GOVERNOR

EXECUTIVE ORDER NUMBER FIFTY-EIGHT (2020)

Access to Medicaid-Covered Health Care Services in Response to Novel Coronavirus (COVID-19)

Importance of the Issue

The COVID-19 disease, caused by a virus that spreads easily from person to person that may result in serious illness or death and has been classified by the World Health Organization as a worldwide pandemic. This virus has spread throughout the Commonwealth. Based on information from the Virginia Department of Health and the Centers for Disease Control and Prevention, the number of cases of COVID-19 continues to increase within the Commonwealth and in neighboring states. It is anticipated that COVID-19 will result in increased demand for certain health care services, that, coupled with significant burden on the health care system, will require additional flexibilities for healthcare providers to ensure access to care for Medicaid and Family Access to Medical Insurance Security (FAMIS) members. Waiving copays for Medicaid and FAMIS members, suspending certain requirements for replacement durable medical equipment (DME), and ensuring new and updated information is immediately received by providers will assist in meeting beneficiary access to care needs. Extending allowable timeframes for certain background checks for personal care, respite services, and companion services will expand the availability of critical long term care providers.

Directive

Therefore, by virtue of the authority vested in me by the Constitution of Virginia and § 44-146.17 of the Code of Virginia, and in furtherance of the state of emergency declared in Executive Order 51, I hereby order the following:

1. The Department of Medical Assistance Services (DMAS) will suspend preadmission screening pursuant to § 32.1-330 of the Code of Virginia. All new nursing facility admissions will be treated like exempted hospital discharges.

2. Copays required under § 32.1-351(C) of the Code of Virginia for Virginians receiving health insurance through the Family Access to Medical Insurance Security Plan are waived.

3. Requirements pursuant to § 32.1-325(A)(14) of the Code of Virginia concerning certificates of medical necessity and any supporting verifiable documentation are waived with respect to replacement of durable medical equipment (DME). DMAS will also suspend enforcement of additional replacement requirements for DME, prosthetics, orthotics, and supplies that are lost, destroyed, irreparably damaged, or otherwise rendered unusable, such that the face-to-face requirement, a new physician's order, and new medical necessity documentation are not required for replacement equipment.

4. Personal care, respite, and companion providers in the agency- or consumer-directed program, who are providing services to individuals over the age of 18, may work for up to 60 days, as opposed to the current 30-day limit in § 32.1-162.9:1 of the Code Virginia, while criminal background registries are checked. Consumer-directed Employers of Record must ensure that the attendant is adequately supervised while the criminal background registry check is processed. Agency providers must adhere to current reference check requirements and ensure that adequate training has occurred prior to the aide providing the services in the home. Agency providers shall conduct weekly supervisory visits through telehealth methods when the aide works prior to receiving criminal background registry results. This section does not apply to services provided to individuals under the age of 18, with the exception of parents of minor children in the consumer-directed program.

5. Requirements under § 2.2-4002.1 of the Code Virginia related to the 30-day advance public notice and comment period are waived as to DMAS only, so that the DMAS can issue Medicaid Memos to ensure that healthcare providers receive immediate information on flexibilities to ensure access to care for Medicaid members.

Effective Date of this Executive Order

This Executive Order shall be effective April 23, 2020, and shall remain in full force and in effect until June 10, 2020, unless sooner amended or rescinded by further executive order.

Given under my hand and under the Seal of the Commonwealth of Virginia, this 23rd day of April, 2020.

/s/ Ralph S. Northam
Governor

EXECUTIVE ORDER NUMBER FIFTY-NINE (2020)

Postponing May 5, 2020 General and Special Elections to May 19, 2020 Due to Novel Coronavirus (COVID-19)

Importance of the Issue

The Commonwealth continues to respond to the threat posed by the novel coronavirus (COVID-19). The actions we take now will help protect the health and safety of our citizens for months to come. These actions include when to hold our elections. Voting is a fundamental right and no one should have to choose between their health and safety and their right to vote.

