Governor’s COVID Emergency Powers Lapse

Governor Hochul announced yesterday she will let her administrative powers lapse with regards to the state’s response to the COVID-19 pandemic. The expiration of authority occurred at midnight last night, September 12, 2022.

Executive Order 11.9 (the Order) was the 9th extension of Executive Order 11 declaring a disaster emergency in the state due to the ongoing COVID-19 pandemic. The Order granted the governor extraordinary powers to suspend or modify laws and statutes that may have hampered the state’s ability to coordinate and quickly respond to the pandemic.

Republican lawmakers have called on Hochul to allow the power to lapse, in part because it expanded the power of the Executive Office, and in part due to reports that donors to her election campaign had secured no-bid government contracts related to pandemic supplies. Hochul's authority allowed contracting to bypass state contracting rules and oversight.

The expiration of the Order means the state will return to normal purchasing practices including competitive bidding review of contracts by the state comptroller.

Home Care Impact

HCP has previously reported on the impact of COVID emergency declarations on state enforcement of in-service training hours for home health aides (HHA). DAL 21-09 states that “the Department will continue to exercise enforcement discretion when assessing the completion of Home Health Aide annual in-services until the end of the first full quarter following the declaration of the end of the federal Public Health Emergency (PHE).” (Emphasis ours.) This discretion is likely linked to the federal authority over HHAs.

The current federal PHE is set to expire on October 13, 2022, and is expected to continue, but enforcement could begin as soon as April 1, 2023. HCP cautions all provider members to keep this date in mind and not to fall too far behind. No additional guidance has been released and it remains unknown if the end of this relief measure means enforcement measures will look back or if they will only apply moving forward. While April 1, 2023 feels a long way off, catching up trainings in such a compressed timeframe is a very heavy lift.

Note that the Executive Order (EO 4.12)  declaring a disaster emergency due to health care workforce shortages remains in effect until September 27, 2022. Therefore, Supervision of HHAs and Personal Care Aides (PCA) telephonically or via video is still acceptable. HCP members are urged to wind down this practice, however, as these EO powers may also be allowed to lapse.

Stay tuned to HCP channels for regulatory relief and enforcement resumption updates as information becomes available.