This article was originally published March 26, 2020.
New information has been added for Arizona, Connecticut,
District of Columbia,
Florida, Georgia, Hawaii,
Idaho, Illinois, Kansas, Kentucky,
Maryland, Massachusetts, New Mexico,
New York, Oklahoma, Oregon,
South Carolina, Vermont, Virginia,
Washington, Wisconsin and Wyoming.
Across the U.S., state governors have issued numerous orders in their efforts to slow the spread of the novel coronavirus (COVID-19), with the most important falling into two categories: “stay-at-home” (or “shelter-in-place”) directives; and orders prohibiting elective procedures.
On April 19, CMS issued recommendations to reopen healthcare systems for the provision of elective procedures and treatment to non-COVID-19 patients. The updated guidance is part of Phase 1 of the Trump administration’s guidelines for reopening America, a three-phased approach to reopening businesses and travel.
The elective and non-emergent procedure guidance relies upon states or areas passing the gating criteria of Phase 1 of the administration’s guidelines for reopening America. This requires a downward trajectory of symptoms and cases within a 14-day period and that hospitals treat all cases without crisis care and have a robust testing program in place for at-risk healthcare workers, including emerging antibody testing. The guidelines also note that states should be ready to engage in robust testing and contact tracing and must continue to consider the overall capacity of the healthcare system, which includes consideration of the availability of personal protective equipment, critical medical equipment and the ability to handle potential surges in ICU needs. Only after governors or states public health officials have determined that a state or region has passed the three gating criteria of Phase 1 does the administration recommend that the state or region proceed to allow elective and non-emergent procedures to resume, as clinically appropriate, on an outpatient basis.
CMS continues to recommend the maximum use of telehealth when possible. CMS acknowledges, however, that in-person non-COVID-19 care may be appropriate in states or regions where there is a low incidence of COVID-19 and where the state, region or healthcare facility has the resources to provide such care while still maintaining the ability to respond to any surge in COVID-19 cases. CMS provides areas of consideration that states and healthcare providers should weigh when determining whether to proceed with elective or non-emergent care in states or regions that have met the Phase 1 gating criteria. These areas of consideration include the following:
- Work with state and local health officials to evaluate COVID-19 cases in the area where restarting care is being considered.
- Evaluate the clinical need for the care, giving priority to surgical treatments and high-complexity chronic disease management. CMS notes that certain preventative visits and treatments may also be deemed necessary.
- Enact procedures for separation and screening of patients and staff, including procedures for staff who will work with non-COVID-19 patients to be screened from COVID-19 patients. This would include dedicating specific areas, such as separate buildings or floors, for non-COVID-19 patients wherever possible.
- Ensure sufficient medical supplies and resources are available, including personal protective equipment.
- Maintain sufficient staffing levels to respond to any potential surge in COVID-19 cases.
- Continue to enforce prohibitions on visitation when possible and maintain social distancing guidelines.
- Enforce strict sanitation policies in both COVID-19 and non-COVID-19 treatment areas.
In conjunction with the Trump administration’s guidelines to reopen America and CMS’ recommendations to reopen the healthcare system, several state governors have announced plans to reopen businesses and allow elective and non-emergent medical and surgical procedures. States have indicated that businesses and the economy will reopen on a rolling basis and timeline.
As some state governors face litigation over stay-at-home orders, others increasingly pursue lifting their stay-at-home orders and orders prohibiting elective procedures. Most states are employing a phased-in approach, allowing specific types of businesses to reopen if they can meet specific guidelines that include such measures as limiting occupancy and maintaining social distancing and sanitation standards.
Further, more and more states are allowing prior prohibitions on elective procedures to expire and issuing updated orders and guidance on performing such procedures. These updated guidelines generally follow CMS’ recommendations to reopen healthcare systems, and include measures to assess the priority of surgeries and procedures, ensure adequate capacity of the healthcare system, and address potential shortages of PPE.
Individual State Orders. We have prepared a succinct state-by-state summary and color-coded map of individual directives and orders that impact healthcare providers and elective procedures. Please click below to expand to view any orders and directives that are applicable to your state. This information is recent as of 12 a.m. ET on May 4, 2020, and will be updated regularly.
A decision whether a procedure or surgery is elective or should be postponed or canceled under any state directive to do so is a clinical determination that each provider and facility must determine based on the risks and benefits of each case.
In determining whether to proceed with a procedure, providers must take care to heed any executive orders from their states, local governments, or other directives from agencies such as a Department of Health and should consult and consider the CDC and CMS guidelines.
