Notes from NYS Council Thursday morning call plus Article 16 Order Info

August 20, 2021

Below are my notes from yesterday’s NYS Council weekly Member Support call.  Below that I pasted the email I sent a few moments ago to all members.  It is that a companion to the information directly below.

NYS Council Weekly Member Support and Public Policy Call (Part One)

Thursday, August 19,  9:15 – 10:10 a.m.

First Topic:  Governor’s recent statement regarding Article 16 vaccine mandates for ‘healthcare workers’

Questions:  What are the implications for OMH and OASAS providers?  Are we included in the mandate scheduled to begin 9/27?

What We Heard:  At the present time, DoH views itself as having the power to issue an Article 16 order that pertains to its’ own providers, and the Department has issued an Aritlce 16 order (see the previous email we just sent about this specific Order).  The Article 16 order was issued after our call and I have confirmed that it only applies to nursing homes and general hospitals and does not include FQHCs, D&TCs residential programs, public health centers and outpatient programs.  It also does NOT include OASAS programs (with the exception of OASAS detox and inpatient operated within a general hospital).  Having said this, the Governor’s Office has requested that the state agencies  (OASAS and OMH and maybe others) use their regulatory authority to implement emergency regs that speak to our specific programs and services.   As such, OASAS and OMH are each working on Emergency Regs that (for the time being) will be directed at bedded congregate care settings, including state run facilities.  The Regs would apply to ALL staff in these ‘bedded’ programs, not just those who have direct contact with individuals served.  It would require staff to be vaccinated or have a test on a weekly basis.  Trisha acknowledged many of the questions that would come with such a regulation including who pays for the test? what if staff refuse to vaccinate and refused testing?   The Emergency Reg combined with related guidance to the field is expected to respond to these and additional questions.  It is expected to be released shortly HOWEVER we also need to remember that ,with the  coming change in the Administration, there could be changes to whatever the state comes out with between now and then.  Additionally, the regulations would not be effective until 9/27/21.

As to the issue of outpatient settings, Trisha notes that since the majority of care is still occurring via telehealth, it becomes more difficult to mandate the same requirements for Outpatient settings.  They are working this through.

Finally, Trisha noted that individual agencies are welcome to establish their own standards for vaccination and testing in their organizations, and that whatever the O agencies put out eventually will serve as the ‘floor’ or the bottomline expectation for all impacted providers to follow – they can require more (e.g. vaccinations and testing for all programs) 

Next we heard from two agencies, Family and Children’s Association (Dr. Jeffrey Reynolds, President and CEO) and Phoenix House (Ann Marie Foster, CEO).  Both organizations have gone ahead and established their own requirements for staff in terms of vaccination and testing.  Both reported that doing so has not resulted in turnover in their agency as result of mandates in this area. Thanks to both agency leaders for sharing their experiences to date.  

Trish Marsik, COO, at SUS described a program put in place by the NYC Department of Homeless Services (DHS) in which the Department is offering financial incentives to agencies that increase vaccination rates of the individuals they serve.  Participating providers can use the additional funds to give bonuses to staff up to $1,000.  To accomplish this, DHS took a baseline measure of vaccination penetration in each agency on a specific day in July and it is awarding funds to agencies that improve their vaccination rates in increments.  

Second Topic:  Commissioner’s Emergency Waivers Issued June 24 that continued regulatory flexibilities during COVID-19 (to include tele health flexibilities) 

What We Heard:  On June 24 New York State let the state’s Public Health Emergency declaration run out.  Also around that time, the Legislature moved to limit the Governor’s Executive Order powers.  As such, the OASAS and OMH Commissioners needed to issue Emergency Waivers that continued the majority of the COVID-related flexibilities we had been operating under for over a year.  The waivers are set to expire on August 25.  Trisha assured us that both OMH and OASAS intend to extend the Emergency Waivers so that we can continue to make use of the flexibilities in areas including but not limited to the provision of telehealth services to include the audio only modality.  In anticipation of our call this morning, Trisha had checked in with OMH and confirmed for us that both state agencies plan to continue the Waivers for at least another 60 days.  Trisha pointed out that OASAS has a new draft Part 830 regulation (here’s a link)  that, while not yet adopted yet speaks to many of the flexibilities that OASAS is going to make permanent.   OMH is expected to float a proposed regulation that speaks to permanent operation of telehealth services in OMH programs and services shortly.  In the meantime, and to repeat the big takeaway here, nothing has changed with regards to telehealth flexibilities.  

As a reminder, the audio only modality was made a permanent part of the NYS Medicaid Telehealth Program last June.  Unless state leaders move to change it and succeed, rate parity between face to face and telehealth services is the norm (in Medicaid) in behavioral health.  Trisha noted that there are discussions going on inside state government looking at utilization patterns for telehealth during COVID so this is not out of the realm of possibility (which is why we need a statute top make our rate FTF vs. TH rate parity permanent).

On the commercial (DFS) side, health plans MUST continue to cover telehealth services but the plans are not required to pay on par with FTF services unless you are able to negotiate this into your contract with the plan in question.  

Lauri ———- Forwarded message ———
From: Lauri Cole <>
Date: Fri, Aug 20, 2021 at 2:12 PM
Subject: Important Update: DoH Issues Article 16 Orders to Hospitals and LTC Facilities

DOH Issues Section 16 Orders to Hospitals and Long-Term Care Facilities Requiring Policy to Ensure All Employees are Vaccinated – First Dose Required by September 27
Governor Cuomo this week announced that all healthcare workers in New York State, including staff at hospitals and long-term care facilities (LTCF) will be required to be vaccinated against COVID-19 by Monday, September 27.   FQHCs and D&TCs are not currently included in the Order.  

The State Department of Health has issued Section 16 Orders requiring all hospital, LTCF, and nursing homes to develop and implement a policy mandating employee vaccinations, with limited exceptions for those with religious or medical reasons.

The order comes weeks after the administration announced all patient-facing workers at state-run health care facilities had until Labor Day to get vaccinated and would not have the option of being tested weekly instead. To date, 75% of the state’s ~450,000 hospital workers, 74% of the state’s ~30,000 adult care facility workers, and 68% of the state’s ~145,500 nursing home workers have completed their vaccine series. Lt. Governor Kathy Hochul’s administration was briefed prior to the announcement.

As stated above, the Article 16 order applies to nursing homes and general hospitals – General Hospitals are defined in PHL 2801. There are specific exclusions.  OASAS programs are not covered in the definition.  

See below:

10. “General hospital” means a hospital engaged in providing medical or medical and surgical services primarily to in-patients by or under the supervision of a physician on a twenty-four hour basis with provisions for admission or treatment of persons in need of emergency care and with an organized medical staff and nursing service, including facilities providing services relating to particular diseases, injuries, conditions or deformities.  The term general hospital shall not include a residential health care facility, public health center, diagnostic center, treatment center, out-patient lodge, dispensary and laboratory or central service facility serving more than one institution.