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Nursing Home PPE Stockpile Regulation Published for Comment and Permanent Adoption

The Department of Health (DOH) has renewed emergency regulations governing nursing home and hospital personal protective equipment (PPE) stockpiles, with a modest change for facilities once designated as COVID-19-only nursing homes, and proposed the revised regulations for comment and permanent adoption. Comments on the new proposed regulations are due Aug. 14, 2023 and may be submitted here.

The regulations, which were first promulgated on an emergency basis in 2020 and initially proposed for permanent adoption in early 2022, require nursing homes and hospitals to maintain a 60-day stockpile of PPE. The required PPE inventory is based on average annual census as calculated by DOH, use rates derived from an academic study, and COVID-19 positivity rates during peak periods.

The renewed emergency regulations and revised proposed permanent regulations modify the formula for nursing homes that were designated as "COVID-19-only" during the height of the pandemic. Under the new regulations, the required inventory for these facilities will be based on a COVID-19 positivity rate of 20.15 percent, representing the highest Regional Economic Development Council (REDC) average positivity rate during the two peak periods of COVID-19 prevalence. Under the prior regulation, COVID-19-only facilities were required to maintain PPE stockpiles based on rates at or approaching 100 percent, leading to excess inventory and wasted resources.

The renewed emergency regulations and proposed permanent regulations also maintain the change adopted in February 2023 – calculating the required inventory for nursing homes based on average census as determined by Jan. 1st annually by DOH, rather than based on certified beds. The Department has calculated average annual census using each facility's Health Emergency Response Data System (HERDS) COVID-19 survey submissions for 2022.

These changes in the regulations were prompted by LeadingAge NY's advocacy highlighting the excess inventory and waste generated by the prior iteration of the regulations. In its "assessment of public comments" on the original proposed regulations, the Department indicated that it received comments from three associations: an association representing nursing homes (presumably LeadingAge NY); an association representing hospitals and health systems; and an association representing hospitals, health systems, and nursing homes.

In its comments, LeadingAge NY requested, among other changes, greater specificity in the required inventory of reusable PPE (e.g., gowns), as opposed to single-use, disposable PPE. We pointed out that counting reusable PPE the same way as disposable PPE results in undercounting of the more expensive reusable varieties and incentivizes the use of the less economical and more environmentally harmful disposable types. DOH responded:

The Department finds that there is no reliable, accurate method to calculate single- versus multi-use PPE differently. Manufacturers have varying standards for reusability, there is no sound way for facilities to account for PPE that is being worn or washed when calculating the stockpile, and in the past facilities have inaccurately reported their reusable PPE amounts when the Department employed a standard adjustor to account for reusability. Accordingly, no modifications have been made to this regulation as a result of these comments.

LeadingAge NY's most recent comments to the Public Health and Health Planning Council (PHHPC) are available here, and our formal comments on the original proposed regulations are here. More information about the regulations is available here and here. LeadingAge NY encourages members to submit comments on the revised proposed regulations to LeadingAge NY and DOH. If members would like their comments incorporated into the association's comments, please provide them to Karen Lipson by July 30th.

Contact: Karen Lipson, klipson@leadingageny.org