Provided by:  Jennifer Kirschenbaum, Esq.
May 18, 2020
 
 
For each State, it's the Governor's show.  For us NYer's, this is Andrew Cuomo's 
magnificum spectaculum.   I give his team (i) 10/10 for distraction; (ii) 7.5/10 for graphics and fear factor, and (iii) 3/10 for information share for professionals.  The latest upgraded "tool" as opposed to simply clear information is the "NY Forward Business Reopen Tool" - https://forward.ny.gov/industries-reopening-phase.    Good news!  That tool says ALL MEDICAL PRACTICES, Code 621111 are "PERMITTED TO OPERATE STATEWIDE". 

NAICS: 621111
Industry: Offices of Physicians (except Mental Health Specialists)
Your business is located in New York county, which is in region New York City.
Your business is currently permitted to operate statewide.

In order to operate, you must comply with all safety guidelines for your industry, as
well as any additional health and safety guidance issued by the state. Please click here to read the applicable guidelines.

If the link above contains guidance specific to your industry, you must affirm that
you have read and understand your obligation to operate in accordance with the guidance
at the bottom of the document.

Please note that in order to be fully compliant, you must develop a business safety plan.

Thank you for using the New York Forward Business Reopening Lookup Tool.
For more information on the New York State Forward plan, visit forward.ny.gov.

Visit Empire State Development's website for frequently asked questions on how the New York Forward re-opening plan impacts businesses.  



When you try to get to the fine print to read "applicable guidelines", you are taken to the explanation of the original Executive Order, indicating 621111, Medical Practices, are essential.   Woohoo!  There is no clear delineation or mention of restrictions. Now what?  We know there are still restrictions for elective procedures based on BUZZ (since you can't find clearly on these pages any limitation).  Now you have to keep searching.   The latest printed update on the site has a separate article you have to search for that shows the Elective Procedure counties Cuomo mentioned he has determined are safe to render services. https://www.governor.ny.gov/news/amid-ongoing-covid-19-pandemic-governor-cuomo-announces-elective-outpatient-treatment-can (Thankfully our societies many of you smartly pay dues to quickly acted to push for physician owned OBS and ASC to be included in the reopen (THANK YOU!) - unreal how those facilities were excluded in the initial iteration.)

Okay, so now I know everything?  No.  Not yet.  If you are not watching daily updates each afternoon you are not up to date.  Key information on reopening, for instance, the addition of more counties in the "elective procedure restriction" lift are not on the website clearly.  As we know, Suffolk and Westchester are now open!  https://www.newsday.com/news/health/coronavirus/coronavirus-developments-1.44693379


I'm conflicted as to whether or not to criticize our state's communication too ferociously.  It seems impossible to keep information current.  I will say as an individual who values Substance over Glam, I'm disappointed.  

So, who should you listed to?  Governor Cuomo - on his daily talk show - that is the best source since information then does not clearly end up on his website.  



First Step Back...  
 
Question:

Jennifer,

What is my first step towards opening/bringing employees back?  I'm receiving messages from employees they do not want to return.  They would rather remain on unemployment.   Thoughts? 

Dr. P

Answer: 

This is the current conundrum for most of your colleagues.  I have an organized plan for you, and, no, it is not my job to be your employee's advocate.  My job is to assist the practice owner/physician to operate.  

Some of your employees will answer your call, no questions asked, and return to work (40% - is what I'm seeing).   Some of your employees will answer and ask or raise concern about how they will be protected once they return, but will return (10-20%).  Some will tell you to stop calling them, they aren't coming back until the government gives the "all clear" or a vaccine is released en mass.  

Now what? 

As a first step, I recommend for those employees who are looking to return, and for yourself and your patients, adopt written protocols for COVID-19.  Some of you may be compiling yourselves, some of you may be receiving forms from specialty societies or other sources.   I can only tell you what I have developed and recommend as you open.  Based on what I've learned the past 6 weeks, the best recommendation I can make is for the employer to take a 3 prong approach - 1. develop protocols your employees have to follow and sign off on; 2. develop an informed consent for patients (which will educate patients on your approach to COVID-19 and have them agree to be seen face to face); and 3. adopt your employer set of rules you will follow.   Best place to start for crafting your own - https://www.cdc.gov/coronavirus/2019-ncov/hcp/preparedness-checklists.html

We've already done the work if you prefer to utilize our approach.  We have incorporated release language, covenant not to sue, indemnification and hold harmless provisions so you may rehire staff and engage with patients/customers with written protocols and confidence.

I pre-recorded a short explanation of what we have compiled.  Explanation Webinar available here.  

Here is the description - 
  1. Staff COVID-19 Protocol with Acknowledgement and Employer Liability Protection*
  2. Patient/Customer Informed Consent with Liabilty Protection*
  3. Specialty specific Employer Guidelines 
*While recommended, release from liability for contraction of COVID-19 at your facility or by your staff is not guaranteed. Case law indicates properly worded language may be enforceable. Informed consent is insurance carrier and association recommended.

To order K&K COVID-19 Protocols email Jennifer at Jennifer@Kirschenbaumesq.com. Package Price: $250. Association members affiliated with K&K also qualify for a 15 minute free consult discussing roll out and best practices.

What about the employees refusing to return out of fear or complacency (receiving unemployment)? 

Each state has a mechanism to notify the unemployment office you have offered a recipient the right to return to work.  Available work is a disqualifying event for unemployment recipients.  Those of you who have received PPP and wish to rehire staff, they are not allowed to maintain unemployment benefit.  You can document the availability of work (in writing) and report the position and desire to rehire to the unemployment office.  

NYS Unemployment https://labor.ny.gov/formsdocs/ui/IA318.2.pdf (see page 8)- 

NYS Department of Labor 
PO Box 15130 
Albany, NY 12212-5130 
OR Fax to: (518) 402-6175 
If you are able to reemploy a claimant, contact the claimant directly. The claimant’s address appears on the initial Notice of Potential Charges (LO 400). If the claimant refuses rehire or fails to report to work, notify us in writing at the address above. When you notify us, provide: 
  • The date the claimant refused work or failed to report to work 
  • The type of employment offered  
  • The wages offered for the position We consider an employment offer acceptable to the claimant if it offers the prevailing wage for similar work, even if: 
    • The amount is less than the claimant earned on the last job 
    • The amount is less than the salary desired 
After collecting 13 full weeks of UI benefits, the claimant may also be required to accept any employment that he or she is capable of performing if:  
  • It offers the prevailing wage 
  • The pay is at least 80% of the claimant’s base period high quarter wages