LeadingAge NY Comments on Health Equity CON and PPE Stockpile Draft Regulations
The Public Health and Health Planning Council (PHHPC) will consider draft regulations to implement health equity impact assessments (HEIAs) of nursing home, hospital, and clinic certificate of need (CON) applications and an extension of the personal protective equipment (PPE) stockpile requirements for nursing homes and hospitals at its meeting on March 30, 2023. LeadingAge NY submitted comments on both regulations. The HEIA comments are available here, and the PPE stockpile comments are here.
The HEIA of nursing home CON applications was included in legislation enacted in 2021 and amended in 2022 (Public Health Law 2802-b) to require consideration of the impact on medically underserved groups of hospital and nursing home CON projects. The HEIA must be conducted by an independent individual or entity and must involve meaningful engagement of stakeholders. The medically underserved groups identified in the legislation include: "low-income people; racial and ethnic minorities; immigrants; women; lesbian, gay, bisexual, transgender, or other-than-cisgender people; people with disabilities; older adults; persons living with a prevalent infectious disease or condition; persons living in rural areas; people who are eligible for or receive public health benefits; people who do not have third-party health coverage or have inadequate third-party health coverage; and other people who are unable to obtain health care."
The draft regulations define the qualifications for the independent individual or entity conducting the HEIA and the projects that are subject to the HEIA requirements. CON construction projects and establishment projects requiring the approval of the PHHPC or the Commissioner of Health are subject to the requirements, except for the following:
- projects that are subject only to a notice requirement and not Department of Health (DOH) approval;
- projects that are subject only to a limited review under DOH regulations, unless the project would result in the elimination, reduction, expansion, or addition of beds or services;
- applications for establishment or transfer of ownership of an operator, unless the application would result in the elimination of a service; a 10 percent or greater reduction in the number of certified beds, certified services, or operating hours; or a change in location of a service;
- applications by diagnostic and treatment centers with a patient population of over 50 percent enrolled in Medicaid or uninsured (this exemption is set forth in the statute).
LeadingAge NY expressed concern in its comments that the role of the HEIA in CON determinations and the standards that would be applied to those determinations are not specified in the regulation. Further, the association noted that the regulation may result in added costs and delays that could jeopardize projects beneficial to the quality of life, quality of care, and safety of nursing home residents. It may also place at risk projects that are essential to the viability of the nursing home. For example, LeadingAge NY noted that many nursing homes are seeking to convert double rooms to single rooms and reconfigure space to mitigate infection transmission and improve the quality of life of residents. These projects should not be subject to HEIA requirements even though they involve decertification of beds.
The association's comments recommended an expansion of the exemptions from HEIA requirements for certain nursing home projects. For example, we recommend that the following nursing home projects be exempt from HEIA requirements: projects that improve the quality of life or safety of residents, those that involve a decertification of beds where there is no public need for the beds or if other criteria are met, those that would expand services for older adults or people with disabilities, and those that involve the elimination or relocation of duplicative services in the same area.
The HEIA regulations will be published in the State Register for public comment. They will return to the PHHPC for approval after the public comment period.
The PHHPC will also consider an extension of the emergency PPE stockpile regulation for nursing homes and hospitals at its meeting on March 30th. LeadingAge NY submitted comments noting that the updated inventory calculation methodology implemented two months ago continues to drive excessive stockpiling of PPE that may expire before it can be used, due to declining COVID-19 rates and relaxation of mask requirements in health care settings. The association also noted that the methodology inadvertently penalizes nursing homes that volunteered to be COVID-only facilities during the height of the pandemic. The comments reiterated that the methodology does not take into consideration reusable gowns and advocated for Medicaid reimbursement of PPE stockpile costs.
LeadingAge NY will keep members updated as these regulations progress through the adoption process.
Contact: Karen Lipson, klipson@leadingageny.org