exceed six months or until rescinded by the governor, whichever occurs first. The governor may issue additional orders to extend the state disaster emergency for additional periods not to exceed six months.” 

Executive Order 202 was extended numerous times throughout 2020 and 2021. Executive Orders were used to suspend laws, regulations and to impose certain limitations, such as quarantine and social distancing restrictions during the COVID-19 public health emergency. The Executive Orders provided flexibility and helped to ensure patients, staff and the public’s health and safety during these uncertain times.  

Executive orders are an important tool in addressing and managing health crises and we have become familiar with this legal tool over the past 18 months. However, providers should understand that the powers granted by the law are time limited to ensure there is minimum deviation from regulatory requirements.  

On June 25, 2021, the Governor signed Executive Order 210 which rescinded the declarations found in Executive Order 202 (which declared the COVID-19 State of Emergency). Through the formal action of declaring the state of emergency over, the executive powers that permitted waiving regulations ended and therefore the Department of Health has taken action to discontinue many of the regulatory relief measures and restore compliance with the existing regulations.  

In light of the fact that providers will require time to effectively restart activities that may have been suspended, the Dear Administrator letter issued on August 23, 2021 describes under what limited circumstances the Department will continue to exercise enforcement discretion. Although the Department has not yet specified a date for a resumption of services to be completed, providers have been informed to develop a plan that demonstrates the resumption of routine services absent the regulatory waivers. This plan should be in a format that can be reviewed and understood by a surveyor. 

HCA will continue to advocate for regulatory relief despite the end of the state Public Health Emergency.