Following the advice that United States Surgeon General Jerome Adams tweeted on March 14, 2020, CMS published guidance on March 19, 2020, that urged providers to conserve resources by limiting elective surgeries as well as nonessential medical, surgical, and dental procedures during the 2019 novel coronavirus (COVID-19) outbreak.
In its guidance, CMS issued a number of recommendations to assist providers with their decisions on how best to serve their patients whose conditions require emergent or urgent attention to save a life, preserve organ function, or otherwise avoid further harm. Providers were cautioned that they must also consider conservation of certain resources, including personal protective equipment (PPE), intensive care beds, and ventilators, in addition to the clinical evaluation of the patient in determining whether to conduct a procedure.
CMS has offered the following framework of factors to consider in addition to clinically evaluating patients:
- Current and projected COVID-19 cases in the area
- Current and projected supply of PPE available
- Staff availability
- Hospital bed (particularly intensive care bed) availability
- Ventilator availability
- Patient health and age, especially considering the risk of becoming infected with COVID-19 during recovery
- Urgency of the procedure
In connection with this framework, CMS has also proposed a tiered approach to analyzing procedures based on the acuity of the patient and their health status. CMS also recommended that nonessential dental procedures be postponed until further notice, because they have some of the highest risks for disease transmission and utilize personal protective equipment. According to CMS guidance, elective, outpatient surgery for healthy patients, such as carpal tunnel release or colonoscopy procedures would be among the procedures that are recommended for postponement. In contrast, neurosurgical or trauma procedures for high acuity patients would be the type of procedures recommended to continue. While CMS provided some guidance for how to think about different procedures, it did leave room for physicians’ clinical judgment on a case-by-case basis.
The industry has seen rippling effects surrounding a slowdown of surgical procedures. A number of large health systems in urban areas across the country, such as New York-Presbyterian in New York City and Brigham & Women’s Hospital in Boston, have announced that they are suspending or canceling nonurgent, elective procedures. Surgical groups are also taking steps to limit exposure of their physicians and conserve the availability of personal protective equipment by restricting the number of personnel in operating rooms, reducing physician schedules to limit procedures and contact with patients, and moving to more on-call scheduling. Similarly, device manufacturers have seen the effects of lessened demand due to a slow-down of elective procedures internationally, which is now being seen in the United States. For example, nonurgent spine and orthopedic implants, including hip and knee replacements and elective spine surgeries in healthy patients were among the types of procedures CMS recommended that providers consider postponing in its framework.
Our Reed Smith Coronavirus team includes multidisciplinary lawyers from Asia, EME and the United States who stand ready to advise you on the issues above or others you many face related to COVID-19.
For more information on the legal and business implications of COVID-19, visit the Reed Smith Coronavirus (COVID-19) Resource Center or contact us at COVID-19@reedsmith.com.
Client Alert 2020-126