As noted above, while no state nor CMS nor the CDC appears to have yet indicated any specific documentation that must be maintained (recognizing that in all matters related to COVID-19, the situation is fluid and ever-changing), we recommend that providers ensure they maintain proper documentation of the risk analysis performed in determining to forward with a procedure or surgery. McGuireWoods stands ready to assist and has developed and is continuing to develop forms for such purposes.
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Stay-at-Home. On March 19, 2020, Alabama State Health Officer Scott Harris issued an order directing the closure of many non-essential businesses as well as putting in place parameters for the continued operation of certain businesses. The order does not affect healthcare providers and facilities. On April 3, 2020, Harris issued an order requiring all Alabama residents to stay at their place of residence, apart from certain essential activities. The order is effective through at least April 30, 2020.
Stay-at-Home Update. On April 28, Gov. Kay Ivey announced a safer-at-home order that will be in effect from 5 p.m. on April 30 through May 15 and will replace the prior stay-at-home order that expires April 30. The safer-at-home order recommends that all individuals, and especially vulnerable people, minimize travel, wear face masks when leaving the home and practice disinfecting techniques. Those who have tested positive for COVID-19 will continue to be required to quarantine in their resident for 14 days. Non-work-related gatherings of 10 or more, or of any size that cannot maintain social distancing, are still prohibited. All employers, unless otherwise excepted, must take reasonable steps to protect their employees by following recommendations such as avoiding gatherings of 10 or more, maintaining social distancing, regularly disinfecting, and facilitating remote work. Retail stores may open, but must limit occupancy to 50 percent and follow social distancing and sanitation guidelines. A number of business types considered high-risk may not open, including entertainment venues, athletic facilities and service providers such as salons.
Stay-at-Home Update. On May 8, 2020, Gov. Kay Ivey issued an updated safer-at-home order, effective May 11 - 22, 2020, that allows more businesses to open and amends restrictions on businesses and individuals. The order rescinds the 10-person limit on gatherings as long as social distancing of six feet is maintained, allows in-person dining as long as social distancing of six feet between tables is maintained, allows the reopening of athletic facilities such as gyms as long as distancing is maintained, and continues to require enhanced sanitation procedures. Entertainment venues and schools will remain closed. Hospitals and nursing homes still must restrict visitation and non-essential healthcare personnel, with exceptions for compassionate care visitation.
Elective Procedures. The March 19 order also notes that as of the date of the order, all elective and dental medical procedures shall be delayed. The order does not provide any additional guidance on what constitutes an elective procedure. Therefore, we recommend providers continue to utilize the CMS guidelines.
Elective Procedures Update. As part of the state’s safer-at-home order, effective 5 p.m. on April 30, dental, medical and surgical procedures may proceed unless the state health officer determines that such procedures (either statewide or regionally) should not proceed based on the unacceptable reduction of medical equipment and supplies such as PPE. Providers are directed to follow any applicable rules promulgated by a state regulatory authority or the Department of Health. If no such rules are available, providers must take reasonable steps to comply with CDC and CMS guidelines to provide non-COVID-19-related care.
Stay-at-Home. Alaska Gov. Mike Dunleavy issued Health Mandate 12, effective March 28, 2020, which was updated on April 9 to extend the effective date through April 21, 2020. It prohibits all in-state travel between communities, whether resident, worker or visitor, unless the travel is necessary to support critical infrastructure or for critical personal needs. Critical personal needs include travel for receiving essential healthcare. Further, healthcare operations have already been deemed critical infrastructure allowing for travel and work and were previously defined to include hospitals, clinics, dental emergency services, pharmacies, other healthcare facilities, home healthcare services and providers, mental health providers, companies and institutions involved in the research and development, manufacture, distribution, warehousing, and supplying of pharmaceuticals, biotechnology therapies, consumer health products, medical devices, diagnostics, equipment, services, or any related and/or ancillary healthcare services. Healthcare operations also include veterinary care.
Stay-at-Home Update. Gov. Dunleavy issued Health Mandate 16, or the Reopen Alaska Responsibly Plan, on April 22. The order goes into effect April 24, and includes five attachments addressing specific types of businesses, such as non-essential public-facing businesses generally, retail businesses, restaurant dine-in services, personal care services and non-essential non-public-facing businesses. Each of these attachments acts as a modification of a prior health mandate and allows the category of businesses to resume operations if they meet all listed requirements. These requirements include measures to address social distancing (such as specific restrictions on the number of customers), hygiene protocols, staffing measures such as employee screening, and cleaning and disinfecting requirements.
