Governor Cuomo last week extended for another 30 days his directive allowing licensed establishments to provide alcohol-to-go with food orders. That’s just one of hundreds of directives and modifications or suspensions of laws and regulations that remain in force under the pandemic-induced statewide emergency Cuomo has extended into late this month. Many of these changes, like alcohol-to-go, are long overdue initiatives that make sense under non-emergency conditions. As the pandemic subsides and Cuomo’s emergency orders expire, the state would be wise to take some of what he has done by fiat and keep the change.
The change began with Cuomo on March 7, 2020 signing Executive Order 202 declaring a statewide disaster emergency. With a stated purpose of “flattening the curve” of infections to ease burdens on hospital capacities, Cuomo signed orders to facilitate a “pause” by limiting New Yorkers’ freedom to move about and to congregate. Ironically, to allow life to go on under these new constraints, Cuomo found it necessary to issue further orders suspending or reforming restrictive laws and regulations.
Within a few months, Cuomo signed over 60 executive orders suspending or changing over 700 provisions of New York law and regulation. That represents a small fraction of the laws and regulations on New York’s books; the Empire State is second only to California in its number of regulatory restrictions, according to the Mercatus Center. But Cuomo’s actions nevertheless made up a veritable wave of deregulatory activity.
Alcohol-to-go is an excellent illustration of how an attempt to limit gatherings indirectly precipitated a popular change. The closing of bars and limiting of restaurant food sales to take-out and delivery were integral to Cuomo’s effort to limit face to face public interaction. The hit to alcohol sales, however, hurt many restaurants, depriving them of a high-margin revenue source. Executive Order 202.3 permitted places with on-premises alcohol sales licenses to sell alcoholic beverages with food. Restaurants responded innovatively with creative packaging of their signature cocktails to go.
Assemblywoman Patricia Fahy is sponsoring a bill to extend the alcohol-to-go directive for another two years after the current state of emergency expires. To assess the impact on local communities, the bill requires the State Liquor Authority to consult with municipalities and community boards and to hold at least three public hearings around the state prior to the law’s expiration.
The hospitality industry continues to take a big financial hit, even as capacity restrictions ease and customers return. After the Covid emergency subsides, surviving restaurants and bars should have access to as many revenue streams as possible in order to regain and maintain their financial footing.
This is also a change New Yorkers want to keep, according to a New York State Restaurant Association (NYSRA) survey, in which over 80 percent of respondents in New York City and its suburbs (defined by NYSRA as Nassau, Rockland, Suffolk and Westchester counties) support making alcohol-to-go permanent. Upstate support is similarly strong, with 72 percent of respondents in favor.
Beyond alcohol-to-go, the Legislature can keep the changes Cuomo made by executive order by permanently changing statutory restrictions concerning how, for example, New Yorkers receive health care services and conduct other public and private business. As previously noted, there were hundreds of regulatory changes made by executive order in the last year. What follows is a description of some of the most obvious that may be most beneficial to keep the change.
Besides orders restricting movement and gatherings, including closing “non-essential” businesses to flatten the curve, Cuomo issued orders to expand the state’s capacity to provide medical care. The state and its expert consultants predicted peak COVID-19 hospitalizations to range from 55,000 (moderate) to 110,000 (severe) in a state with 53,000 total hospital beds. To ensure adequate medical staffing, Cuomo’s executive orders relaxed laws and regulations to expand treatment capacities.
Keeping patients away from medical facilities, where possible, was a key measures to limit coronavirus spread, including banning elective surgeries. For those patients who could not wait for medical services, the state deemed doctor’s offices essential. Patient access was further eased by relaxing rules restricting telehealth visits and by permitting providers and patients the ability to establish patient relationships without requiring in-person consultations.
For some patients the best form of patient-centered care is a home visit by the provider. Done well, a telehealth visit can be a close substitute. Dr. Jennifer Waythe is a New York cardiologist who has written about her virtual house calls and glimpses of her patients’ worlds she gets from her screen. She found her casual prescriptions for better diet and exercise to be disconnected when put in context with her patients’ lives and what it takes for some just to get out the door for an appointment. As Dr. Waythe noted, “a virtual visit is better than no visit” for patients who miss appointments because they can’t arrange childcare, cannot make the commute, don’t feel well enough to travel, or suffer from memory loss.
In his State of the State address in January, Cuomo announced legislation to make permanent telehealth reforms from his executive orders. He made modest proposals to expand the ability of patients and providers to interact regardless of location, and to introduce limited professional licensing reciprocity for providers among Northeast region states. But his other proposals were heavy on state mandates and light on providing a regulatory environment where patients and providers could define their own market for telehealth services.
