Governor Clears Path to Resume Elective Surgeries in New York Hospitals

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Late last week, Gov. Cuomo issued an executive order which in effect overrules one of his prior directives canceling all elective surgeries and procedures at general hospitals. Executive Order 202.25 allows general hospitals to resume elective surgeries and procedures so long as specific criteria are met within the county (where the hospital is located) and by hospital -- namely, the total number of available hospital beds and the ICU capacity must be over 30 percent, and the total change, from April 17, 2020, to April 27, 2020, in the number of hospitalized patients who are positive for COVID-19, is fewer than ten.

Hospitals that do not satisfy the eligibility criteria may seek a waiver from the Department of Health. To qualify for the waiver, the hospital must submit a plan that includes, at a minimum, their facility capacity, physical configuration, infectious disease protocols, and staffing capacity, including any applicable employment hardship information that includes any reductions in workforce, including furloughs, that have occurred as a result of being unable to perform elective surgeries or procedures; or any reductions in workforce, including furloughs, that may imminently occur for the same reason.

Once approved, hospitals shall not perform any elective surgery or procedure for patients until each such patient has tested negative for COVID-19 through an approved diagnostic test. Also, all eligible hospitals authorized to perform elective surgeries and procedures must report, at a minimum, the number and types of surgeries and procedures performed to the Department of Health. The Commissioner of Health will issue additional guidance concerning the implementation of the above criteria.

After nearly six weeks of canceling or pausing elective procedures, New York hospitals welcome the ability to resume certain surgeries and procedures. The loss of this ability cost hospitals millions of dollars, caused operational disruption and employment hardship. Given the ongoing COVID-19 restrictions, hospitals will now have to prioritize the reopening of elective surgeries and procedures and carefully script the clinical need as well as answer the key questions of “who, what and when.” Most hospitals – upon eligibility – will slowly phase elective procedures back into the normal schedule to monitor capacity, adhere to infectious disease restrictions and otherwise comply with the Governor’s, DOH’s and federal COVID-19 mandates.

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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