Elective Procedures. While Gov. Dunleavy issued Health Mandates 006 and 007 on March 19, 2020, requiring the postponement of all elective dental procedures for a period of one month and the postponement or cancellation of all elective or non-urgent medical procedures for a period of three months. Regarding dental procedures, the mandate recommends the following actions:
- Prioritize treatment for patients experiencing dental emergencies, defined by the ADA as “Health care related to relief of severe dental/oral pain and infection management.”
- To help decrease the overburden on emergency rooms and urgent care facilities as the COVID-19 response rapidly increases, oral health practitioners are encouraged to provide emergency dental care through patients’ regular dental home, including after-hours where possible, except in the case of a life-threatening emergency.
- Limit orders and use of PPE to the minimum necessary for emergency care.
Regarding medical procedures, elective and non-urgent medical procedures include pre-scheduled surgeries that are deemed non-essential but does not apply to surgical cases coming through the emergency room or to existing hospitalized patients. Further, the mandate notes that the terms “non-urgent or elective” are not specifically defined and recommends that hospitals create a physician task force to be available to make determinations on a case-by-case basis.
Elective Procedures Update. Gov. Mike Dunleavy issued Health Mandate 15 on April 15, providing that procedures that require minimal protective equipment may resume on April 20 if providers continue to follow guidance regarding the provision of telehealth whenever possible, maintain physical barriers, require masks for all patients, screen all patients for COVID-19 symptoms, minimize aerosolizing procedures, and test all patients for COVID-19 if they have an emergent or urgent need for a procedure.
Providers may continue to provide urgent or emergent procedures but also must follow the enhanced screening and safety measures noted above. Therefore, surgeries are allowed to proceed if a delay would cause a significant impact to the health, livelihood or quality of life of a patient. All patients undergoing such procedures should be tested for COVID-19 within 48 hours of the procedure and the procedure delayed, if possible, for any positive results.
The health mandate also provides that non-emergent surgeries and procedures, defined as those that cannot be postponed beyond eight weeks without posing a significant risk to quality of life, may resume on May 4, if the following conditions have been met:
- Healthcare delivery can meet all of the standards outlined in the mandate.
- Healthcare is delivered by a provider listed in the statute.
- Healthcare can be safely done with a surgical mask, eye protection and gloves.
- If the procedure puts the healthcare worker at increased risk — such as deliveries, dental work or aerosolizing procedures such as suctioning, intubation or breathing treatments — then a negative test for COVID-19 must be obtained within 48 hours prior to the procedure.
- There may be no visitors in healthcare facilities except for end-of-life visits, a parent of a minor, and a support person for labor and delivery settings. Only one spouse or caregiver who resides with the patient will be allowed into the facility during the day of a surgery or procedure and at the time of patient discharge to allow for minimal additional exposure. If a caregiver does not reside with the patient, the caregiver can be with the patient at the time of discharge. Any of the allowed visitors must wear a fabric face covering.
- Workers must maintain social distancing of at least six feet from non-patients and must minimize contact with the patient.
- Exceptional environmental mitigation strategies must be maintained, including the protection of lobbies and front desk staff.
- Unlicensed assistive personnel necessary to procedures under this section may be included in service delivery.
Stay-at-Home. Gov. Doug Ducey issued Executive Order 2020-18, effective March 31 through April 30, 2020, ordering all individuals to limit their time away from their place of residence except for conducting essential activities, employment in essential functions, and to obtain services provided by an essential business. As with other states, the order to limit time away from home does not apply to seeking healthcare services or employment in healthcare.
Stay-at-Home Update. On April 29, Gov. Doug Ducey extended the state’s stay-at-home order through May 15, 2020, but with amendments that allow some businesses to resume operations with modifications. The order still directs all residents to limit their travel except for essential activities (including healthcare), but sets a staggered approach to how businesses previously classified as non-essential may resume operations. As of May 4, non-essential businesses that engage in the sale of goods may operate through delivery services, window services, walk-up services, drive-thru services, curbside delivery, and by appointment, while following requirements for social distancing. As of May 8, 2020, non-essential retailers may operate and offer goods in-store as long as guidelines are followed.
Stay-at-Home Update. On May 4, Gov. Doug Ducey issued an additional, updated
executive order, providing that as of May 4, additional businesses such as barbers and cosmetologists may resume operations if they follow guidelines such as requiring appointments and face coverings. Further, as of May 11, dine-in services may resume with limited capacity, social distancing and required sanitation protocols.
