Nearly one month after the Centers for Medicare and Medicaid Services (“CMS”) issued guidance recommending that health care providers delay elective surgeries and medical procedures, CMS, on April 19, 2020, issued the first in a series of recommendations on how states and regions with stabilized COVID-19 outbreaks that meet certain criteria can begin reinstituting elective surgeries and medical procedures.
Recognizing that “many areas have a low, or relatively low and stable incidence of COVID-19 and that it is important to be flexible and allow facilities to provide care for patients needing non-emergent, non-COVID-19 healthcare,” CMS advises that “it is important to restart care that is currently being postponed, such as certain procedural care (surgeries and procedures), chronic disease care, and, ultimately, preventive care” in states and localities with low COVID-19 rates. The CMS guidance relies on state’s passing the “gating criteria” of Phase 1 established by the White House Administration’s Opening Up America Again guidelines announced on April 16, 2020, a three-phased approach that requires states to have: (1) downward trajectories of flu and COVID-19-like symptoms within a 14-day period; (2) downward trajectories of documented cases of COVID-19 or positive tests as a percent of total tests when testing volumes are flat or increasing within a 14-day period; and (3) hospitals treating all patients without crisis care and robust testing in place for at-risk healthcare workers, including emerging antibody testing.
CMS continues to “strongly” encourage the maximum use of all telehealth modalities in providing non-essential health care services. For care that cannot be accomplished virtually, CMS recommends that non-essential health care 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.” CMS further recommends that decisions on providing elective surgeries and procedures be “consistent with public health information and in collaboration with state public health authorities.”
CMS recommends that health care systems and providers implement certain guidelines and protocols before providing elective, non-essential surgeries and medical procedures, including:
- Work in coordination with state and local public health officials to evaluate the incidence and trends for COVID-19 in the area where re-starting in-person care is being considered.
- Evaluate the necessity of the care based on clinical needs. Providers should prioritize surgical/procedural care and high-complexity chronic disease management. CMS notes, however, that select preventive services may also be necessary.
- Enact procedures for separation and screening of patients and staff, including procedures that require staff who will work with non-COVID-19 patients to be screened off from COVID-19 patients (e.g., designating separate buildings, rooms, or floors with a separate entrance and minimal crossover with COVID-19 areas).
- Ensure sufficient resources are available, including personal protective equipment (“PPE”), healthy workforce, facilities, supplies, testing capacity, and post-acute care, without jeopardizing surge capacity.
- Continue restricting visitors to one (1) caregiver per patient.
- Enforce strict sanitation policies in COVID-19 and non-Corvid-19 treatment areas.
Since the White House Administration’s pronouncement of the Opening Up America Again Guidelines and the updated guidance issued by CMS, some states have issued orders and instructive guidance to allow elective and non-emergent surgeries and medical procedures.
Below is a brief overview of the current state of elective surgeries and procedures in Mississippi.
On April 24, 2020, Mississippi Governor Tate Reeves issued Executive Order 1477, which, among other things, permits health care providers to resume providing “non-emergent, elective medical procedures and surgeries” when certain conditions are met, including: (1) an effort to deliver care through non-physical means, such as telehealth, phone consultations and physical barriers; (2) the surgery or procedure falls within Tier 2 or Tier 3 of the April 7, 2020 recommendations issued by CMS (elective procedures and surgeries that fall within Tier 1 of the CMS guidelines must be delayed); (3) pre-procedure and pre-surgery COVID-19 screening and, to the extent possible, pre-procedure and pre-surgery COVID-19 testing; (4) minimal use of PPE (providers may not request PPE from any public source (federal, state, or local) for elective procedures and surgeries); (5) ensure social distancing guidelines are met; and (6) no visitors permitted, except for one (1) spouse or caregiver who resides with the patient. The Governor’s Order does not “limit or alter the authority of any local or county authority from adopting orders, rules, regulations, resolutions, and actions that are more strict” than the Order. Order 1477 continues through May 11, 2020.
Following the Governor’s Order, the Mississippi State Department of Health (“MSDH”), on April 24, 2020, issued a State Health Officer’s Order (“MSDH Order”) instructing that health care providers may resume outpatient medical services and elective surgeries and procedures through May 18, 2020, provided certain requirements are met. See the MDHS Order here.
Below is a non-exhaustive list of MSDH requirements for resuming elective surgeries and procedures:
Outpatient Medical Services
- Telehealth is used, when possible and appropriate, for medical assessment and treatment.
- In-person clinic visits are limited to encounters when telehealth is not possible and:
- COVID-19 screening is performed for all patients prior to each visit; and
- All patients with suspected COVID-19 are assessed in a private room, with appropriate PPE available.
- Outpatient services are conducted in accordance with social distancing guidelines, including:
- Less than ten (10) persons per room;
- Minimum of six (6) feet distance between patients;
- A maximum of one (1) caregiver, if necessary.
- Non-urgent (Tier 1) visits should be delayed or occur via telehealth.
Elective Surgeries and Procedures
- Only Tier 2 or Tier 3 elective surgeries and medical procedures may be performed (all Tier 1a and 1b elective surgeries or procedures must be postponed). See CMS Non-Emergent, Elective Medical Services and Treatment Recommendations (April 7, 2020).
- All patients must be assessed for COVID-19 prior to the elective surgery or medical procedure.
- Providers must: (1) have adequate inventories of PPE, supplies, equipment and medicine prior to performing the elective surgery or medical procedure; (2) a plan for conserving PPE, supplies, equipment and medicine; and (3) ensure PPE is preserved by minimizing the number of personnel in the operating or procedure room.
- If PPE, supplies, equipment, or medicine are limited or unavailable then the surgery or medical procedure should be canceled.
- All services must be provided in a manner consistent with social distancing guidelines (i.e., less than ten (10) persons to a room, six (6) feet minimum distance between patients, all patients and caregivers must wear a mask at all times in all clinical areas).
- Particular effort should be made to avoid elective surgeries or medical procedures of patients who (1) will require extensive surgery/open surgery; (2) will be expected to require intensive care unit stays; or (3) have multiple comorbidities and higher risk of post-operative complications.
The decision to reinstitute non-essential, elective surgeries and medical procedures must be made based on a clinical determination after careful consideration of the risks and benefits to a patient on a case-by-case basis. In determining whether to proceed with a non-essential, elective surgery or medical procedure, providers must also consider any executive orders issued by their respective state or local government as well as any other directives issued by federal and state agencies and public health officials.
We will continue to monitor state and federal updates on elective surgeries and procedures.
To read the full text of the updated CMS guidelines on elective surgeries and procedures, click here. Click here for the full text of the Opening Up America Again Guidelines. For the full text of Mississippi Executive Order 1477 click here.