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.