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Governor Issues New EO Declaring State of Emergency and Extends Previous EO on Health Care Staffing Shortages

Last week, Governor Hochul issued an executive order (EO) declaring a state of emergency through Jan. 15th. According to the Governor’s press release, the new protocols will begin on Dec. 3rd and be reassessed based on the latest COVID-19 data on Jan. 15th. The order does several things, including allowing the State to acquire more quickly any critical supplies to combat the pandemic by circumventing the usual contracting process, and it implements the State’s Comprehensive Emergency Management Plan to authorize State agencies to take appropriate actions to assist local governments and individuals in managing the emergency. Most pertinent to the LeadingAge NY membership, however, is that this declaration satisfies the requirements of Part 360 of the New York State Codes, Rules, and Regulations to allow the State to utilize the Surge and Flex Health Care Coordination System. Members may recall that emergency regulations regarding the Surge and Flex system were implemented earlier this year and can be accessed here.

The Surge and Flex regulations allow the State to modify requirements for hospitals, nursing homes, and adult care facilities (ACFs), including capacity and staffing requirements, for the purpose of maximizing the efficiency and effectiveness of the State’s health care delivery systems and mitigating the threat to the health of the people of New York. Specifically, they give the Health Commissioner, in the event of a declared State disaster emergency, authority and procedures to activate the Surge and Flex system, which may include activities such as:

  • Strategies to increase bed capacity, including the ability to postpone up to 100 percent of non-essential elective procedures in hospitals or allow such procedures only under certain circumstances; approve temporary changes at regulated health care facilities to physical plants, to facilitate the increased capacity; and expedite review of construction applications.
  • Strategies to enhance staffing capacity, including directing health care facilities (nursing homes and hospitals) to establish plans to meet enhanced staffing levels sufficient to ensure that the increased bed capacity has adequate staffing and expanding or modifying criteria for staffing. The regulation also indicates that health care facilities shall have access to a State-run portal for staffing needs, identifying both volunteers and available staff, whether licensed or registered in New York State, or authorized or licensed to practice in any other state or Canada.
  • Strategies for ensuring availability of supplies and personal protective equipment (PPE): Health care facilities shall maintain and actively manage a supply of PPE appropriate for use during a declared health emergency that could last at least 60 days pursuant to Section 405.11(g) of the regulations. The Commissioner shall have all necessary authority to redistribute the resources of a regulated entity.
  • Strategies for discharging, transfer, and receiving of patients: Health care facilities regulated by the Department of Health (DOH) shall, if directed to do so by the Commissioner, rapidly discharge, transfer, or receive patients, while protecting the health and safety of such patients and residents, and consistent with the Emergency Medical Treatment and Active Labor Act (EMTALA). The Department shall coordinate with health care facilities to balance individual facility patient load and may promulgate further directives to specify the method and manner of transfer or discharge.

Of the aforementioned flexibilities and processes that the Surge and Flex regulations permit, the Governor is currently taking steps to postpone non-essential elective procedures in hospitals or systems with limited capacity to protect access to critical health care services. Limited capacity is defined as below 10 percent staffed bed capacity, or as determined by DOH based on regional and health care utilization factors. Aside from the obvious implications, this current strategy could have an impact on referrals and financial status, particularly for nursing homes and certified home health agencies (CHHAs) that provide post-acute care and rehabilitative services after surgeries, for example.

LeadingAge NY will keep members apprised of any further developments or actions on the part of the State as a result of this EO and Surge and Flex activities.

Meanwhile, Governor Hochul extended EO 4 over the weekend providing continued staffing flexibilities for health care providers as they continue to deal with worker shortages caused by the vaccine mandates and the pandemic in general. EO 4.2 extends EOs 4 and 4.1 until Dec. 26th. The new EO provides only an extension, not additional flexibilities.

Members should review the first two EOs to note the flexibilities provided. Some EO 4 flexibilities include:

  • the ability for nurses to order the collection of specimens for COVID-19 testing;
  • the ability for physicians and nurse practitioners to issue non-patient-specific orders to nurses and other persons for COVID-19 testing and COVID-19 and flu vaccinations and the performance of tasks under the supervision of a nurse that would otherwise be limited to the scope of practice of a nurse;
  • the ability for non-nursing staff to collect specimens for COVID-19 testing and administer COVID-19 and flu vaccinations; and
  • expanded community paramedicine.

EO 4.1 returns flexibilities specific to home care providers allowing for remote supervision and assessments by video or audio. More information on the EOs is available here.

Contact: Diane Darbyshire, ddarbyshire@leadingageny.org, or Meg Everett, meverett@leadingageny.org. Both can be reached at 518-867-8383.