In December, 2021, New York Governor Kathy Hochul signed two new bills into law which will greatly expand coverage under the State’s Medicaid program.
The first new law, which will take effect on March 21, 2022, will amend the New York Social Services Law to provide that the care and services provided in New York by licensed clinical social workers will be eligible for coverage under the Medicaid program. Once the law is effective, licensed clinical social workers will be able to bill Medicaid directly for their services within their scope of practice. Licensed clinical social workers in New York have a broad scope of practice in the State and are authorized to practice mental health counseling, marriage and family therapy, creative arts therapy, and psychoanalysis. As a result, this new law should assist in greatly broadening access for individuals to critical mental health services across the State – especially at this critical time when so many individuals have been adversely impacted by the COVID-19 pandemic.
The second, related new law, which will take effect on March 29, 2022, will amend the New York Social Services Law to permit mental health practitioners licensed under Article 163 of the New York Education Law to bill Medicaid directly for their services within their scope of practice.
Mental health practitioners include mental health counselors, marriage and family therapists, creative arts therapists, and psychoanalysts. It is significant to point out that this new law does not modify or expand the existing scope of practice of any of these mental health practitioners under New York law. As noted in the New York State Senate Memorandum in support of this new legislation, one of the main justifications for enacting this new legislation is to prevent “undue hardship for individuals, families, and communities” and to address the existing “lack of transparency in Medicaid billing.”
Our Firm has extensive experience counseling health care providers on scope of practice, Medicaid eligibility, and other compliance requirements, as well as preparing and implementing applicable policies. If you have any questions related to this Legal Briefing, please contact any member of our Firm at 876-946-1361. Please note that any embedded links to other documents may expire in the future.
COVID-19 vaccine mandates have become the legal issue of the day, on both the federal and state stages. These requirements are already impacting millions of Americans. Here is a summary of some of the forthcoming mandates –
On the federal side, President Biden recently signed two executive orders as follows:
The first order, Executive Order on Requiring Coronavirus Disease 2019 Vaccination for Federal Employees, requires federal agencies to implement a program to require COVID-19 vaccinations for each agency’s employees. Federal employees need to be fully vaccinated by November 22, 2021. The Safer Federal Workforce Task Force was tasked to issue guidance regarding this mandate and some information has already been released/updated, with more details forthcoming as noted at the following site: What’s New? | Safer Federal Workforce
The second order, Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors, is intended to ensure that parties contracting with the federal government provide COVID-19 safeguards to their workers. The Order directs the Federal Acquisition Regulatory Council to create a contract clause that will become part of federal contracts that will require contractors and subcontractors to comply with guidance from the Safer Federal Workforce Task Force. The guidance is forthcoming regarding this Order and is expected to require that employees of contractors and subcontractors be vaccinated against COVID-19 (unless an exemption applies).
In addition to the above Executive Orders, President Biden also has directed the Occupational Safety and Health Administration (“OSHA”) to develop a standard requiring all employers with 100 or more employees to ensure that their workforces are fully vaccinated or requiring weekly testing for any unvaccinated workers. This new Emergency Temporary Standard will be issued in the next few weeks.
Also, President Biden’s Administration recently announced that it will require COVID-19 vaccinations for staff within all Medicare and Medicaid-certified facilities. The Centers for Medicare & Medicaid Services (“CMS”) and the Centers for Disease Control (“CDC”) will be working on emergency regulations requiring staff vaccinations for skilled nursing facilities, hospitals, ambulatory surgical settings (such as Federally Qualified Health Centers), home health agencies, durable medical equipment suppliers, hospice providers, clinical laboratories, ambulances, and other providers. CMS is in the process of developing an Interim Final Rule with Comment Period, which is anticipated to be released this October, 2021.
Furthermore, on September 14, 2021, the U.S. Citizenship and Immigration Services announced that applicants subject to the immigration medical examination (which is required for permanent residency) must be fully vaccinated against COVID-19 before the civil surgeon can complete an immigration medical examination and sign the necessary immigration form. More information on this mandate can be found at the following site: COVID-19 Vaccination Required for Immigration Medical Examinations | USCIS
In addition to these federal mandates, the New York State Department of Health (“DOH”) recently issued emergency regulations requiring that many types of healthcare facilities mandate personnel to be fully vaccinated against COVID-19. At least the first dose of the vaccine must be obtained by staff at hospitals and skilled nursing facilities by September 27, 2021, and by staff at other covered entities (such as assisted living providers, hospice providers, diagnostic and treatment centers, and certain home health agencies) by October 7, 2021.
While the original proposed emergency regulations contained exemptions from this mandate for both medical and religious reasons, the final version of the emergency regulations eliminated the proposed religious exemption, prompting a swift legal response. Since the new regulations were announced in late August, 2021, multiple lawsuits have been filed to strike down the new mandate, with one lawsuit from the United States Federal District in the Northern District of New York in particular focusing on the elimination of the religious exemption – Dr. A v. Hochul. The Judge in this case on September 14, 2021 issued a temporary restraining order preventing DOH from enforcing this vaccine mandate in instances where an individual has a valid claim for a religious exemption. Most providers are now accepting applications for a religious exemption, while also cautioning employees that the law in this area is in transition. On September 20, 2021, the temporary restraining order was extended to October 12, 2021 and the Judge will issue a written decision on the request for a preliminary injunction on or before October 12, 2021.
