COVID-19: NYS Hospital Capacity to Increase Amidst Unprecedented Regulatory Pragmatism

Governor Andrew Cuomo recently issued Executive Order No. 202.5, which allows the state to rapidly increase hospital capacity to prepare the NYS health care system to handle the potential influx of patients suffering from COVID-19. To accommodate the anticipated increase in admissions, Governor Cuomo is mandating the NYS Department of Health to suspend and relax certain regulations to allow existing hospitals to rapidly increase space and capacity.

1. Executive Order No. 202.5 calls for the following temporary modifications and suspensions of relevant statutes and regulations, including those affecting the medical professions:
2. Education Law §§ 6512‒6516 and § 6524 as well as part 60 of Title 8 of the New York Codes, Rules, and Regulations (NYCRR): Allowing physicians licensed and in good standing in any state in the United States to practice medicine in New York State without civil or criminal penalty related to lack of licensure
3. Education Law §6502 and 8 NYCRR Part 59.8: Allowing physicians licensed and in current good standing in New York State but not registered in New York State to practice within the state without civil or criminal penalty related to lack of registration
4. Education Law §§6512 through 6516, § 6905, § 6906, and §6910 and Part 64 of Title 8 of the NYCRR: To the extent necessary to allow registered nurses, licensed practical nurses, and nurse practitioners licensed and in current good standing in any state in the United States to practice in New York State without civil or criminal penalty related to lack of licensure
5. Education Law §§ 6512‒6516 and § 6541 and 8 NYCRR Part 60.8: To the extent necessary to allow physician assistants licensed and in current good standing in any state in the United States to practice in New York State without civil or criminal penalty related to lack of licensure
6. 10 NYCRR § 400.12: To the extent necessary to allow patients affected by the disaster emergency to be transferred to receiving Article 28 facilities as authorized by the commissioner of health
7. 10 NYCRR 405: To the extent necessary to allow a general hospital to adopt existing policies and procedures at a new, temporary facility created for the purpose of treating patients during the COVID-19 outbreak
8. Any code related to construction, energy conservation, and building codes and all state and local laws, ordinances, and regulations related to administration and enforcement of the foregoing: To the extent necessary to allow, upon approval by the commissioner of health or the Office for People With Developmental Disabilities commissioner as applicable, temporary changes to physical plant, bed capacities, and services provided; the construction of temporary hospital locations and extensions; the increase in and exceeding of certified capacity limits; and the establishment of temporary hospital locations and extensions.¹

Along with the increase in medical personnel needed to address the rapid spread of COVID-19, Governor Cuomo anticipates the creation of field hospitals to accommodate the infected population. In a broadly coordinated effort, the National Guard will work with local unions and private developers to repurpose existing facilities, such as abandoned nursing homes and school buildings, that may be used as field hospitals to alleviate the large number of hospital beds required to accommodate those who may need intensive care for more severe respiratory conditions.²

To date, New York State has identified four temporary hospital sites, including the Jacob K. Javits Convention Center and locations at State University of New York (SUNY) Stony Brook, SUNY Old Westbury, and the Westchester Convention Center.³ Hospitals at the SUNY campus sites will be constructed indoors with outdoor tent support, and the health care staff will stay in the campus while working at the sites.⁴ The state has also leased the Brooklyn Health Center for Rehabilitation and Health Care to serve as a temporary hospital while construction begins at the SUNY campuses.⁵

On the federal side, assistance is coming in the form of the USNS Comfort, a 1,000-bed hospital ship scheduled to arrive to provide further medical support.⁶ The ship will also provide 12 fully equipped operating rooms^.7 Through the Federal Emergency Management Agency, four federal hospital facilities will be erected within the Javits Center, each providing fully equipped and fully staffed facilities and an additional 250 hospital beds.⁸ The goal is to create an additional 9,000 beds needed to accommodate acute medical needs during the outbreak.⁹

If you have any questions regarding the content of this alert, please contact Linda Clark, Health Care Controversies Team leader, at lclark@barclaydamon.com; Brenda Baddam, associate, at bbaddam@barclaydamon.com; or another member of the firm’s Health Care Controversies Team.

¹ Exec. Order No. 202.5 (March 20, 2020).

¹ Exec. Order No. 202.5 (March 20, 2020).

² During Coronavirus Briefing, Governor Cuomo Issues Executive Order Allowing State to Increase Hospital Capacity, New York State Governor Andrew M. Cuomo (2020), https://www.governor.ny.gov/news/video-audio-photos-rush-transcript-during-coronavirus-briefing-governor-cuomo-issues-executive.

³ Amid Ongoing COVID-19 Pandemic, Governor Cuomo Accepts Recommendation of Army Corps of Engineers for Four Temporary Hospital Sites in New York, New York State Governor Andrew M. Cuomo (2020), https://www.governor.ny.gov/news/amid-ongoing-covid-19-pandemic-governor-cuomo-accepts-recommendation-army-corps-engineers-four.

⁴ Id.

⁵ Id.

⁶ Amid Ongoing Covid-19 Pandemic, Governor Cuomo Announces Deployment of 1,000-Bed Hospital Ship ‘USNS Comfort’ to New York Harbor, New York State Governor Andrew M. Cuomo (2020), https://www.governor.ny.gov/news/amid-ongoing-covid-19-pandemic-governor-cuomo-announces-deployment-1000-bed-hospital-ship-usns.

⁷ Id.

⁸ See supra note 3.

⁹ See supra note 2.