Since the beginning of the national COVID emergency, elective surgeries and procedures have been put on hold across the nation. This step was taken in part to minimize the spread of the virus and to help ameliorate the shortage of Personal Protective Equipment (PPE) available to health care providers. While the measure appears to have been effective in achieving each of these results, it also has resulted in layoffs and significant losses to hospitals, physicians, and Ambulatory Surgery Centers. With the peak of the COVID-19 threat having seemingly passed, CMS has released the first in a series of guidance for providers to utilize in beginning to provide services for elective procedures.

Phase I Implementation

Under the recommendations, if states or regions have passed the Gating Criteria in the Guidelines for Opening Up America Again announced by the President on April 16, 2020, they may proceed to Phase I. However, maximum usage of all telehealth is still strongly encouraged when possible.

In Phase I, necessary care for patients with nonCOVID-19 needs may be resumed in coordination with State and local public health officials. Providers are encouraged to prioritize surgical/procedural care and high-complexity chronic disease management. Further, it is recommended, once elective treatment resumes that, providers and facilities continually evaluate to ensure their region remains at a low risk of incidence. If there is a surge of COVID-19 incidence in their region, or if supplies or staff shortages develop, providers should be prepared to cease non-essential procedures

Decontamination

Before opening any facility to provide treatment for patients with non-COVID needs, providers must ensure that there is an established plan for thorough cleaning and disinfection. Equipment such as anesthesia machines that may have been used for COVID-19 must especially be thoroughly decontaminated, following CDC guidelines.

Separate Non-Covid Care Zones Are Recommended

Providers are encouraged to consider establishing Non-COVID Care zones. Providers should screen all patients for symptoms of COVID-19 prior to entry into the Non-COVID Care zones and perform routine screening of those who work in the facility. Further, once adequate supplies of tests become available, providers should screen all patients by laboratory testing before providing care. Likewise, staff should be regularly screened using laboratory tests.

To “the extent possible,” these Non-Covid Care areas should be separate from other facilities to minimize crossover with the COVID-19 areas. The guidance recommends separate buildings and/or separate entrances between these areas. Also, the staff who will be working in these Non-Covid Care zones should work only in those areas and not be allowed to rotate into “COVID-19 Care zones.” CMS specifically cited as an example that staff should not make rounds in a hospital and, then be allowed to work in a Non-COVID Care zone.

Supplies and Staff

Sufficient supplies of medication, equipment, and supplies must be available, without jeopardizing the ability to respond to any potential surge of COVID-19. Moreover, facilities cannot resume elective procedures unless sufficient PPE and staff are available to allow operations under the guidelines provided. Specifically, CMS recommends that healthcare providers and staff wear surgical facemasks at all times. Further, N95 masks and face shields should be worn for all procedures on the mucous membranes or respiratory tract. Patients should also be encouraged to wear a surgical mask if they have one available. However, if the patient cannot provide their own surgical mask, they should wear a cloth covering over their face to minimize exposure.

With this guidance from CMS, for those in regions that have experienced diminishing COVID-19 incidents sufficient allow Phase I implementation, providers may once again provide elective procedures and treatment. The keys to ensuring successful resumption are proper decontamination, separation from COVID-19 treatment areas to the maximum extent possible, and ensuring sufficient staff and supplies are available, without jeopardizing availability in the event of a surge. As is always the case, sound clinical judgment and practices are the essential components to adapting healthcare to the new normal, whatever that may prove to be.

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About the Author: Dennis G. Sadler is a Member with Leitner, Williams, Dooley & Napolitan, PLLC. Mr. Sadler represents individuals, businesses, employers, and insurers, concentrating in the areas of healthcare, construction law, products liability, premises and auto liability, workers' compensation and real estate. Mr. Sadler also advises medical practitioners in matters related to compliance with HIPAA, Stark, Anti-Kickback, and the myriad of regulations related to healthcare law. He has litigated matters in both the state and federal courts of Tennessee and Arkansas.

This is intended for general informational purposes only and is not meant to replace legal counsel. We urge you to consult an attorney for any issue regarding applicability or interpretation of any provision contained herein. This is not intended to be a complete summary of the law.