Directive

To continue with the Commonwealth's response to COVID-19 and in furtherance of Executive Order 51 (March 12, 2020), Amended Executive Order 53 (April 15, 2020), and Executive Order 55 (March 30, 2020), and by virtue of the authority vested in me by § 24.2-603.1 of the Code of Virginia, I order the following:

1. The provisions of this Order shall apply to the general and special elections scheduled to be held on May 5, 2020.

2. That the general and special elections scheduled for May 5, 2020, shall be held on May 19, 2020.

3. Only those candidates who qualified to have their names printed on the official ballot for the May 5, 2020, general and special elections shall be listed for those offices on the ballot at the May 19, 2020, general and special elections. No other person shall be entitled to qualify to have their name printed on the official ballot for any office that was scheduled to be elected at the general and special elections held on May 5, 2020.

4. Pursuant to § 24.2-603.1 of the Code of Virginia, only those voters duly registered to vote on the date of the original election shall be able to participate in the postponed election.

5. Pursuant to § 24.2-701(B)(1) of the Code of Virginia, the last day to vote absentee in person shall be May 16, 2020.

a. Pursuant to § 24.2-701(B)(2) of the Code of Virginia, qualified voters shall have until May 12, 2020, to request an absentee ballot using the "my disability or illness reason" by mail, e-mail, or fax.

b. Pursuant to § 24.2-709(A) of the Code of Virginia, the deadline for returning an absentee ballot shall be 7 p.m. on May 19, 2020, except as provided under § 24.2-709(B) of the Code of Virginia.

6. Pursuant to § 24.2-603.1 of the Code of Virginia, the Department of Elections shall prescribe appropriate procedures to implement the provisions of this section. The Department of Elections shall also prescribe procedures in accordance with the Centers for Disease Control and Prevention and Virginia Department of Health to assist in ensuring the safety and well-being of election officials, officers of election, and voters. The Department of Elections shall partner with the Virginia Department of Health and the Virginia Medical Reserve Corps to train election officials on preventive actions to reduce the risk of exposure to COVID-19 and to provide support at polling locations.

Effective Date of this Executive Order

This Executive Order shall be effective on April 24, 2020 and shall remain in full force and effect unless amended or rescinded by further executive order.

Given under my hand and under the Seal of the Commonwealth of Virginia, this 24th day of April, 2020.

/s/ Ralph S. Northam
Governor

EXECUTIVE ORDER NUMBER SIXTY (2020)

Clarification of Certain Immunity from Liability for Healthcare Providers in Response to Novel Coronavirus (COVID-19)

Importance of the Issue

The Commonwealth of Virginia continues to respond to the COVID-19 pandemic. The number of confirmed cases, hospitalizations, and persons under investigation in Virginia has increased substantially. As testing increases, it is highly likely that these numbers will continue to rise. Hospitals and nursing homes across the Commonwealth are reporting large numbers of patients presenting with COVID-19 symptoms, which is putting significant stress on these facilities, as they were already dealing with a more severe seasonal influenza than usual. Healthcare providers are experiencing critical shortages of personal protective equipment (PPE) and other supplies. In some cases, they are being required to reuse PPE where possible and appropriate. Healthcare providers are not able to quickly resupply these critical resources due to severe supply chain disruptions as a result of increased equipment use in the worldwide COVID-19 response. In addition, staffing levels at hospitals are often strained by the inability to transfer patients with COVID-19 to other sites of care such as assisted living facilities, hospice facilities, and nursing homes because of the need to contain the spread of the virus. All of these difficulties are created by the effects of COVID-19 and present less than optimal conditions to deliver the healthcare indicated by conventional standards of care.

Response to the COVID-19 disaster will require both public and private healthcare providers and other persons to deliver care using personnel, supplies, and equipment in ways that would not be undertaken in conventional practices. Examples could include the need to use a single ventilator for multiple patients at the same time, reuse of PPE, and withholding healthcare services in certain situations. It is in the public interest to afford healthcare providers involved in the delivery of healthcare impacted by COVID-19 with adequate protection against liability for good faith actions or omissions taken in their efforts to combat this health emergency.