Stay-at-Home Update. Gov. Doug Ducey issued an updated executive order, continuing the phased-in approach for reopening segments of the state’s economy and lifting the stay-at-home order on May 15. Under the updated order, all businesses in the state must develop and implement policies based on the Centers for Disease Control and Prevention (CDC), OSHA, Department of Labor and Arizona Department of Health Services (ADHS) guidance to limit the further spread of COVID-19, including social distancing and sanitation procedures. In conjunction with the governor’s order, the ADHS issued additional guidance for certain business sectors and customers, including pools, gyms and fitness centers, and spas.
Elective Procedures. Gov. Ducey issued Executive Order 2020-10, effective March 21, 2020, ordering that all non-essential or elective surgeries (including elective dental surgeries) that utilize PPE or ventilators not be performed at any state licensed healthcare facility or by any state licensed healthcare provider. A “non-essential or elective surgery” is defined as “a surgery that can be delayed without undue risk to the current or future health of a patient.” Healthcare providers are to use their best medical judgment to determine whether a procedure is elective or not and in making that decision, must consider the health and age of the patient, especially in light of the COVID-19 infection and effects on recovery and the urgency of the surgery. Further, the order provides that a procedure should not be deemed elective “if it would threaten the patient’s life, threaten permanent dysfunction or impairment of any body part, risk metastasis or progression of staging, or require the patient to remain hospitalized if the surgery was delayed.”
Elective Procedures Update. On April 22, Gov. Ducey issued Executive Order 2020-32 to allow elective surgeries to resume on or after May 1 for those providers that have requested and received an exemption from the Arizona Department of Health Services from the prior executive order requiring the postponement of elective procedures. Providers and facilities must demonstrate that they can meet minimum criteria that includes the following:
- A continuing supply of PPE that will support the hospital, healthcare facility or provider for more than 14 days and that is not reliant on the state or a county health department
- Adequate staffing and bed availability with no greater than 80 percent of total bed capacity occupied, if it is a hospital
- Implementation of a robust COVID-19 testing plan to test all at-risk healthcare workers and each patient prior to the scheduling of an elective, non-essential surgery or during the pre-operative time period
- Implementation of a process to identify, inventory and document the availability of PPE, test collection kits and a lab that can run the COVID-19 diagnostic test
- Implementation of a universal symptom screening process for all staff, patients and visitors prior to entry into the facility
- Implementation of an enhanced cleaning process for patient and waiting areas
- Implementation of policies and procedures for appropriate discharge planning for patients, including pre-discharge diagnostic COVID-19 testing for patients transferring to a nursing care institution, residential care institution setting or group home for the developmentally disabled
- Implementation of policies and procedures that prioritize elective, non-essential surgeries based upon urgency following the Centers for Medicare & Medicaid Services’ adult elective surgery and procedures recommendations
Further, any hospital, facility or provider that obtains such an exemption from the prior prohibition will not be eligible to request or receive PPE from the state or county health departments.
Stay-at-Home. Arkansas does not yet appear to have issued a stay-at-home order.
Stay-at-Home Update. While Arkansas did not have a specific stay-at-home order in place, Gov. Asa Hutchinson released an executive order on May 5 providing that all businesses must adhere to social distancing guidelines, schools must remain closed, restaurants may resume dine-in services as of May 11 and gyms may resume operations as of May 4. Further, barbers, salons and medical spas may resume operations as of May 6.
Elective Procedures. On April 3, 2020, the Arkansas Department of Health issued a Directive on Elective Procedures stating that all procedures that can be safely postponed shall be rescheduled. The order notes that this requirement applies to all procedures, testing and office visits that can be safely postponed. Further, routine dental and eye care visits must also be postponed. While the directive does not apply to small rural hospitals with less than 60 beds or critical hospitals, such hospitals are strongly urged to follow the directive. Emergent and urgent care are considered an exception to the requirement to postpone procedures and treatment, and the directive provides that exceptions should be made in the following circumstances:
- There is a threat to the patient’s life if the procedure is not performed.
- There is a threat of permanent dysfunction of an extremity or organ system if the surgery is not done.
- There is a risk of metastasis or progression of staging of a disease or condition if the surgery is not performed.
- There is a risk that the patient’s condition will rapidly deteriorate if the surgery is not done, and there is a threat to life or an extremity or organ system or a threat of permanent dysfunction or disability.
Elective Procedures Update. Gov. Asa Hutchinson announced that elective procedures may resume in Arkansas beginning April 27, and the Arkansas Department of Health is working to finalize requirements regarding how elective procedures may proceed.
