COVID-19 Update
July 9, 2021
OPWDD Clarification on New Guidance
The Office for People with Developmental Disabilities (OPWDD) hosted a COVID-19 stakeholders meeting on Thursday. OPWDD leadership addressed the top-level questions submitted pertaining to the recent July 2 Post State of Emergency COVID-19 Guidance, as well as the revised Interim Guidance Regarding the Use of Telehealth/COVID-19. A summary of those clarifications can be found below.

Restrictions on Community Outings and Visitation
Guidance that permitted restrictions on community outings and visitation have been rescinded by the July 2 guidance and the Executive Order ending the public health emergency. OPWDD advised that providers should return to the established process for determining if a restrictive intervention is necessary as part of a person's service plans.

Health Screenings
Guidance requiring daily health screenings has been rescinded. Health screenings are required in certified residences where there is a confirmed case of COVID-19, and in clinics, due to their designation as a healthcare facility. Screening of visitors outside of these two circumstances is no longer required by OPWDD.

Keep in mind that the Occupational Health and Safety Administration (OSHA) COVID-19 Emergency Temporary Standard (ETS) does require screening of employees before each work day and shift. Screening may be conducted by asking employees to self-monitor before coming to work, or by in-person screening. We consulted with OPWDD, and they confirmed that the OSHA ETS applies to any group home where nursing services are provided, or where individuals with COVID-19 reside. Health screening of employees should continue in these locations as long as the OSHA ETS is in effect. There is an exception for settings where all employees are fully vaccinated and non-employees are screened prior to entry.

The New York Hero Act contains similar requirements for employee screening. These requirements go into effect when an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health. While the state continues to deal with COVID-19, no such designation is currently in effect. 

On Monday July 12, Bond, Schoeneck & King Attorneys will be hosting a webinar on the Hero Act. Registration for the webinar can be completed here.

We are developing reference materials that will provide a high-level summary of the applicability and provisions of the ETS and Hero Act.  

Safety Plans 
Safety Plans for Day Programs are no longer required.

COVID-19 and Vaccination Uptake Reporting
The requirements for reporting COVID-19 cases and vaccination uptake remain in effect for the time being.

Mask Wearing
Mask wearing is required for those who are unvaccinated, per the conditions within the guidance. 

Waiver Flexibilities
OPWDD clarified that the billing flexibilities offered by the Appendix K Waiver or the federal state plan flexibilities (governing ICFs, clinics, health home services) continue. The availability of the federal Appendix K Waiver flexibilities is linked to the federal declaration of the public health emergency (PHE). At this time, it appears that this declaration will continue through the end of the calendar year. However, this timeline is subject to the discretion of the Biden Administration. The Home and Community Based Settings (HCBS) flexibilities within the Appendix K will continue for 6 months following the end of the federal declaration of the federal PHE. The state plan flexibilities expire at the time of the end of the federal declaration of the federal PHE.

OPWDD did seek and obtain approval for permanent flexibilities for day services, telehealth and Community Habilitation-R as part of the recently approved July 1, 2021 1915(c) waiver amendments. These will take effect 6 months after the end of the federal PHE. 

OPWDD's annual flu guidance is being reviewed and COVID-19 precautionary measures will be incorporated into that guidance. 

Delivery of HCBS services via telehealth will be permitted in the 1915(c) Waiver under the conditions mentioned above. OPWDD is finalizing guidance documents on delivery of HCBS services via telehealth that will take effect 6 months after the end of the federal PHE. The authority to delivery non-OPWDD HCBS services via telehealth modality, such a clinic services, expires when the federal PHE ends. DOH issued emergency regulations that preserve the status-quo of telehealth service delivery until the end of the PHE. 

In-Person Life Plan Meetings
There have been reports that Care Managers have insisted that in-person meetings be held during this federal PHE period. OPWDD emphasized that the option of providing Care Management via remote means remains available. Care Managers have been instructed to discuss with each individual what their preference is for Life Plan meetings. If a person is uncomfortable with returning to in-person meetings, this should be honored while the federal PHE remains in effect. OPWDD will be working with the Care Coordination Organizations to remind them of this approach.

Vaccinated and unvaccinated individuals can be on the same transportation. The 50% vehicle capacity limit is no longer the standard. If someone is unvaccinated, they should be seated away from others, to the extent possible (e.g., leaving an empty seat beside them and the next person). 

OPWDD continues to review the questions that were submitted. Thank you to everyone who responded to our request for questions and comments, as these were very helpful to the process. 

OPWDD shared data regarding the number of confirmed cases of COVID-19, and deaths due to COVID-19 within the service system. 

As of July 7, 2021:
  • 10,746 people supported are confirmed to have had COVID-19.
  • 7,152 of these people reside in a certified residential facility. 
  • There have been 671 deaths relating to COVID-19.
  • 15,295 staff are confirmed to have had COVID-19.

The peak of COVID-19 cases occurred the week of January 3, 2021 with over 700 positive cases reported. By comparison, 1 new case was reported the week of June 27. Peak hospitalizations occurred the week of March 29, 2020, with over 350 new admissions. No new hospital admissions were reported the week of June 27. Peak fatalities occurred the week of April 5, 2020, with over 100 deaths reported. No new deaths were reported for the week of June 27.

OPWDD has been publishing statewide data regarding COVID-19, which is regularly updated and can be viewed here. As a reminder, New York state maintains data on cases by county here.

This and all related updates will be cataloged on The Arc New York COVID-19 Resource Page for future reference. Please contact us if you have questions regarding any of this information.
CONTACT: Josh Christiana, Director for Quality, Compliance & Chapter Relations
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