These federal and state vaccine mandates have all raised an endless supply of legal and practical issues, including what an employer should do if an employee refuses the vaccine. For example, if the employee is terminated as a result of such a refusal, will he/she be entitled to unemployment benefits? Will he/she lose their vacation/PTO time? Also, how will employers deal with potential staffing shortages? These issues will be addressed more fully in the coming weeks and months.
Our Firm has extensive experience counseling employers and businesses on employment and labor law issues, as well as preparing and implementing applicable employee policies. If you have any questions related to this Legal Briefing, please contact any member of our Firm at 876-946-1361. Please note that any embedded links to other documents may expire in the future.
On June 21, 2021, the COVID-19 Emergency Temporary Standards (“ETS”) issued by the Occupational Safety and Health Administration (“OSHA”) went into effect. These mandatory standards apply to healthcare settings and protect employees in hospitals, nursing homes, assisted living facilities, emergency responders, home healthcare, ambulatory care facilities, and settings where employees provide healthcare/support services. The ETS contain comprehensive protections for healthcare workers, acknowledging that they face the highest health and safety risks associated with COVID-19.
The ETS imposes various planning, cleaning, screening, and safety requirements on healthcare employers. Some of the requirements include:
Developing a COVID-19 plan that includes designation of a safety coordinator, employee involvement, hazard assessment, and policies to mitigate transmission risks;
Screening and managing patients and non-employee visitors through designated points of entry;
Implementing standard and transmission-based precautions based on CDC guidance;
Distributing and ensuring employees wear required personal protective equipment (“PPE”) ;
Revising aerosol-generating procedures on a person with suspected or confirmed COVID-19 to ensure minimal risk of transmission;
Continuing implementation of physical distancing and barriers;
Ensuring proper ventilation systems are in place and routinely inspected and maintained;
Daily employee health screening;
Employee notification of COVID-19 positivity in the workplace;
Removing COVID-19 positive employees from the workplace;
Providing paid leave to employees for vaccination and recovery from any adverse vaccine reactions;
Training employees on COVID-19 facts, policies/procedures, rights and protections under OSHA, process for raising health/safety concerns, and anti-retaliation protections;
Implementing the ETS requirements at no cost to employees; and
Recordkeeping and reporting requirements for workplace-related COVID-19 positivity, hospitalizations, and fatalities.
The ETS does carve out some exceptions to these new standards. Some requirements, such as masking, distancing, and barriers are not required for vaccinated employees in certain defined areas. Additionally, some hospital ambulatory care settings are exempt from ETS requirements if certain pre-requisites/conditions are met.
Healthcare employers must ensure compliance with most of the above requirements by July 6, 2021, and for physical barriers, ventilation, and training no later than July 21, 2021.
For non-healthcare employers, OSHA updated its workplace guidance on June 10, 2021. The updated guidance focuses protections on unvaccinated and at-risk employees in non-healthcare workplace settings, with relaxation of special protections for vaccinated employees/well-defined workplace areas. The updated guidance largely mirrors the requirements of the ETS, however, the updated guidance is only recommended (as opposed to mandatory).
The updated guidance recommends that employers take the following actions to protect unvaccinated and at-risk employees from COVID-19:
Grant paid leave for vaccination;
Instruct employees to stay home if they have close contact with a COVID-positive individual or exhibit symptoms themselves;
Implement physical distancing through barriers, telework, flexible work hours, staggered shifts, use of technology for meetings, etc.;
Provide PPE, face coverings, and/or respirators;
Ensure proper ventilation systems are in place and routinely inspected and maintained;
Perform routine cleaning and disinfection in compliance with mandatory OSHA standards and CDC guidance when a suspected or confirmed COVID-19 case enters the workplace;
Recordkeeping and reporting requirements for workplace-related COVID-19 positivity, hospitalizations, and fatalities in accordance with mandatory OSHA requirements; and
Train employees on COVID-19 facts, policies/procedures, rights and protections under OSHA, process for raising health/safety concerns, and anti-retaliation protections.
In addition to these general recommendations, OSHA has added additional recommendations for “higher-risk” workplaces where unvaccinated and at-risk employees have close contact, for a long duration, in shared areas (such as manufacturing, meat/poultry/seafood processing, and high volume retail and grocery). Some additional steps that employers should take to reduce the risk of infection in high-risk workplaces include:
Staggered break times or creating additional designated break areas;
Staggered shift arrival and departure times;
Cues to remind of social distancing and hygiene requirements (i.e., floor markers, signs); and
Improving ventilation in accordance with CDC and OSHA guidance.
As states begin to reopen, employers should be cognizant of their duties to provide employees with safe and healthy workplaces, and to comply with all applicable federal, state, and local requirements.
Our team has extensive experience in counseling businesses on labor and employment matters and regulatory compliance. If you have any questions about this Legal Briefing and whether your business meets OSHA requirements, please contact any member of the Firm at 876-946-1361. Please note that any embedded links to other documents may expire in the future.