PHHPC Committee Considers Health Equity CON Reg, Amendments to PPE Stockpile Reg, and COVID-19 Vaccination Mandate Removal

The Public Health and Health Planning Council's (PHHPC) Codes Committee recommended adoption of the proposed Health Equity Certificate of Need (CON) regulation and approval of a change in the personal protective equipment (PPE) stockpile requirements for COVID-19-only nursing homes at a meeting on June 15, 2023. The Codes Committee also discussed a draft regulation removing the COVID-19 vaccination mandate for health care personnel.

On the same day, the PHHPC Establishment Committee recommended approval of a diagnostic and treatment center (D&TC) and licensed home care services agency (LHCSA) to serve enrollees of Welbe Health, a new for-profit Program of All-Inclusive Care for the Elderly (PACE program) that is seeking approval to operate in NYC. The PHHPC meeting book includes information about the ownership of these two entities.

Health Equity CON Regulation

The Health Equity CON regulation will apply to specified CON applications submitted by hospitals, nursing homes, and certain D&TCs on or after June 22, 2023. All CON construction applications that require "full" or "administrative" review, and all "limited review" applications that involve a substantial change in beds or services, will be subject to a Health Equity Impact Assessment (HEIA) and review. At the PHHPC Codes Committee meeting, the Department of Health (DOH) noted that it would be publishing a second proposed regulation making minor modifications to clarify that limited review applications would be subject to HEIA requirements only if they involve a 10 percent or greater reduction or expansion of beds or services or change in location. Similarly, establishment applications will be subject to HEIA requirements only if they involve a 10 percent or greater change in services or change in location.

The Department has created a webpage for the HEIA process here and will be updating the NYS Electronic CON (NYSE-CON) system to add an HEIA checklist and other program documents here. Questions may be posed to the DOH HEIA team here.

Although LeadingAge NY supports the goals of the HEIA, the association submitted comments on the proposed regulations seeking to ensure that the review process would not delay or deter projects that would be beneficial to the quality of care or quality of life of residents. The association sought expanded exemptions for minor projects and projects that would promote access to care for older adults and people with disabilities. More information about the HEIA CON regulation and LeadingAge NY's comments are available here.

PPE Stockpile Regulation

The PHHPC Codes Committee also recommended approval of a change in the methodology used to calculate the required PPE stockpile for nursing homes that were designated as "COVID-19-only" during the height of the pandemic. Going forward, the required inventory for these facilities will be based on a COVID-19 positivity rate of 20.15 percent, representing the highest Regional Economic Development Council (REDC) average positivity rate during the two peak periods of COVID-19 prevalence. Under the existing definition, COVID-19-only facilities have been required to maintain PPE stockpiles based on rates at or approaching 100 percent, leading to excess inventory and wasted resources.

This change in the regulation, as well as a prior change that reduced excessive inventory requirements, arose out of advocacy by LeadingAge NY. The association's most recent comments on the PPE regulation are here.

Health Care Personnel Vaccination Requirements

The PHHPC Codes Committee reviewed draft regulations that would remove the health care personnel COVID-19 vaccination requirement. The regulations were presented for information only and have not yet been published in the State Register. The comment period will expire in early September – just days after the September PHHPC meeting. PHHPC members expressed concern that they will not be able to approve the regulations for adoption until their November meeting. However, DOH has notified providers via a Dear Administrator Letter (DAL) that it will not be enforcing the COVID-19 vaccination requirement while the new regulations are pending.

Contact: Karen Lipson, klipson@leadingageny.org