On April 19, 2020, CMS issued recommendations for reopening health care facilities for non-emergent, non-COVID-19 care in certain communities. This guidance is intended to operate in coordination with the Trump administration’s Guidelines for Opening Up America Again as states, regions and counties implement plans to resume activities that have been suspended during the current public health emergency. Health care facilities and providers should evaluate these CMS recommendations and may consider guidelines from other health care organizations as well. Importantly, the federal guidelines and CMS recommendations expressly defer to state and local authorities. Health care facilities and providers, therefore, should work with their own state and local officials to move forward in recommencing non-emergent, non-COVID-19 services.
Generally, the federal Guidelines for Opening Up America Again propose that regions, states and localities resume health care and other activities in phases as each area meets certain targets referred to by the guidelines as “Gating Criteria.” Under the Gating Criteria, the locality should be able to demonstrate:
- A downward trajectory in influenza-like illnesses and COVID-19-like cases reported during a 14-day period;
- A downward trajectory of documented COVID-19 cases during a 14-day period or a downward trajectory of positive tests as a percentage of total tests in the same period; and
- A capacity for area hospitals to treat patients without crisis care along with the capacity for robust testing of at-risk health care workers.
Once the Gating Criteria are met, CMS’s recommendations state that health care providers may begin resuming the provision of non-emergent, non-COVID-19 care. As providers resume these services, they should:
- Work with state and local public health officials to coordinate and evaluate resumption of in-person care based on the incidence and trends for COVID-19;
- Monitor the incidence of COVID-19 in the community or region and be prepared to cease non-essential procedures and services in the event of a surge;
- Maximize continued use of telehealth; however, where certain services cannot be provided virtually, providers can begin to consider resuming in-person care;
- Prioritize surgical/procedural care, high complexity chronic disease management, and in-person delivery of select preventive services (e.g., screening mammography);
- Consider establishing separate zones (e.g., separate building or designated room or floor with a separate entrance and minimal crossover into COVID-19 treatment areas) for the delivery of non-COVID-19-related services to the extent possible. All staff working in non-COVID-19 zones and patients coming to non-COVID-19 zones should be routinely screened for potential symptoms of COVID-19, and staff working in non-COVID-19 zones should not be rotated between non-COVID-19 zones and COVID-19 care zones;
- Establish facility and administrative engineering processes to facilitate social distancing (e.g., separating chairs by 6 feet, minimizing wait times and maintaining low patient volumes);
- Ensure that staff continue to wear surgical face masks at all times and ensure that patients wear surgical masks or cloth face coverings;
- Continue conservation of personal protective equipment (“PPE”);
- Ensure the ability to screen staff routinely for symptoms of COVID-19 and test/quarantine if symptoms emerge;
- Establish plans for cleaning, disinfection, and decontamination of space and equipment used by patients with non-COVID-19 needs;
- Formulate plans to pre-screen non-COVID-19 patients through laboratory testing once adequate testing capability is established;
- Ensure that staff are laboratory tested for COVID-19 regularly once adequate testing capability is established; and
- Ensure availability of sufficient resources for non-emergent care without jeopardizing surge capacity.
Practical Takeaways
While the CMS guidelines are informative and instructive, the recommendations stress the need for a flexible response focused at the state and local level. CMS acknowledges that its recommendations are not intended to be implemented by every state, county or city at this time; instead, each locality must assess its ability to perform crucial activities such as testing, contact tracing, ensuring health care system capacity and monitoring to identify and address future outbreaks. Likely, governors and public health officials within cities and counties will be in a better position to tailor responses based on the incidence of COVID-19, availability of resources such as manpower and PPE and other factors.
Providers should also consider guidance developed by other relevant organizations. For example, a joint statement recently issued by the American College of Surgeons, the American Society of Anesthesiologists, the Association of Peri-Operative Registered Nurses and the American Hospital Association provides a roadmap for resuming elective surgeries and services. Recently released guidance may be found here and here. Health care providers, entities and other stakeholders should be cognizant of such guidance, as well as the CMS recommendations, as they engage with their local authorities to prepare and coordinate responses.
If you have questions or would like additional information about this topic, please contact:
- Jennifer Skeels at (317) 977-1497 or jskeels@hallrender.com;
- Katherine Kuchan at (414) 721-0479 or kkuchan@hallrender.com;
- Maureen O’Brien Griffin at (317) 977-1429 or mgriffin@hallrender.com;
- Adele Merenstein at (317) 752-4427 or amerenstein@hallrender.com;
- Kristen Chang at (414) 721-0923 or kchang@hallrender.com; or
- Your regular Hall Render attorney.
Hall Render’s attorneys and professionals continue to maintain the most up-to-date information and resources, which are available at our COVID-19 Resource page, through our 24/7 COVID‑19 Hotline at (317) 429-3900 or by contacting your regular Hall Render attorney.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer specific questions that would be legal advice.
