1. (1) First, the State quickly built unprecedented hospital capacity. Health experts modeled that New York State could potentially need as many as 140,000 COVID-only hospital beds when there were only 53,000 hospital beds total in the entire State. As a result, New York State had to quickly build unprecedented bed capacity including requiring all hospitals to delay non-life-threatening elective procedures and increase their number of beds by at least 50 percent (by turning single rooms into doubles and freeing meeting rooms and other areas for patient care among other measures) and preferably 100 percent. In addition, the State worked with local and Federal government partners to deploy and stand up temporary hospitals and create contingency plans with large-scale venue operators, hotels, and college dormitory operators, to ensure we were prepared for a worst-case scenario - a projected need for as many as 140,000 COVID patients hospitalized at one time. In total, this approach enabled New York State in a matter of weeks to expand hospital capacity from 53,000 total beds to more than 90,000.
2. (2) Second, more beds require more staff. Staffing was a major issue. In many cases, health care staff were becoming sick with COVID and unable to work. This put tremendous strain on the system. To address staffing shortages, New York State established a web portal to recruit and connect health care professionals from across the nation willing to serve, an effort that enlisted the support of nearly 100,000 health care workers. New York State connected these healthcare heroes with housing as needed and provided support to hospital human resource offices to expedite the onboarding process. Further, New York State facilitated transfers of healthcare staff from upstate hospitals that had few COVID-19 patients to hospitals in New York City in need of staffing support. In the case of another wave of COVID-19 or another infectious disease it is critical that extra staffing capacity be available to meet the emergency.
3. (3) Third, more beds require more supplies and equipment. Access to life-saving supplies and materials was a scramble for every state in the nation because our country is reliant on an international supply chain. There was a dire need for ventilators and there was a literal hunger games scenario among states and nations to purchase enough to meet the demand under the crisis. But purchasing alone wasn’t enough. There simply weren’t enough supplies. To address any potential supply and equipment shortages, New York State used data and a daily reporting system to build a statewide inventory of personal protective equipment (PPE), ventilators, medications and other critical items. Using a reporting system, New York State could take limited resources and distribute them to the hospitals and other institutions that needed them the most. For example, a hospital in New York City may have had only a few ventilators while other facilities nearby had more than 100. The Surge and Flex system allowed for the overburdened hospital to get unused ventilators from a nearby facility. New York State distributed more than 13,000,000 pieces of PPE and other equipment, including thousands of ventilators. To ensure no hospital lacked supplies and equipment while others had excess, the State built an operational system that could quickly transport supplies and equipment from a hospital with excess to a hospital in need.

4. (4) Fourth, the State had to coordinate all aspects of the Surge and Flex operation. For this operational undertaking, the State convened a Hospital Capacity Coordination Committee (HCCC), an around the clock command center with representatives from each of the State’s hospital systems to serve as the central hub for operations related to patient transfers, supply and equipment deployment, and staffing support. Guided by online data dashboards that tracked hospital capacity, equipment use, and supply stockpiles by institution in real time, and provided a 24/7 hotline accessible to every hospital in the State, the HCCC had a dedicated desk and assigned leader for every aspect of the operation: patient management, supply and equipment deployment, staffing deployment, and for each supporting function including transportation, legal, and intergovernmental relations.

   Taken together, the Surge and Flex strategy enabled New York during our apex in late March and through the month of April to save lives and avoid the type of catastrophic failure of the healthcare system that Italy and other nations experienced. This regulation provides the Department of Health with the necessary tools to enact each of these four critical parts of NYS Surge and Flex operation during a second wave of COVID-19, or a future public health emergency. Further, this regulation is designed to help each hospital and healthcare system prepare for this contingency in order to ensure a straightforward transition from standard operating procedures to Surge and Flex.

   (b) Application and scope.

   In the event of a State disaster emergency declared pursuant to section 28 of the Executive Law, the commissioner may exercise the authorities granted in this Part, thereby maximizing the efficiency and effectiveness of the State’s health care delivery systems and mitigating the threat to the health of the people of New York. Further, this Part establishes certain ongoing emergency planning requirements, called the Surge and Flex Health Care Coordination System, for facilities and agencies regulated by the department. To the extent that any provision of this Part conflicts with any other regulation of the department, this Part shall take precedence. All authorities granted to the commissioner shall be subject to any conditions and limitations that the commissioner may deem appropriate. The commissioner may delegate activation of the authorities provided by this Part to appropriate executive staff within the department. In the event that there are inconsistent statutes, which would preclude effectiveness of such regulation, such regulation shall be effective upon the suspension of such inconsistent statute by the Governor pursuant to authority in article 2-B of the Executive Law, and such regulation shall immediately be effective.

(a) Administrative purpose.

As of July 2020, there are 213 hospitals - public, private, and independent - across New York State, each operating as essentially a private entity in a highly competitive environment. Prior to the COVID-19 pandemic, these individual institutions and hospital networks rarely worked together or coordinated as a unified healthcare system. But a pandemic on the scale of the COVID-19 crisis demonstrated that our health care facilities could not meet the demand of the moment unless a new and innovative system was put into place requiring unprecedented coordination, cooperation, and agility. No one situation best encapsulates this lack of coordination than what transpired at Elmhurst Hospital, a facility in the New York City-operated Health & Hospitals (H&H) system, during the third week of March. Elmhurst Hospital was overwhelmed with patients at a time when there were just 4,000 total COVID-19 hospitalizations statewide, nearly 900 available beds across the eleven hospitals in the H&H system, and more than 3,500 open beds across all public and private hospitals in New York City. In other words, the problem the Elmhurst situation exposed was not one of hospital capacity, but one of patient load management across all hospitals and hospital systems. As the Elmhurst situation demonstrated, the COVID-19 crisis demanded a new coordinated approach to ensure no one hospital was overwhelmed by COVID-19 patients or needed more ventilators, while a hospital nearby had capacity for more patients and excess equipment. There was an immediate realization that if peak projections actually materialized in New York, it was imperative for government to coordinate and organize all hospitals under the umbrella of one unified system, and efficiently use all the resources available in the State to attempt to meet the significant demands of the crisis. This approach was operationalized in late March when Governor Andrew M. Cuomo directed the New York State Department of Health (NYSDOH) to create a new and innovative Surge and Flex system, designed to create for the first time one singular coordinated statewide public healthcare system to prevent the virus from overwhelming any one hospital in the State. The approach was literally a life-saver—it helped New York at our peak of hospitalizations in April to facilitate the transfer of thousands of patients. The purpose of this NYSDOH regulation is to institutionalize the Surge and Flex operation to both allow the State to quickly activate Surge and Flex in the event of a resurgence of coronavirus, while also giving hospitals the time and guidance to adequately prepare for a potential future activation of Surge and Flex. The Surge and Flex system operation launched in March 2020 included four key elements which this regulation will institutionalize, in this subdivision.