On April 16, 2020, the White House issued Guidelines for Opening Up America Again (the “Guidelines”), a three-phased approach to gradually lift the lockdowns imposed by states and localities in response to the COVID-19 pandemic. These Guidelines are only recommendations and are not mandatory. Therefore, the final decisions on how and when to re-open will be left to the states and localities.

The Guidelines set forth state or regional “gating criteria” to satisfy before proceeding to Phase One. The criteria are as follows:

• Symptoms: downward trajectory of influenza-like illnesses reported within a 14-day period and downward trajectory of COVID-like syndromic cases reported within a 14-day period;
• Cases: downward trajectory of documented cases within a 14-day period or downward trajectory of positive tests as a percent of total tests within a 14-day period (flat or increasing volume of tests); 
• Hospitals: treat all patients without crisis care and robust testing program in place for at-risk healthcare workers, including emerging antibody testing.

The Guidelines indicate that state and local officials may need to tailor the application of these criteria to local circumstances (e.g., metropolitan areas that have suffered severe COVID outbreaks, rural and suburban areas where outbreaks have not occurred or have been mild). Additionally, where appropriate, Governors should work on a regional basis to satisfy these criteria.

The White House indicated that all employers are encouraged to adopt the following guidelines during all three (3) phases:

• Develop and implement appropriate policies, in accordance with Federal, State, and local regulations and guidance, and informed by industry best practices, regarding (i) social distancing and protective equipment; (ii) temperature check; (iii) sanitation; (iv) use and disinfection of common and high-traffic areas; (v) business travel.
• Monitor workforce for indicative symptoms; do not allow symptomatic people to physically return to work until cleared by a medical provider.
• Develop and implement policies and procedures for workforce contact tracing following employee COVID+ test.

If states or regions have passed the “gating criteria” (symptoms, cases, and hospitals), then they may proceed to Phase One.

During Phase One, employers shall continue to: encourage telework, whenever possible and feasible with business operations; if possible, return to work in phases; close common areas where personnel are likely to congregate and interact, or enforce strict social distancing protocols; minimize non-essential travel and adhere to CDC guidelines regarding isolation following travel; strongly consider special accommodations for personnel who are members of a vulnerable population.

With respect to the health care industry, the Guidelines propose that during Phase One: (i) visits to senior living facilities and hospitals should be prohibited and (ii) elective surgeries may resume, as clinically appropriate, on an outpatient basis at facilities that adhere to CMS guidelines.

CMS’ Recommendations

On April 19, 2020, in response to the White House’s Guidelines, CMS issued recommendations on re-opening facilities to provide non-emergent non-COVID-19 healthcare. Indeed, many parts of the country have a low, or relatively low and stable incidence of COVID-19, and it is important to allow flexibility to provide non-COVID-19 healthcare. “Today, some areas of the country are experiencing fewer cases and lower incidence of the virus, necessitating a more tailored and flexible approach. Every state and local official will need to assess the situation on the ground to determine the best course forward, but these guidelines provide a gradual process for restarting non-COVID-19 essential care while keeping patients safe,” said CMS Administrator Seema Verma.

The new recommendations are specifically targeted to communities that are in Phase One of the Guidelines. The recommendations update earlier guidance provided by CMS on limiting non-essential surgeries and medical procedures, available here.

While the use of telehealth modalities is strongly encouraged, CMS sets forth recommendations for healthcare systems and facilities to resume in-person care on non-COVID-19 patients for care that cannot be accomplished virtually, in regions with low incidence of COVID-19 disease. 

First, CMS provided general considerations for healthcare systems to determine when re-starting necessary care for patients with non-COVID-19 needs in collaboration with state public health authorities:

• Evaluate the incidence and trends for COVID-19 in the area where re-starting in-person care is being considered;
• Prioritize surgical/procedural care and high-complexity chronic disease management; however, select preventive services may also be highly necessary.
• Establish non-COVID-care (“NCC”) zones to screen patients for COVID-19;
• Ensure adequate facilities, workforce, testing, and supplies are available.

In addition, CMS issued specific recommendations which are explained below.

Personal Protective Equipment
Healthcare providers and staff should wear surgical facemasks at all times. N95 masks and face shields should be used for procedures on the mucous membranes. Patients should also wear protection, but it may be a cloth made at home.

Workforce
Staff should be screened for symptoms of COVID-19 and quarantined if necessary. Staff working in NCC zones should not rotate in COVID-19 care zones. Also, providers must maintain adequate staffing level in case of surge in COVID-19 cases.

Facility
NCC zones should be created to provide in-person, non-emergent care. These NCC zones should be separate from other facilities if possible (i.e., separate building or designated floors). Social distancing should be properly maintained in common areas and visitors should be prohibited unless necessary for care.

Sanitation Protocols
Cleaning and disinfection plan should be implemented prior to treating non-COVID-19 patients, including anesthesia machines used for COVID-19 patients.

Supplies
Equipment, supplies, and medication must be sufficient to respond to a potential surge.

Testing Capacity
All patients must be screened prior to entering an NCC zone. In addition, patients should be screened by laboratory testing before care, and staff working in these facilities should be regularly screened by laboratory test as well.

These guidelines are not aimed for healthcare facilities and providers that are still seeing a higher number of COVID-19 cases. In addition, CMS’ guidelines are only applicable to communities that have reached Phase One. Healthcare facilities and providers that are in areas still seeing a higher number of COVID-19 cases are encouraged to continue following the recommendations made by CMS last month which were issued to expand capacity to care for patients with COVID-19, to reduce the risks of transmission and exposure to patients, and to conserve adequate supplies, during the public health emergency.

This is the first in a series as CMS indicated that re-opening will be a “gradual transition.” Thus, providers should watch for additional updates and releases.