On June 24, 2021, New York Governor Andrew Cuomo issued Executive Order 210, which officially declared the end of the New York State of Emergency caused by the COVID-19 pandemic effective June 25, 2021. The issuance of the Executive Order marked an important milestone for life post-pandemic and a welcome result for small businesses barely treading water trying to comply with the COVID-19 restrictions. However, the abruptness of the announcement, the limited carve-outs for health care professionals and the organizations that employ or contract with them, and the lack of permanent alternative solutions will create a tumultuous few weeks for those parties.

As discussed in a prior blog post, the COVID-19 pandemic accelerated the push for innovation in the delivery of health care to accommodate remote access and increased telehealth functionality. As further discussed in a subsequent blog post, state (including New York) and federal governments are attempting to keep up with the evolving health care landscape and increasing access to audio-only telehealth, albeit slowly. One of the features allowing expansion of these services was the waiver allowing out-of-state health care professionals to perform professional services in states such as New York without the cumbersome process of becoming licensed in such state. Digital health companies and health systems have been able to utilize out-of-state providers to expand services and cover understaffed departments. Those waivers expired in New York last week with one day’s notice.

In an attempt to soften the blow of the quick termination of the rules, the New York Office of the Professions, on its COVID-19 Executive Order web page, advises that:

[It] understands the concern regarding the short notice of the expiration of the COVID-19 Disaster Emergency and will take that into consideration in the event of any potential inquiries involving activity that had previously been authorized by Executive Order 202 and its successor Executive Orders at this time. However, Title VIII professionals should exercise due diligence and good faith efforts to return to compliance with all Title VIII statutory and regulatory requirements without delay.

The New York Education Department has not provided any additional guidance on how much leniency it will grant out-of-state health care professionals utilizing the waiver or for how long. As such, health care professionals and the companies and providers that employ or contract with them should obtain in-state professional licensure as soon as possible. As health care delivery mechanisms continue to evolve and become more and more cross-state, it may become prudent for the federal government to establish an interstate telehealth licensure for health care professionals to streamline provision of such telehealth services by competent out-of-state professionals. Given the pace it has moved to date, such an outcome does not seem likely any time soon.

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Photo of Edward S. Kornreich Edward S. Kornreich

Past long-standing chair of Proskauer’s Health Care Department, Ed Kornreich is a recognized authority on the legal, regulatory and business issues related to health care services.

Ed works primarily on health care transactions, regulatory compliance, health care payment and governance issues for varied…

Past long-standing chair of Proskauer’s Health Care Department, Ed Kornreich is a recognized authority on the legal, regulatory and business issues related to health care services.

Ed works primarily on health care transactions, regulatory compliance, health care payment and governance issues for varied providers (both for-profit and not-for-profit), vendors, GPOs, distributors and entrepreneurs. His approach combines sensitivity to meeting regulatory business goals with a comprehensive and realistic assessment of the health care environment, and he is particularly experienced in dealing with the complex issues related to integrated health care systems.

After working for the Legal Aid Society, Ed entered private practice, where he helped represent a major public hospital corporation in a series of reimbursement disputes with the state and federal governments, and counseled New York area hospitals and nursing homes on reimbursement and operational issues. Thereafter, Ed served as General Counsel of St. Luke’s-Roosevelt Hospital Center, one of the largest teaching hospitals in New York. After leaving St. Luke’s-Roosevelt Hospital Center, Ed joined Proskauer as a Partner in 1990.

Ed frequently writes and lectures on Medicare and Medicaid reimbursement, health care integration, not-for-profit law and corporate governance issues, and the application of federal and state anti-kickback and “Stark” laws to health care transactions.

Photo of Peter J. Eggers Peter J. Eggers

Peter Eggers is an associate in the Corporate Department and a member of the Health Care Group. He regularly counsels clients on corporate matters including mergers and acquisitions, joint ventures, professional services arrangements and general business planning. He also provides legal advice on…

Peter Eggers is an associate in the Corporate Department and a member of the Health Care Group. He regularly counsels clients on corporate matters including mergers and acquisitions, joint ventures, professional services arrangements and general business planning. He also provides legal advice on health care regulatory matters such as fraud and abuse, licensure and enrollment, Medicare reimbursement, and other compliance issues. He combines his passion for health care with an interest in each client’s business objectives to help identify opportunities for them to overcome challenges within their organizations and the health care industry.

Peter earned his J.D. with a Certificate in Health Law from the Saint Louis University School of Law. While in school, Peter served as the Editor-in-Chief of the Saint Louis University Journal of Health Law & Policy. Peter later served as an adjunct faculty member of the Center for Health Law Studies at Saint Louis University School of Law teaching Transactional Health Care Law.