On April 19, 2020, the Centers for Medicare and Medicaid Services (CMS) published guidance (the “CMS Guidance”) for reopening facilities to provide elective procedures or “non-emergent, non-COVID-19 healthcare.” The CMS Guidance was issued in connection with the White House’s Guidelines for Opening Up America Again, which indicate that elective surgeries can resume once a state or region meets the gating criteria necessary to start Phase 1 of the White House guidelines.

The gating criteria for Phase 1 are (a) a downward trajectory of influenza-like illnesses and COVID-like syndromic cases reported within a 14-day period; (b) a downward trajectory of documented cases or positive tests as a percentage of total tests within a 14-day period (i.e.,flat or increasing volume of tests); and (c) hospitals in the region can treat all patients without crisis care and have robust testing programs in place for at-risk healthcare workers, including emerging antibody testing.

Although the CMS Guidance strongly encourages the maximum use of telehealth services, it provides recommendations for resuming in-person care of non-COVID-19 patients when care cannot be accomplished virtually. The CMS Guidance is applicable to facilities in regions with low incidence of COVID-19, and it specifically states 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.

The CMS Guidance contains a long list of considerations that aim to give healthcare facilities some flexibility in “providing essential non-COVID-19 care to patients without symptoms of COVID-19 in regions with low incidence of COVID-19.” Notably, the considerations state that patients and providers who enter facilities that provide elective procedures should be screened for COVID-19 by laboratory tests when adequate testing capacity is established. Additionally, one of the criteria that can be used to justify entering Phase 1 is a downward trajectory of positive tests as a percentage of total tests over a 14-day period. As a result, it may not be feasible to restart a significant amount of elective procedures until near-ubiquitous testing for COVID-19 is available.

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