Sections 8.01-225.01 and 8.01-225.02 of the Code of Virginia provide certain liability protection to healthcare providers during a state of emergency.

Section 8.01-225.01 provides in relevant part:

A. In the absence of gross negligence or willful misconduct, any health care provider who responds to a disaster by delivering health care to persons injured in such disaster shall be immune from civil liability for any injury or wrongful death arising from abandonment by such health care provider of any person to whom such health care provider owes a duty to provide health care when (i) a state or local emergency has been or is subsequently declared; and (ii) the provider was unable to provide the requisite health care to the person to whom he owed such duty of care as a result of the provider's voluntary or mandatory response to the relevant disaster.

Section 8.01-225.02 in relevant part provides:

In the absence of gross negligence or willful misconduct, any health care provider who responds to a disaster shall not be liable for any injury or wrongful death of any person arising from the delivery or withholding of health care when (i) a state or local emergency has been or is subsequently declared in response to such disaster, and (ii) the emergency and subsequent conditions caused a lack of resources, attributable to the disaster, rendering the health care provider unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency and which resulted in the injury or wrongful death at issue.

It is apparent that in enacting these provisions, the General Assembly intended to afford healthcare providers immunity from certain liability in exactly the circumstances presented by the COVID-19 health crisis. And so, is it imperative that it is clear that the liability protections in these provisions are meant to protect healthcare providers providing healthcare in response to the COVID-19 health emergency.

Directive

Therefore, by virtue of the authority vested in me by Article V, Section 7 of the Constitution of Virginia, by § 44-146.17 of the Code of Virginia and in furtherance of Executive Order No. 51, I clarify the following with respect to my executive actions and §§ 8.01-225.01 and 8.01-225.02 of the Code of Virginia:

1. COVID-19 is a "communicable disease of public health threat" as defined in § 44-146.16 of the Code of Virginia that constitutes a "disaster" as defined in § 44-146.16 of the Code of Virginia.

2. Executive Order No. 51 declares a state emergency in response to the COVID-19 disaster.

3. "Responds to a disaster" includes but is not limited to, pursuant to Order of Public Health Emergency Two as amended, temporary withholding of the provision of procedures, consultations or surgeries performed in an inpatient or outpatient surgical hospital licensed under 12VAC5-410, free-standing emergency department or endoscopy center, physicians' office, or dental, orthodontic, oral surgeon, or endodontic offices that require PPE, the delay of which was not anticipated to cause harm to the patient by negatively affecting the patient's health outcomes, or leading to disability or death.

4. "Emergency and subsequent conditions caused a lack of resources, attributable to the disaster, rendering the health care provider unable to provide the level or manner of care that otherwise would have been required in the absence of the emergency" shall be deemed to include but is not limited to: (i) insufficient availability of PPE, ventilators, or other drugs, blood products, supplies or equipment; (ii) insufficient availability of trained staff; (iii) having licensed healthcare professionals deliver care that, while included in the scope of their licensure, exceeds the scope of their credentials at the hospital or other health care facility at which they deliver services or exceeds the scope of the services that they normally provide; (iv) implementation or execution of triage protocols or scarce resource allocation policies necessitated by healthcare provider declaration of crisis standards of care; and (v) using supplies or equipment in innovative ways that are different from the way that these supplies and equipment are normally used.

5. Nothing in this Executive Order shall affect the right or ability to claim immunity from liability for any cause of action under any other federal or state law, regulation, rule, or order or any theory of common law immunity nor the right of any person to receive benefits to which he would otherwise be entitled under law nor the right of any such person to receive any benefits or compensation under any act of the General Assembly or United States Congress.

Effective Date of this Executive Order

This Executive Order shall be effective until the expiration of Executive Order 51 unless sooner amended or rescinded.

Given under my hand and under the Seal of the Commonwealth of Virginia, this 28th day of April, 2020.

/s/ Ralph S. Northam
Governor