COVID-19 Update
August 12, 2020

Southern District of New York Court Decision Regarding FFCRA 
During the early months of the COVID-19 pandemic, Congress passed the Families First Coronavirus Response Act (FFCRA), a relief bill providing paid leave to individuals affected by COVID-19. At that time, we determined that The Arc New York Chapters are excluded from the requirements of the FFCRA on the basis that we are considered a "health care provider" under the expanded definition of that term used by the US Department of Labor (DOL) in its Final Rule implementing and interpreting the FFCRA.
On August 3, 2020 the United States District Court for the Southern District of New York (SDNY) issued a decision invalidating four provisions of the DOL Final Rule, including the broad definition of "health care provider" that we rely upon. The SDNY found the definition to be overly broad and not rationally tailored. This decision is the outcome of a complaint filed by New York state against DOL in April, arguing that DOL exceeded its authority by enacting rules in the Final Rule that are not found in the FFCRA.
Though the ruling raises concerns and questions, there is no immediate impact on our exemption from the FFCRA as a result. Additional clarification is necessary to determine whether this decision will impact The Arc New York. Given the uncertainty, we recommend that no immediate action be taken as a result of the SDNY decision. We will continue to monitor the matter and provide an update once available.

New York State Travel Advisory Update
Yesterday, Governor Cuomo announced the addition of two states to the travel advisory. Hawaii and South Dakota now meet the metrics to qualify for the travel advisory. The Virgin Islands were also added. Alaska, New Mexico, Ohio and Rhode Island were removed from the list. Chapters should continue to review the list and advise employees of the current designated states. The current list can be found here

Confirmation of OPWDD Training and Background Check Policy Extensions
On August 5, Governor Cuomo signed Executive Order 202.55, which extended the provisions of several earlier EOs through September 4, 2020. We summarized the relevant sections of the EO in our August 6 COVID-19 Update. 

Since that time, we have received several questions about the Office for People With Developmental Disabilities (OPWDD) interim guidance on training and criminal background check (CBC) requirements during the public health emergency. We reached out to OPWDD's Counsel's Office to confirm that the interim guidance and all flexibility continues through September 4, 2020. OPWDD confirmed our belief in a response received yesterday.  

Prior to the extension of the EO, we were providing feedback to OPWDD on proposed revisions to the interim guidance documents. Another EO will be needed prior to September 4, 2020 or the interim guidance will need to be reissued to further extend the OPWDD training and CBC flexibility. We will continue to monitor and update the Chapters as we get closer to the expiration date.

OPWDD DQI Survey Process Update
Each fall, OPWDD's Division of Quality Improvement (DQI) begins a new survey cycle. Back on March 13, 2020, OPWDD issued "Interim Guidance Regarding Site Visits." The guidance addressed scheduled field work and site visits by OPWDD surveyors. Since that guidance, there has been very little communication on the status of the standard OPWDD DQI surveys. We reached out to OPWDD's Statewide Director of the Bureau of Program Certification to obtain an update on the status of DQI surveys. OPWDD is focusing their survey efforts on the Person Centered Reviews (PCR). As a reminder, information regarding DQI's review protocols can be found here
OPWDD also shared their PCR documentation request form. Chapters should review this document closely in anticipation of potential PCR reviews. 
While OPWDD does not intend to resume routine site reviews at this time, Chapters should continue to conduct self-assessments of their sites to ensure that regulatory compliance in maintained. 

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.

Josh Christiana, Associate Executive Director for Quality, Compliance & Chapter Relations

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