Cuomo’s proposals did not survive the budget process with the Legislature. The adopted budget bill only removed location restrictions for providers. Only New York-licensed providers may provide telehealth services, with no regional reciprocity. Regardless, telehealth is here to stay, and the Legislature could reform the law to remove barriers to telehealth service options for New Yorkers based on patient needs. The state also could look into opportunities for its healthcare professionals to provide their services in the interstate market and not leave them behind in this new nationwide telehealth reality.
In a series of orders, Cuomo permitted an array of health professionals with active out-of-state licenses, inactive in-state licenses, and Canadian licenses to practice in the state without an active New York license. To ensure an adequate supply of medical care, Cuomo’s executive orders relaxed supervision requirements and practice restrictions existing under state law and regulation. The relaxed rules allowed medical personnel to practice more broadly, using a fuller extent of their training, as other states permit them to do.
The Legislature should consider the merits of the Interstate Medical Licensure Compact (Compact). Twenty-nine other states have adopted the Compact, providing physicians a streamlined process for obtaining licensure in their states. The Compact arose from state medical boards’ recognition that telemedicine would increase the number of physicians practicing in multiple states.
Physicians who meet the Compact’s eligibility requirements can get licensed in multiple states by completing a single application. Member states still issue their licenses to practice to the physician, but the compact expedites data sharing, making the process faster and less burdensome for the applicant.
The sponsor of a bill to bring New York under the Compact, Senator Thomas O’Mara, notes that underserved areas of the state would have an opportunity for increased access to qualified health care professionals if New York were to join the Compact. It would also make it easier for New York-based physicians to practice across state lines, including via telemedicine.
Executive Order 202.5 also suspended New York license requirements for registered nurses, licensed practical nurses, and nurse practitioners licensed and in good standing in other states. To make those changes permanent, New York could join the Nursing Licensure Compact, which provides a multi-state nursing license to registered nurses and licensed practical nurses. Thirty-four states already take part.
Short of joining a multi-state compact, New York could streamline licensing by recognizing qualifications from other states. Two years ago, neighboring Pennsylvania passed Act 41 of 2019 that provides licensing by endorsement. Out-of-state professionals with comparable qualifications, like the mental health counselors, marriage and family therapists, creative arts therapists, and psychoanalysts who could practice here during the pandemic, could get licensed in New York in a streamlined process.
Occupational licensure concerns should not hinder professionals considering a move to New York. But the potential of foregone earnings from a delay in licensure may be sufficient cause to choose a competing offer in another state, or to stay put in a current job. With the seemingly permanent proliferation of remote work, New York should take steps to make itself as attractive a place to work as possible, and that includes minimizing the burden of attaining a professional licence.
In his Executive Order 202.10, Cuomo directed that certain medical professionals could practice at levels fully appropriate to their education, training and experience. It’s also known as practicing at the top of the license. For example, under the emergency orders nurse practitioners (NPs) could provide medical services without a written practice agreement or collaborative relationship with a physician.
The American Association of Nurse Practitioners classifies NP practice levels as full, reduced and restricted. Full practice NPs provide services independently, under the licensure authority of their state boards of nursing. Reduced practice places some limit on the NP’s ability to practice or requires a career-long regulated collaborative agreement with another health care provider. Restricted practice limits at least one element of NP practice and requires supervision, delegation or team management by another health care provider.
New York has been a reduced practice state since changes enacted in the 2014 budget bill. The 2014 law eliminated restrictive written practice agreements for NPs with over 3,600 hours of practice time but continued to require a collaboration relationship with a physician. In a report examining the impact of those changes, the state Health Department found no adverse affects of the law on quality of care and encouraged making the changes permanent, “so that the original intent of the law in promoting access to care can continue to be realized.”
Senator Gustavo Rivera, citing Executive Order 202.10, has sponsored a bill that goes further than the 2014 changes to excuse NPs with over 3,600 practice hours from requirements to collaborate with another health care provider of have a written practice agreement. Keeping this change may positively benefit New York’s rural and underserved communities in providing greater access to care. The Legislature also could go further and look into the need for the practice hours requirement for NPs and whether it should make permanent similar top of license directives relating to other health care providers such as nurse anesthetists, physicians assistants and specialist assistants.
Pharmacists showed the roles they can play in expanding access to health care during the pandemic. Executive Order 202.24 changed the Education Law to permit pharmacists to order and administer Covid tests. The Legislature also temporarily amended the law to permit pharmacists to administer Covid vaccines. That provision would have gone into effect 90 days after federal vaccine approval and expire July 1, 2022. Cuomo sped up the effective date in Executive Order 202.82.
On June 1, 2021, the Legislature passed a bill to allow pharmacists to administer a wider range of vaccines. Once enacted the bill would allow pharmacists to administer flu shots to children two years-old and up. The current law restricts pharmacists to administering flu shots to adults age 18 or older. But Cuomo in the past has lowered the age to six months by executive order to address a bad flu season.
