September 30, 2020

New York State Implements New Surge and Flex Health Coordination System Regulations for Health Care Facilities and Agencies

New provisions have been added to Titles 10 and 18 of the New York Codes Rules and Regulations (“NYCRR”) that broaden the power of the Commissioner of Health for New York State (“Health Commissioner”) and establish the Surge and Flex Health Care Coordination System, which will regulate the Surge and Flex strategy that the State developed in the wake of COVID-19. These new regulations are aimed at increasing the State’s flexibility to establish new requirements in order to better respond to a declared state disaster emergency, such as COVID-19.

While the Governor still has the power to issue Executive Orders, according to Section 29-a of the New York State Executive Law, the Health Commissioner now has similar power to temporarily suspend or modify any regulations contained in Titles 10 and 18 of the NYCRR if those regulations wouldinterfere with the State’s ability to deal with a state disaster emergency. In particular, the new regulations also allow the Health Commissioner to modify or suspend regulations so that they are consistent with temporary suspensions or modifications of laws made through Executive Order by the Governor.

Under the new regulations, the Health Commissioner can activate the Surge and Flex Health Care Coordination System in the event of a declared state disaster emergency. Guidance is provided in the Department of Health (DOH) regulations for health care facilities on the various requirements under the Surge and Flex Health Care Coordination System. The regulations lay out the minimum requirements for the emergency plans, such as a bed surge plan and a Personal Protective Equipment (PPE) surge plan. Additionally, under the regulations, every general hospital must create their own emergency Surge and Flex Response plan.

The new regulations grant, among other things, the Health Commissioner the power to authorize clinical laboratories to run temporary specimen collecting stations in the event of a declared state disaster emergency. Further, the Health Commissioner can also authorize licensed pharmacists to order tests from clinical laboratories. All positive tests must immediately be reported through an Electronic Clinical Laboratory Reporting system.

For more information, please see the August 26, 2020 New York State Register. If you have any questions about the new requirements of the Surge and Flex Health Care Coordination System, please contact David R. Ross, Esq., Senior Shareholder, via e-mail at dross@oalaw.com. Law Clerk Colleen Pierson contributed to this article.