Governor Newsom Continues to Fine Tune California’s Response to COVID-19

On March 21, 2020 Governor Newsom of California issued Executive Order 3.21.20 EO-N-35-20 (the “EO”) covering an array of issues related to the COVID-19 pandemic. Some of the provisions are specifically relevant to the health care industry, including giving directors of specified departments of State government the authority to issue waivers or limit certain admissions and discharges. The EO also includes provisions not related to the health care industry. 

Provisions Related to the Health Care Industry

• Section 1 of the EO gives the Director of the State Department of Public Health, for the duration of the declared emergency, the power to waive any of the licensing and staffing requirements in the applicable chapter of division 2 of the Health and Safety Code and any accompanying regulations with respect to any:
  • Clinic (chapter 1),
  • Adult day health care (chapter 3.3),
  • Hospice (chapter 8.5), or
  • Mobile health care unit (chapter 9).

  Any waiver shall include alternative measures that, under the circumstances, will allow the clinic, adult day health care, hospice, or mobile health care unit to assist in the care or protect the health of individuals while protecting public health and safety. Any waiver granted shall be posted on the Department's website.

  Depending on the nature of specific actions taken by the Director of the Department of Public Health, this provision could create flexibility for the provider entities as they gear up to treat a potential expanded patient load, and expand the number of providers available for patients and for health plans and insurers to contract with for services. 

• Section 5 of the EO gives the Director of the State Department of State Hospitals the power to issue directives waiving requirements in the Welfare and Institutions Code or Penal Code relating to the treatment of persons with mental illness committed to in the State Department of State Hospitals. This is to ensure that patients with mental health services continue to receive services and protect those committed to State Department of State Hospitals facilities. Any waiver will expire in 30 days, although the Director may issue one or more 30 day extensions. The California State Department of State Hospitals’ website should be checked for the specific waivers issued. 

  These waivers could impact the availability of mental health

• Section 6 of the EO gives the Director of the Department of Developmental Disabilities is authorized to deny admission or delay discharge of all individuals judicially or otherwise admitted, committed or ordered to the Porterville Developmental Center; the Canyon Springs Community Facility; a Stabilization, Training Assistance, and Reintegration (STAR) home; or any other facility under the jurisdiction or control of the Department for 30 days after the issuance of this Order. This is to safeguard those persons already admitted, committed, or ordered to the facilities described in this paragraph and notwithstanding the Penal Code or the Welfare and Institutions Code. The Director may grant one or more 30-day extensions. The Director shall post the notice of closure of admissions and discharges and the extension of closure to the facility on the Department's website.

  Denying admission or delaying discharge may negatively impact the availability of these providers to treat new patients. 

Provisions Not Related to the Health Care Industry

The EO also contained provisions not related to health care industry, which are summarized below. 

• Section 2 of the EO waives application of the Brown Act or the Bagley-Keene Act (both relating to public meeting requirements), as applicable, to allow members of a local legislative body or state body to receive updates relevant to the declared emergency regarding COVID-19 from federal, state, and local officials, and may ask questions of those federal, state, and local officials, in order for members of the legislative body to stay apprised of emergency operations and the impact of the emergency on their constituents. The Order does not permit the members of a local legislative body or state body to take action without complying with the Brown Act or the Bagley-Keene Act. Nothing in this section shall impact Paragraph 3 of Executive Order N-29-20 relating to public meetings held via teleconference.
• Section 3 of the EO ensures local governments can hire CALPERS system retired annuitants without hour cap, consistent with a previous Executive Order E- 25-20 that allowed to the state government to make such hires. 
• Section 4 of the EO suspends local ordinances, including noise ordinances, restricting deliveries of food, pharmaceuticals, and emergency supplies.
• Section 7 of the EO extends by 60 days the deadlines specified in Education Code section 44242.7(a), and California Code of Regulations, title 5, section 80306, related to the formal review of disciplinary cases and determination of any adverse action by the Committee of Credentials; Education Code section 44343.5, related to the processing of military spouse or partner applications; and Education Code section 44350, related to processing educator applications.
• Section 8 of the EO extends by 60 days the deadline specified in Government Code section 11517(c)(2), related to an agency's action on an administrative law judge's proposed decision.
• Section 9 of the EO extends by 60 days the deadlines specified in Government Code section 1774(a) and (b), related to reappointment of an incumbent.
• Section 10 of the EO extends by 60 days the deadline specified in Government Code section 12011.5(c), related to State Bar's transmittal of its report to the Governor of its evaluation of all judicial candidates referred by the Governor.
• Section 11 of the EO extends by 60 days the time for presenting a claim pursuant to Government Code section 911, et seq. and the time within which the Department of General Services may act upon such claim.
• Section 12 of the EO extends by 60 days the time limitation set forth in Penal Code section 4750(j) for any jurisdiction submitting a claim for reimbursement. The State Controller shall have the discretion to provide the additional time extension, as appropriate.