Opening Up America Again Guidelines signal relaxation in elective surgery restrictions

On April 16, 2020, President Trump unveiled the Opening Up America Again Guidelines (Guidelines)^[1]. For the country’s healthcare providers that have been required to scale back or cease healthcare operations due to prohibitions on elective procedures stemming from the coronavirus disease 2019 (COVID-19) pandemic, the Guidelines signal the potential that these prohibitions may soon be lifted altogether. In this regard, the Guidelines establish a phased approach with COVID-19 related considerations and conditions that apply to individuals and employers that include specific healthcare industry recommendations. As healthcare providers evaluate how the Guidelines pertain to their respective practices they should be mindful of related factors such as the current state and county restrictions applicable to their practices and patient care, the Guidelines’ implementation requirements, and the Guidelines’ precautions applicable to their patients that are deemed to be vulnerable or high risk from a COVID-19 standpoint.

Implementable at discretion of state governors

The Guidelines provide that the proposed phased approach is implementable on a statewide or county-by-county basis at the respective state Governor’s discretion. The Guidelines highlight that state and local officials may need to tailor the application of the Guideline criteria to local circumstances (e.g., metropolitan areas that have suffered severe COVID-19 outbreaks, rural and suburban areas where outbreaks have not occurred or have been mild).

Local restrictions on elective surgeries and other procedures

States may have previously postponed or completely canceled elective surgeries and other procedures; however, states may issue orders to roll back such restrictions in light of these Guidelines. At all times, healthcare providers should continue to look to the laws and directives of their respective states and counties to ensure compliance with COVID-19 restrictions on elective surgeries and other medical, dental, and chiropractic procedures, as applicable. Healthcare providers should also be mindful of any potential impact to their state licensure that their respective state licensing board may have imposed in connection with any violations of such local restrictions. Healthcare providers are encouraged to consult with their legal counsel if they are unsure of the restrictions that apply to their practice and whether such restrictions have been lifted or modified as a result of the implementation of the Guidelines in their state.

Vulnerable individuals

Additional precautions are also reflected in the Guidelines for individuals that are vulnerable or considered high risk. As healthcare providers and caregivers evaluate the application of the Guidelines to their respective practices and patient care, precautions for vulnerable individuals should continue to be utilized. The Guidelines define vulnerable individuals as including: (i) elderly individuals, and (ii) individuals with serious underlying health conditions, including high blood pressure, chronic lung disease, diabetes, obesity, asthma, and those with compromised immune systems due to, e.g., chemotherapy for cancer, HIV/AIDS, and other conditions requiring the administration of immunosuppressant drugs. 

Healthcare specific roadmap

The Guidelines include recommendations for individuals and employers with certain criteria that apply specifically to the healthcare sector. Healthcare providers should consider the following healthcare-specific factors as applicable to their respective practices and interaction with patients when evaluating the Guidelines:

1. Elective surgeries: During Phase One, elective surgeries may resume as clinically appropriate on an outpatient basis at facilities that adhere to the guidelines promulgated by the Centers for Medicare and Medicaid Services (CMS). Elective surgical procedures provided on an inpatient basis remain prohibited during Phase One; however, during Phase Two elective surgical procedures maybe performed on an outpatient and in-patient basis at facilities that adhere to CMS guidelines.
2. Hospitals: During Phases One and Two, visits (by family and friends) remain prohibited, but may resume at Phase Three. In all phases, those who interact with patients must adhere to strict safety and hygiene protocols.
3. Senior living facilities: Similar to hospitals, visits at senior living facilities remain prohibited during Phases One and Two, but may resume at Phase Three. Further, in all phases, those who interact with residents must comply with stringent safety and hygiene protocols, bearing in mind that residents comprise a vulnerable and high risk population to COVID-19 and precautions to protect them from this risk should be implemented across the board.
4. Physicians, dentists, chiropractors, and diagnostic service providers: The Guidelines are silent regarding elective procedures in the offices of physicians, dentists, chiropractors, and diagnostic service providers. Until specific recommendations or requirements for such procedures in these settings are made available, consideration should be given to generalized Guideline recommendations applicable to all individuals and employers, the healthcare-specific guidance of adhering to strict protocols regarding safety and hygiene when interacting with patients, and the continued use of telehealth technologies. 
5. Reception and other public areas: For those healthcare providers that maintain common areas such as receptions, waiting rooms, billing, and testing areas, consideration should be given to these same generalized precautions in the Guidelines for individuals and employers. During Phase One, all individuals are directed to maximize physical distance from others and to avoid socializing in groups of more than 10 people in circumstances that do not readily allow for appropriate physical distancing (e.g., receptions). The Guidelines increase the socializing threshold to 50 people during Phase Two, and with Phase Three, low-risk populations are encouraged to minimize time spent in crowded environments. During all phases, the Guidelines emphasize special accommodations for members of vulnerable populations, albeit relaxed with Phase Three where such vulnerable individuals can resume public interactions, but are encouraged to practice physical distancing unless precautionary measures are observed.

Other Guideline criteria and considerations

The states may proceed to the phased openings at the discretion of their respective governors as referenced above once the following criteria are satisfied:

1. SYMPTOMS – Downward trajectory of influenza-like illnesses (ILI) reported within a 14-day period AND downward trajectory of COVID-like syndromic cases reported within a 14 day period;
2. CASES – Downward trajectory of documented cases within a 14-day period OR downward trajectory of positive tests as a percentage of total tests within a 14-day period (i.e., flat or increasing volume of tests); and
3. HOSPITALS – Ability to treat all patients without crisis care AND presence of a robust testing program for at-risk healthcare workers, including emerging antibody testing.

Employer guidelines

As alluded to above, the Guidelines also include employer-specific guidance that healthcare providers acting in the capacity as an employer to their clinical and non-clinical staff should be prepared to implement, as follows:

All phases

1. Develop and implement appropriate policies, in accordance with federal, state, and local regulations and guidance, and informed by industry best practices, regarding:
• Social distancing and protective equipment;
• Temperature checks;
• Testing, isolating, and contact tracing;
• Sanitation;
• Use and disinfection of common and high-traffic areas; and
• Business travel.
2. Monitor workforce for indicative symptoms and preclude symptomatic people from physically returning to work until cleared by a medical provider.
3. Develop and implement policies and procedures for workforce contact tracing following an employee’s positive test for COVID-19.

Phases One and Two

1. Continue to encourage telework whenever possible and feasible with business operations. Additionally, during Phase One, returning to work in phases is recommended if possible.
2. Close common areas where personnel are likely to congregate and interact, or enforce moderate social distancing protocols.
3. Minimize non-essential travel during Phase One, which may resume during Phase Two.
4. Strongly consider special accommodations for personnel who are members of a vulnerable population.

Phase Three

1. Resume unrestricted staffing of worksites.

DLA Piper continues to closely monitor additional guidance and developments impacting the healthcare industry as this situation unfolds. For information on other ways the COVID-19 pandemic is changing the healthcare industry and how your company can help serve patients, please contact your DLA Piper relationship partner or any member of our healthcare industry group.

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This information does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only. No reader should act, or refrain from acting, with respect to any particular legal matter on the basis of this information without first seeking legal advice from counsel in the relevant jurisdiction.