Elective Procedures Update. The Arkansas Department of Health issued a directive on resuming elective procedures, effective April 27, listing requirements for the resumption of these procedures. The directive notes that all facilities must understand their capabilities when determining whether to proceed with elective procedures, such as available beds, testing ability, workforce, supply chain, etc. Elective procedures are specifically limited as follows:
- Only outpatients with no plans for overnight stay.
- An American Society of Anesthesiologists rating of I or II.
- For those with a II rating, their disease process should be well-controlled.
- No contact with known COVID-19 patients during the preceding 14 days.
- Patients must be asymptomatic for COVID-19 per ADH guidelines.
- Start with a small initial volume of cases and increase incrementally as PPE availability and number of statewide occurrences dictate.
- Each institution must have an ample supply of PPE for resuming elective procedures while maintaining a reserve in case there is a resurgence of the virus. The acquisition of PPE is a matter for each institution to address and is not the responsibility of ADH.
- For an asymptomatic patient to be a candidate for a procedure, he/she must have at least one negative COVID-19 NAAT test within 48 hours prior to the beginning of the procedure.
These requirements apply to all elective procedures, including dental, eye, nasopharyngeal, chest surgery and colonoscopy
Stay-at-Home. Effective from March 19, 2020, Gov. Gavin Newsom issued California Executive Order N-33-20, directing that all individuals stay at home except as needed to maintain critical infrastructure sectors. Such critical infrastructure sectors include healthcare and public health which is defined broadly as healthcare facilities, research centers, suppliers, manufacturers, and other physical assets and vast, complex public-private information technology systems required for care delivery and to support the rapid, secure transmission and storage of large amounts of healthcare data. Essential workforce members therefore include healthcare providers and caregivers.
Stay-at-Home Update. Gov. Newsom announced an update to California's pandemic response roadmap outlining criteria and benchmarks the state will need to reach to modify the stay-at-home order. As with the federal government and other states, California’s plan will be completed in stages depending upon the facts on the ground.
Stay-at-Home Update. On May 8, California moved to stage two of its roadmap to reopening the state. The stage two guidance provides specific guidelines for reopening based on industry type, such as agriculture, childcare, manufacturing, lodging and dining. Curbside retail may reopen now during stage two, and additional retail, office and dine-in restaurants are expected to be able to open later during this stage. To reopen, when allowed by the state, each business must do the following:
- Perform a detailed risk assessment and implement a site-specific protection plan.
- Train employees on how to limit the spread of COVID-19, including how to screen themselves for symptoms and stay home if they have them.
- Implement individual control measures and screenings.
- Implement disinfecting protocols.
- Implement physical distancing guidelines.
Elective Procedures. The March 19 Executive Order also provides that the healthcare delivery system shall prioritize services to those who are sickest and shall prioritize resources, including PPE, for the providers providing direct care. While the order does not prohibit elective procedures, and California does not yet appear to have issued a specific order regarding elective procedures, the California Department of Public Health has noted on under Frequently Asked Questions that “non-essential medical care like eye exams, teeth cleaning, and elective procedures must/should be canceled or rescheduled. If possible, health care visits should be done remotely.” California does not yet appear to have issued any more formal guidance on criteria to consider whether a procedure is non-essential, but, as noted, the situation is rapidly changing.
Elective Procedures Update. Gov. Newsom issued an announcement on April 22 to allow for the resumption of medical care delayed under the state’s prior executive orders. The governor’s announcement notes that medical procedures — such as heart valve replacements, angioplasty and tumor removals — and key preventive care services, such as colonoscopies, that had been delayed will be able to resume. Further, California will work with the states of Washington and Oregon as part of the Western States Pact to share best practices for providers to resume such care in areas that have enough hospital capacity.
Elective Procedures Update. On April 26, the California Department of Public Health issued an announcement regarding the resumption of deferred and preventative healthcare. The announcement notes that it is focusing on resuming elective and non-urgent procedures at hospitals, outpatient care including primary care and specialty care in physician offices and health centers, behavioral health, long-term care, and ancillary, pharmacy and dental services. The department continues to urge that providers maximize telehealth whenever its use is appropriate based on the patient and condition. The department provides a number of considerations for resuming services:
- Prevalence of COVID-19
- Stock of PPE and other medical equipment and supplies
- Availability of testing
- Availability of staff
- Policies and procedures to provide infection control
- Screening of staff
- Social distancing requirements
- Face coverings for all patients
- Limiting the number of patients in waiting areas
The guidelines also provide factors to consider specific to settings such as hospitals, outpatient surgery and skilled nursing facilities.
