DOH Republishes Emergency Regulations Governing Nursing Home PPE Stockpiles and Surge and Flex Health Care Coordination
On July 30, 2021, the Department of Health (DOH) republished emergency regulations governing nursing home and hospital personal protective equipment (PPE) stockpiles and surge and flex health care coordination during public health emergencies. The regulations took effect on July 30th and will expire after 60 days, unless they are readopted. Although it is effective July 30th, the PPE regulation gives nursing homes until Aug. 31, 2021 to possess the required stockpile. The PPE stockpile regulation is available here, and the surge and flex regulation is here.
PPE Stockpile Regulation
The republished PPE regulation includes a new methodology for calculating the amount of PPE that must be included in each facility's stockpile. Whereas the prior methodology relied on PPE use rates from April 2020, the new methodology is based on the facility's number of certified beds on its operating certificate multiplied by a specified factor for each type of PPE and a peak positivity rate. Specifically, the regulation sets forth the following method for calculating the required number of gloves, gowns, surgical masks, and N95 masks:
- for single gloves, the applicable positivity rate, multiplied by the number of beds, multiplied by 24;
- for gowns, the applicable positivity rate, multiplied by the number of beds, multiplied by 3;
- for surgical masks, the applicable positivity rate, multiplied by the number of beds, multiplied by 1.5; and
- for N95 respirator masks, the applicable positivity rate, multiplied by the number of beds, multiplied by 1.4.
The “applicable positivity rate” to be used in the calculation is the greater of [sic] the following:
- The nursing home’s average COVID-19 positivity rate, based on reports made to the Department, during the period April 26, 2020 through May 20, 2020; or
- The nursing home’s average COVID-19 positivity rate, based on reports made to the Department, during the period Jan. 3, 2021 through Jan. 31, 2021; or
- 20.15 percent, representing the highest Regional Economic Development Council (REDC) average COVID-19 positivity rate, as reported to the Department, during the periods April 26, 2020 through May 20, 2020 and Jan. 3, 2021 through Jan. 31, 2021.
A facility that fails to maintain the required supply of PPE may be subject to the revocation, limitation, or suspension of its license. However, the Department must provide the nursing home with a 14-day grace period, solely for its first violation of this section, to achieve compliance with the requirement.
Surge and Flex Health Coordination System Regulation
The surge and flex health coordination system regulation is intended to provide regulatory support for the "surge and flex system" implemented during the pandemic to ensure a coordinated statewide health care system and to distribute resources and admissions to prevent hospitals from being overwhelmed. The regulation clarifies the Commissioner of Health's authority to take certain actions, such as suspending or modifying regulations in the event of a state disaster emergency. In certain sections, the regulation uses vague terms to describe the providers covered, including "health care facilities" and "regulated entities." As a result, it is difficult to determine the scope and applicability of certain provisions.
The regulation requires regulated "health care facilities" to comply with a Commissioner's directive to increase by up to 50 percent the number of acute care beds and/or change the service categories of beds, and/or to postpone non-essential elective procedures. It requires DOH to establish procedures to approve temporary changes at regulated health care facilities to physical plants in order to facilitate the increased capacity and expedite review of construction applications related to temporary locations. It also requires health care facilities to establish plans to meet enhanced staffing levels sufficient to ensure that the increased bed capacity has adequate staffing. It allows the Commissioner to expand or modify criteria for staffing and requires health care facilities to have access to a State-run portal for staffing needs.
The surge and flex regulation imposes on "health care facilities" a requirement to maintain and manage a 60-day supply of PPE, echoing separate regulations imposed on nursing homes and hospitals. Although the use of the term "health care facilities" is unclear, this section also references section 405.11(g) of the regulations – a section applicable only to general hospitals. The regulation authorizes the Commissioner to redistribute the resources of a regulated entity if there is a determination that resources are limited and redistribution is necessary to protect the health and safety of New Yorkers.
The regulation requires health care facilities to respond to directions by the Commissioner to rapidly discharge, transfer, or receive patients, while protecting the health and safety of such patients and residents. In addition, it provides the Commissioner with authority to waive various clinical lab requirements, including authorizing pharmacists to order lab tests and allowing clinical labs to accept specimens without an order.
Finally, the regulation requires general hospitals to develop detailed disaster emergency response plans, to maintain a 60-day supply of PPE, to ensure that remote staff have the equipment and training to do so, and to report data requested by the Commissioner.
LeadingAge NY recognizes that members have many questions concerning the implementation of the new PPE stockpile methodology and the scope of the surge and flex regulation. We are seeking clarification from DOH.
Contact: Karen Lipson, klipson@leadingageny.org, 518-867-8838