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April 24, 2020

CMS Releases Guidance for Resuming Non-Emergent Procedures

On April 19, 2020, the Centers for Medicare and Medicaid Services (CMS) released recommendations for resuming non-emergent, non-COVID-19 health care services in regions with low and stable incidence of COVID-19 (the "Recommendations"). CMS’ new Recommendations ease prior guidance issued by CMS on March 18, 2020, that limited non-essential adult elective surgery and medical and surgical procedures in an effort to decrease the spread of COVID-19 and increase the availability of hospital beds, personnel and other necessary resources for COVID-19 related care.

As a result of postponed or canceled procedures, health care facilities have seen a dramatic decrease in revenue and patient volumes. Also, patients have not received necessary non-COVID-19 services, such as colonoscopies, mammograms, non-emergency surgeries and procedures, and other treatments. As states and localities see COVID-19 cases stabilize or decrease and facilities maintain sufficient personal protective equipment (PPE), CMS believes that it is important to resume care that is currently restricted. A number of professional associations, including the American Hospital Association, have also stressed the importance of resuming non-emergent care and have issued road maps to safely resume such services.

CMS’ guidance relates to the first phase of the White House’s Opening Up America Again Guidelines and applies to states or regions that have passed the Gating Criteria under the Guidelines, including showing that within a 14-day period, there has been a downward trajectory of both documented COVID-19 cases and reported influenza-like illnesses and COVID-like syndromic cases. If states or regions meet the Gating Criteria, CMS’ Recommendations state that they may proceed to Phase One of the Guidelines, during which hospitals and other facilities may resume care postponed under prior guidance.

CMS’ new Recommendations aim to provide a balanced approach to safely resuming non-essential care while continuing to slow the spread of COVID-19 and maintaining sufficient resources in the event of a COVID-19 surge. The following summary outlines CMS’ Recommendations and other considerations for providers that are determining how and when to resume non-emergent care.

Prior to Resuming Services

The Recommendations set forth a number of factors that hospitals and other providers should consider before proceeding with in-person non-emergent procedures. CMS urges facilities to (i) evaluate the incidence and trends for COVID-19 in their area in coordination with state and local public health officials, (ii) evaluate the necessity of care based on clinical needs and prioritize surgical and procedural care and high-complexity chronic disease management and necessary preventative care, (iii) ensure sufficient resources are available to the facility across all phases of care, and (iv) establish Non-COVID Care (NCC) zones to reduce the risk of COVID-19 exposure and transmission.

Considerations When Services Are Resumed

 The Recommendations set forth specific factors to consider for providers that decide to resume in-person non-emergent care.

  • Separate COVID-19 Areas. CMS recommends that facilities create NCC zones which have in place steps to reduce the risk of COVID-19 exposure and transmission. These NCC areas should be located in a different building, floor or designated room with a separate entrance, to the extent possible. Visitors should continue to be restricted, but CMS notes they may be allowed if necessary for an aspect of patient care and if they are pre-screened in the same way as patients.
  • Screening of Patients and Staff. CMS recommends that all patients and staff (physicians, nurses, housekeeping, delivery and all people who would enter the area) be screened for potential symptoms of COVID-19 prior to entering a NCC zone. As testing capacity increases, CMS recommends that screening protocols include laboratory testing for patients prior to care and routinely for facility staff. Providers and medical staff who are working in NCC zones should be limited to those areas and should not rotate elsewhere.
  • Personal Protective Equipment. Consistent with Centers for Disease Control and Prevention (CDC) recommendations, CMS notes that every effort should be made to conserve PPE, and health care providers and staff should wear surgical face masks at all times, along with other protective equipment, such as N95 masks and face shields, for procedures on the mucous membranes, including the respiratory tract, with a higher risk of aerosol transmission. CMS recommends establishing protocols for sanitizing the facility and equipment following CDC guidelines. Patients should also wear a face mask before entering the facility, and social distancing measures should be put in place within the facility, including waiting areas.
  • Preparation for a Potential Surge of COVID-19 Cases. The Recommendations state that facilities must recognize the need to be able to rapidly expand care for COVID-19 patients and ensure that all staffing levels, PPE supplies, equipment and medications are adequate to cover a potential surge in COVID-19 cases.

State and Local Restrictions

While CMS’ Recommendations offer a road map for providers to consider, the decision to resume non-emergent, non-COVID-19 services will depend on state and local orders — and ultimately the provider’s judgment. A majority of states have issued executive orders to postpone or cancel non-essential surgeries and other procedures during the COVID-19 pandemic. Providers in states with executive orders banning non-emergent care must continue to follow such mandates. Following the release of the CMS’ Recommendations, several states, including Texas, Oklahoma and Alaska, have issued plans pursuant to which hospitals and other facilities may resume non-emergent procedures. For example, New York Governor Andrew Cuomo announced on April 21, 2020, that elective outpatient services may resume on April 28, 2020, in certain counties upon meeting certain conditions. Many other states are considering how and when non-emergent procedures may be safely resumed.

Practical Considerations

For hospitals and other providers currently prohibited from resuming non-emergent procedures by state executive orders or other actions, there are certain steps that they may take now in order to prepare for the resumption of services once these bans are lifted. Providers should ensure they have adequate bed capacity, staff, PPE and other equipment and supplies. Providers should also develop appropriate protocols for patient and staff screening, including testing as it becomes more widely available.

Although many facilities will have to wait to resume non-emergent procedures until the COVID-19 virus is further contained in their state or region and applicable bans are lifted, the new CMS Recommendations are an important development for patients, hospitals and other providers. Providers should continue to monitor applicable federal, state and local actions related to this issue.

The material contained in this communication is informational, general in nature and does not constitute legal advice. The material contained in this communication should not be relied upon or used without consulting a lawyer to consider your specific circumstances. This communication was published on the date specified and may not include any changes in the topics, laws, rules or regulations covered. Receipt of this communication does not establish an attorney-client relationship. In some jurisdictions, this communication may be considered attorney advertising.

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