Stay-at-Home. Gov. Jared Polis issued Amended Public Health Order 20-24, effective March 26, 2020, and updated on April 9 to extend the timeframe of the order through April 26, 2020. It requires individuals to stay at home and only travel for necessary activities or travel to and from work to operate critical businesses. Under the order, travel to receive healthcare services is a necessary activity. Further, travel to and from work to support healthcare operations, which is defined broadly to include hospitals, medical care, research laboratories, home health, pharmaceutical companies, pharmacies and behavioral health, is allowed.
Stay-at-Home Update. Gov. Jared Polis provided an update to the Colorado stay-at-home order, noting that it will be allowed to expire on April 26 and the state will move to a “Safer at Home Phase” beginning April 27. During this phase, residents will no longer be ordered to stay at home, but will be strongly encouraged to do so. Additionally, vulnerable populations must continue to stay at home unless leaving for essential activities. Retail businesses and 50 percent of offices will be able to open for curbside delivery but both will be required to maintain social distancing guidelines.
Elective Procedures. Gov. Polis issued Executive Order D 2020 009, effective March 23, 2020 through April 14, 2020, ordering that all hospitals and outpatient surgery and procedure providers cease all elective and non-essential surgeries and procedures. The order also directs all such providers to preserve PPE, ventilators, and respirators. Rural and critical access hospitals are exempted from the order, but are strongly advised to follow its directives. The order applies to all dental, medical, and veterinary “voluntary or elective procedures,” which is defined as surgeries or procedures that “can be delayed for a minimum of three months without undue risk to the current or future health of the patient as determined by the guidelines developed by the hospital, surgical center or other treating medical facility.” The order also notes that surgeries and procedures can continue for the following:
- There is a threat to the patient’s life if the surgery or procedure is not performed;
- There is a threat of permanent dysfunction of an extremity or organ system if the surgery or procedure is not performed;
- There is a risk of metastasis or progression of staging of a disease or condition if the surgery or procedure is not performed; or
- There is a risk that the patient's condition will rapidly deteriorate if the surgery or procedure is not performed and there is a threat to life, or to an extremity or organ system, or of permanent dysfunction or disability.
Further, the order provides that only essential personnel for a surgery or procedure shall be in the procedure room where PPE is required in order to preserve PPE. Hospitals and ASCs are also ordered to develop guidelines based on the above principles and must include a process for consultation with the treating provider regarding designating procedures as elective or non-essential.
Elective Procedures Update. Gov. Polis’ update and transition to a “Safer at Home Phase” will allow elective medical and dental procedures to resume but with strict precautions that must ensure adequate PPE is maintained and that the healthcare system has the ability to meet critical needs.
Elective Procedures Update. Gov. Jared Polis issued an expanded executive order, effective through May 27, 2020, detailing specific requirements for the performance of an elective procedure, defined as follows: “a voluntary or elective surgery or procedure means that the surgery or procedure can be delayed for a minimum of three months without undue risk to the current or future health of the patient as determined by the guidelines developed by the Facility ….” Each facility performing elective procedures must develop a plan to reduce or stop such procedures if there is a surge in COVID-19 infections, ensure adequate access to PPE and other medical supplies, develop a plan for intermittent scheduling and increased sanitation, screen patients and staff, and require social distancing, among other requirements.
Stay-at-Home. Gov. Ned Lamont issued Executive Order No. 7H, effective as of March 23, 2020 through April 22, 2020, directing all non-essential functions in Connecticut to suspend in-person operations. Essential businesses and functions include essential healthcare operations such as hospitals, clinics, dentists, pharmacies, elder care and home health care workers, companies and institutions involved in the research and development, manufacture, distribution, warehousing, and supplying of pharmaceuticals, biotechnology therapies, health care data, consumer health products, medical devices, diagnostics, equipment, services and any other healthcare related supplies or services.
Stay-at-Home Update. Gov. Ned Lamont issued Executive Order No. 7X, extending the state’s stay-at-home order from April 22 through May 20. Gov. Lamont has advised that his government will be working on a tri-state approach to reopen the region along with New York and New Jersey.
Stay-at-Home Update. While the state’s stay-at-home order is in effect at least through May 20, 2020, the state has issued business sector rules and certification requirements for a May 20 reopening that provide guidance specific to different business sectors, such as hair salons, museums and zoos, offices, restaurants, and retail and mall outlets. Further, such businesses must self-certify that they are following industry-specific guidelines to keep employees and customers safe.
Elective Procedures. Connecticut does not appear to have issued a specific order addressing prohibitions on elective procedures.
