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Insight Center: Publications

CMS Recommendations for Reopening Health Care Facilities for Non-Emergent Non-COVID-19 Care

Client Alert

Authors: James A. Saling, Kimberly Hughes Gillespie and Erica S. Youngerman

CMS Recommendations for Reopening Health Care Facilities for Non-Emergent Non-COVID-19 Care

On April 19, the Centers for Medicare & Medicaid Services (CMS) issued recommendations to health care facilities for the first phase of reopening facilities to provide non-emergent non-COVID-19 health care. On March 18, CMS issued previous recommendations for limiting non-essential care and expanding surge capacity in light of the pandemic. These recommendations were put in place, in part, to conserve resources and to increase capacity to care for COVID-19 patients.

Phase 1 is only the first in three phases outlined in the Guidelines for Opening Up America Again. Before proceeding to Phase 1 of reopening, the guidelines proposed gating criteria, which may be tailored by state and local officials. The gating criteria generally requires (1) a downward trajectory of influenza-like illnesses and COVID-like syndromic cases reported within a 14-day period; (2) a downward trajectory of documented cases or positive tests as a percent of total tests within a 14-day period; and (3) that hospitals treat all patients without crisis care and have a robust testing program in place for at-risk health care workers, including emerging antibody testing.

CMS offered some general guidance as part of the Phase 1 recommendations:

  1. Telehealth: Maximum use of all telehealth modalities is strongly encouraged.

  2. Capacity: Non-COVID-19 care should be offered to patients as clinically appropriate and within a state, locality or facility that has the resources to provide such care and the ability to quickly respond to a surge in COVID-19 cases, if necessary.

  3. Decision-Making Process: Decisions should be consistent with public health information and in collaboration with state public health authorities.

  4. Planning: Careful planning is required to resume in-person care of patients requiring non-COVID-19 care, and all aspects of care must be considered.

  5. Area-by-Area Assessment: In coordination with state and local public health officials, evaluate the incidence and trends for COVID-19 in the area where restarting in-person care is being considered.

  6. Necessity of Care: Evaluate the necessity of the care based on clinical needs. Providers should prioritize surgical/procedural care and high-complexity chronic disease management; however, select preventive services may also be highly necessary.

  7. Zones and Screenings: Consider establishing Non-COVID Care zones that would screen all patients for symptoms of COVID-19, including temperature checks. Staff would be routinely screened as would others who will work in the facility (physicians, nurses, housekeeping, delivery and all people who would enter the area).

  8. Resources: Sufficient resources should be available to the facility across phases of care, including personal protective equipment, healthy workforce, facilities, supplies, testing capacity and post-acute care, without jeopardizing surge capacity.

Additional recommendations from CMS for providing clinically necessary care for patients with non-COVID-19 needs can be viewed here.

CMS emphasizes that “facilities should continually evaluate whether their region remains a low risk of incidence and should be prepared to cease non-essential procedures if there is a surge.” CMS also indicated that additional recommendations would be forthcoming.

Separate and apart from these CMS recommendations, providers must adhere to all federal, state and local requirements (assuming these requirements have not been specifically waived, such as Stark Law waivers, as described in this article).

The material in this publication was created as of the date set forth above and is based on laws, court decisions, administrative rulings and congressional materials that existed at that time, and should not be construed as legal advice or legal opinions on specific facts. The information in this publication is not intended to create, and the transmission and receipt of it does not constitute, a lawyer-client relationship.

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