DOH has signaled its intent to make permanent several emergency rules adopted during the state’s COVID-19 disaster emergency declaration. The COVID-19 emergency rules to become permanent include Surge and Flex, and PPE stockpile requirements.

The Surge and Flex emergency regulation took effect August 6, 2020 and expired at the end of the COVID-19 disaster emergency on June 23, 2021. Similarly, the hospital and nursing home PPE emergency regulations, which took effect in July 2020, expired on June 23.

On June 24, DOH filed the following emergency regulations which remain unchanged and in effect until August 8.
• Surge and Flex Health Coordination System
• Hospital Personal Protective Equipment (PPE) Requirements
• Nursing Home Personal Protective Equipment (PPE) Requirements

Notices were published Wednesday in the State Register that DOH intends to adopt these emergency rules as permanent rules upon publication at a future date. IHA interprets this to mean that the emergency regulations will be made permanent without change.

The Public Health and Health Planning Council (PHHPC) Committee on Codes, Regulations and Legislation met June 3 to discuss permanent adoption of these regulations. There was considerable discussion, during public comment and by committee members, that these regulations, in their current form, should not be made permanent.

IHA’s position is that these rigid emergency directives should not be codified. IHA will discuss the substance and process of this issue further with DOH, and urge revisions that include removal of arbitrary and restrictive benchmarks.

The Surge & Flex regulation requires that hospitals maintain a surge and flex plan and be able to surge 50%-100%, gives added authority to the Commissioner, and creates a statewide surge and flex coordinating system. See a summary here. The PPE regulations require hospitals and nursing homes to maintain a 90-day supply based on their April 13-27, 2020 usage rate. Penalty for violation may result in license revocation/suspension.

Also published were notices that the emergency rules on