Stay-at-Home. Effective March 24, 2020, Gov. John Carney of Delaware issued the fifth modification to the Delaware State of Emergency order, which was issued on March 12, 2020. Similar to other states, the Delaware order prohibits residents from leaving their current residences, unless it is for an essential activity. Essential activities include the provision of healthcare services.
Stay-at-Home Update. On May 8, Gov. John Carney extended the state’s stay-at-home order until May 31, 2020. The governor also announced a framework for a phased reopening of the economy that he hopes will begin on June 1, 2020.
Elective Procedures. Delaware does not appear to have issued an order regarding elective procedures.
District of Columbia
Stay-at-Home. On March 30, 2020, the mayor of the District of Columbia issued a stay-at-home order instructing all D.C. residents to shelter in their place of residence. D.C. residents may leave their residence only to engage in certain essential activities, such as obtaining or working to provide healthcare services.
Stay-at-Home Update. Mayor Muriel Bowser extended the District of Columbia’s stay-at-home order through May 15, 2020. Besides extending the timeframe for the stay-at-home order, the mayor also issued safety protocols including requiring face masks for certain businesses — such as hotels, taxis and other private transportation, and workers and customers of food sellers — and strongly encouraging their use for individuals using public transit.
Stay-at-Home Update. Mayor Muriel Bowser issued an updated order on May 13, extending the District’s stay-at-home order and other public health emergency requirements (such as social distancing and wearing masks) through June 8.
Elective Procedures. While not an outright ban, the District of Columbia Department of Health issued Recommendations on Limitations of Elective and Non-Urgent Medical and Dental Procedures on March 17, 2020. The Department of Health recommends the postponement of all elective medical procedures, non-urgent hospital and outpatient visits, and non-urgent dental procedures if the delay will not cause harm.
Stay-at-Home. Florida Gov. Ron DeSantis issued Executive Order 20-91 requiring all Florida residents to remain in their place of residence. Effective 12:01 a.m. on April 3 through April 30, 2020, the order requires all individuals in Florida to restrict their movements and personal interactions outside their homes to obtaining essential services or conducting essential activities. Essential services encompasses healthcare services, including but not limited to clinical research and development needed for the COVID-19 response, mental and physical health, and pet care.
Stay-at-Home Update. On April 29, Gov. Ron DeSantis issued an updated executive order that is phase one of the governor’s step-by-step approach to reopening the state. On May 4, a number of businesses closed under prior executive orders, such as retail businesses and restaurants, were allowed to begin on-site operations but must adhere to lower occupancy and social distancing requirements. Gyms and fitness centers must remain closed. This phase of the governor’s order is set to last until the governor issues an updated order. Finally, the order allowing for limited reopening of businesses does not currently apply in the counties of Miami-Dade, Broward and Palm Beach, which are still under the governor’s stay-at-home orders restricting non-essential business functions.
Stay-at-Home Update. On May 15, Gov. Ron DeSantis issued an updated and expanded executive order regarding phase one of the state’s plan for recovery. The order contains updated guidance for reopening operations by certain business sectors — such as restaurants, retail, museums and gyms — that limits occupancy to 50 percent and requires social distancing and sanitation. The updated order also provides that professional sports venues may open for training, competitions, events and games. Amusement parks may submit a reopening plan to the state.
Elective Procedures. Gov. DeSantis issued Executive Order No. 20-72, effective March 20, 2020, prohibiting all hospitals, ASCs, office surgery centers, dental, orthodontic and endodontic offices, and other health care practitioners’ offices “from providing any medically unnecessary, non-urgent or non-emergency procedure or surgery which, if delayed, does not place a patient's immediate health, safety, or well-being at risk, or will, if delayed, not contribute to the worsening of a serious or life-threatening medical condition.” The order also states that, as noted in the CMS recommendations, examples of procedures to delay include some endoscopy, most cataract and lens surgeries, non-urgent spine and orthopedic procedures, and cosmetic procedures. Further, the directive also cites the CMS examples of permissible procedures that can be performed, such as removal of a cancerous tumors, transplants, limb-threatening vascular surgeries, trauma-related procedures, and dental care related to the relief of pain and management of infection.
Elective Procedures Update. As part of phase one of the governor’s executive order reopening the state, elective medical procedures may resume as of May 4. Specifically, hospitals, ASCs, office surgery centers, dental and orthodontic offices, endodontic offices and other healthcare practitioners’ offices may perform elective procedures if they meet all of the order’s requirements. These requirements include capacity to immediately treat COVID-19 patients in a surge, and adequate PPE on hand to accommodate such procedures and to treat COVID-19 patients without federal or state assistance. Also, the facility must not have refused to provide support and proactively engage with skilled nursing facilities, assisted living facilities and other long-term care providers.
