COVID-19 Executive Order Limits Nonessential Elective Procedures in Hospitals with Limited Capacity

Manatt, Phelps & Phillips, LLP

Manatt, Phelps & Phillips, LLP

In Executive Order No. 11, issued on November 26, Governor Hochul triggered the authority granted under the emergency Surge and Flex Response Plans (10 NYCRR Part 360) to limit nonessential elective procedures and/or implement other actions to ensure New York health systems and hospitals (Impacted Facilities) can address potential capacity constraints. The Department of Health (DOH) issued guidance on December 3 detailing the Surge and Flex protocols, which establishes assessment criteria, reviewed on a weekly basis, to determine when and which facilities must limit nonessential elective procedures and/or implement other actions. Initial determinations for Impacted Facilities will be issued by December 6, and the limitation on procedures will apply to procedures scheduled to occur on or after December 9.1

The assessment criteria to determine Impacted Facilities under the guidance includes both regional- and facility-level risk assessments. To qualify as an Impacted Facility, a hospital must meet the criteria for being a “High Risk Region” and have low facility capacity. High Risk Regions are defined as (1) low current regional capacity (staffed acute bed occupancy rate for the region at 90% or higher, based on the previous seven-day average), OR (2) decreasing current regional capacity (staffed acute bed occupancy rate for the region at 85%-90%, based on the previous seven-day average, and the new COVID-19 hospital admission rate for the region is greater than 4.0, based on the previous seven-day average per 100,000 population). For hospitals located in High Risk Regions, a facility-level risk assessment will be completed to review facility capacity, which is defined as the staffed acute bed occupancy rate for the facility at 90% or higher, based on the previous seven-day average.

DOH will determine Impacted Facilities on a weekly basis. Determinations will be issued to Impacted Facilities, and the facilities must defer nonessential elective procedures for at least two weeks in accordance with the guidance. According to the timeline identified in the guidance, facilities designated as Impacted Facilities will be notified on Fridays, and the procedure limitations will take effect the following Thursday.

Upon designation as an Impacted Facility, such facilities may be required to limit nonessential elective procedures both within the hospital and at hospital-owned ambulatory surgery centers. Impacted Facilities must defer all nonessential elective in-patient and out-patient procedures that are completed within the hospital. For Impacted Facilities with occupancy of 95% or higher (based on the previous seven-day average), all nonessential elective ambulatory procedures must be deferred.

As part of the guidance, DOH expressly retains the discretion to (1) add, remove or change restrictions or thresholds for regions or facilities, accounting for transmission rates, hospitalization rates and other public health considerations upon reasonable notice; and (2) require any facility, regardless of the assessment criteria, to limit nonessential elective procedures and/or implement other actions to coordinate services, as determined by DOH as necessary to protect public health.

The guidance directs all hospitals, including those that do not meet the criteria of an Impacted Facility, to implement load balancing within their systems, provided they do not transfer patients outside their systems for the sole purpose of meeting the capacity threshold, noting that transfers out of trauma hospitals for the purpose of reducing ICU occupancy are permitted. In addition, all hospitals are requested to participate in regional coordination calls.

1The guidance clarified that, at this time, the Surge and Flex protocols do not apply to single specialty facilities (e.g., a cancer treatment facility), nonhospital-owned ambulatory surgery centers, office-based surgery practices, or free-standing diagnostic and treatment centers.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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