Under the bill, pharmacists also specifically could administer Hepatitis A, Hepatitis B, HPV, measles, mumps, and rubella to adults 18 years or older. And New York would join 47 states plus Washington, D.C. and Puerto Rico permit pharmacists to give any vaccination approved by the CDC’s Advisory Committee on Immunization Practices (ACIP)––if approved by the state Health Department.
The bill’s Senate sponsor, Senator Toby Ann Stavinsky, noted that the bill made permanent the executive order permitting pharmacists to administer the Covid-19 vaccine. The success of the rapid, widespread campaign to administer the Covid vaccine through multiple channels shows how increased access to immunizations can reduce substantially the spread of disease. According to Senator Stavinsky, pharmacists as points of access for immunizations “will significantly expand the availability of immunizations and is essential to increasing low immunization rates among adults.”
As a next step, the Legislature should evaluate making pharmacist immunizations available without age restrictions. For example, as of September 2020, 34 states permitted pharmacists to administer the HPV vaccine to children under 18, with some restrictions. Sixteen of those states have no age restriction. New York should consider the public health merits of joining most other states in expanding pharmacist-administered vaccines to children beyond influenza.
Certificates of Need
To address an expected hospital bed shortage, the Governor had to suspend the state’s certificate of need laws. A healthcare provider can get a certificate of need when it proves to the state’s satisfaction the need for a service, facility, or piece of equipment. Certificates of need cover projects ranging from new buildings to boiler replacements, and have included sprinkler systems necessary to comply with federal regulations.
New York was one of five states that required a certificate of need for ambulance services when the pandemic hit. Just a few months before, the New York City Regional Emergency Medical Services Council denied a certificate to Ezras Nashim, an all-woman group of volunteer EMTs who sought to operate an ambulance service for Orthodox and Hasidic women in Borough Park, Brooklyn.
While Ezras Nashim could not serve its community as the coronavirus surged in New York City, Cuomo signed an Executive Order eliminating geographic restrictions on ambulance services in the state. Last August, the State Emergency Medical Services Council voted to grant Ezras Nashim a certificate of need.
New York was the first state to enact a certificate of need law, in 1964, and remains one of 35 certificate of need states. According to a Mercatus Center study, states without certificate of need requirements have about 99 more hospital beds per 100,000 in population than certificate of need states. That translates to just under 20,000 additional hospital beds in New York.
It’s unknown whether 20,000 additional hospital beds could have existed to affect decisions like the Health Department’s controversial March 25th nursing home resident directive, as certificate of need laws impose an artificial market. While there may be a role for state and local governments to play in ensuring patient safety in health facilities, they should not be interfering with innovation or with supply and demand through certificate of need requirements.
The business of government continued during the pandemic; Cuomo deemed state and local governments essential. While imposing limits on gathering sizes, an early executive order required all public bodies to broadcast or transmit their meetings. Pre-pandemic, the state’s Open Meetings Law only required state agencies to broadcast or transmit public meetings.
Government actions requiring public comment needed to be postponed unless a public body could satisfy that requirement. Some bodies provided robust venues, opening meetings to comments through platforms like Zoom. Others were less accommodating, using a combination of speaker phones and webcams that made comments and conversations hard for viewers to hear. Regardless, the forced use of technology opened the doors to legislation for improving public access and participation in public meetings at all levels of government in the state.
Some bodies may not have sufficient internet upload speeds to do high-quality video if the Legislature keeps this change. But some form of livestream over a mobile device could provide greater access to public meetings for those, for example, who may be ill or unable to find childcare, than nothing at all.
Assemblymember Mathylde Frontus introduced a bill requiring all local governments to livestream and post video of all open meetings. She notes in support of her bill that during the pandemic a Buffalo City Council meeting had over 18,000 views and in Ogdensburg a server crashed as over 3,000 viewers attempted to access the meeting.
The Legislature also should weigh the practicality of amending the Open Meetings Law to permit public comment by any means available for meetings that are broadcast or transmitted.
Changes to the Open Meetings Law should not be another unfunded mandate from the state to local governments. The state already has in place the Local Government Records Management Improvement Fund. It is “a dedicated fund to improve records management and archival administration in New York’s local governments” funded by certain fees collected by county clerks and the New York City Register.
For the 2019-2020 grant year, the Education Department awarded more than $5 million to local governments for 81 records management projects in amounts ranging from $6,860 to $149,999. The Legislature could ensure open meetings technology projects qualify for such grants so that local governments in need could make the modest technology acquisitions required to stream or broadcast their meetings.
Keep the Change
The state’s emergency response to the Covid pandemic revealed how much unnecessary regulation New Yorkers live under. From alcohol sales to telehealth to online public meetings, Cuomo reformed laws and rules in ways that New Yorkers embraced. He also changed professional licensing and practice restrictions that could widen access to healthcare, especially in underserved communities. The Legislature should review every law and rule that was suspended or modified by executive order to see if lawmakers can keep the change and help make New York a better place to live and work.
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