Stay-at-Home. On April 1, 2020, Gov. Brian P. Kemp provided a media update regarding a Georgia stay-at-home order, initially effective April 3 through April 13, 2020. Gov. Kemp provided an additional media update on April 8, extending the order to require Georgia residents to remain at home. It provides guidance on essential services that will be allowed under the order.
Stay-at-Home Update. Gov. Brian Kemp announced that Georgia is on track to meet the Phase 1 gating criteria to reopen business recommended by the Trump administration. Therefore, the governor announced plans to incrementally reopen sectors of Georgia’s economy. First, Georgia will allow gyms, fitness centers, bowling alleys, body art studios, barbers, cosmetologists, hair designers, nail care artists, estheticians, their respective schools, and massage therapists to reopen starting April 24. These businesses must still meet restrictions such as minimal basis operations (including screening workers for fever and respiratory illness, enhancing workplace sanitation, wearing masks and gloves if appropriate, separating workspaces by at least six feet, teleworking where possible and implementing staggered shifts), as well as maintaining social distancing and regular sanitation. Further, subject to meeting social distancing and sanitation mandates, theaters, private social clubs and restaurant dine-in services will be allowed to reopen April 27. Bars, nightclubs, operators of amusement park rides, and live performance venues are to remain closed.
Stay-at-Home Update. Gov. Brian Kemp issued an updated
executive order on May 12, in effect through May 31, 2020, loosening restrictions on certain businesses, such as restaurants, while continuing to require other sectors to remain closed, such as bars, nightclubs and amusement parks. Restaurants may allow additional customers of up to 10 people per 300 square feet of public space.
Elective Procedures. Gov. Kemp’s announcement to incrementally reopen the state’s economy also noted that healthcare providers had voluntarily postponed elective procedures but that, given changes in the COVID-19 situation in the state, he believed Georgia was positioned to obtain the necessary PPE and medical supplies to resume elective procedures.
Stay-at-Home. Effective March 25, 2020, through April 30, 3030, Gov. David Y. Ige issued the Third Supplementary Proclamation for COVID-19. As with other states, the order prohibits individuals from leaving their homes, unless it is for an essential activity. Essential activities include healthcare services. The Hawaii order also requires essential businesses to exercise certain requirements, such as having separate operating hours for elderly and high-risk customers and posting online whether a facility is open and how to reach the facility and continue services by phone.
Stay-at-Home Update. Gov. Ige issued a sixth supplementary proclamation on April 25, extending the stay-at-home order until May 31.
Stay-at-Home Update. Gov. David Ige issued an updated proclamation allowing the first set of businesses to reopen May 7, including:
- Agriculture (non-food), such as landscape, ornamental plant growers and nurseries
- Auto dealerships
- Car washes
- Childcare services, licensed or authorized under the law
- Pet grooming services
- Observatories and support facilities
- Retail and repair services, such as apparel, florists, and watch and surfboard repair (Note: retail does not reopen in the city and county of Honolulu until May 15, and retail and most repair will not reopen in Maui County.)
- Shopping malls — limited to retail and repair services (Note: shopping malls are not reopening in Maui County.)
The proclamation also includes industry-specific guidelines for operations.
Elective Procedures. Gov. Ige previously issued Executive Order 20-25 ordering all healthcare facilities and providers to render assistance in support of the state’s response to the COVID-19 pandemic. The term “render assistance” includes canceling or postponing elective surgeries and procedures as each facility determines appropriate under the circumstances. The governor’s sixth supplementary proclamation restates the prior elective procedure executive order, which includes canceling or postponing elective surgeries; however, media reports indicate the governor may relax elective procedure prohibitions.
Stay-at-Home. On March 25, 2020, Gov. Brad Little issued an emergency proclamation in conjunction with an order issued by the director of the Department of Health imposing a statewide stay-at-home order for all Idaho residents. Under the stay-at-home order, Idaho residents are required to stay at their residences, unless seeking essential services. This includes the provision and business of healthcare.
Stay-at-Home Update. On April 25, and with the state’s stay-at-home order set to expire, Gov. Little announced a four-stage guideline for opening Idaho. The first stage takes effect May 1, allowing most retail business to open with certain parameters in place, such as social distancing and sanitation. The state will progress to the next stage only upon meeting specified criteria monitoring decreases or increases in COVID-19 cases.
Stay-at-Home Update. Gov. Brad Little issued a stay healthy order on May 16, providing that businesses except for those specified in the order may continue operations. Those that must stay closed include bars and nightclubs and large venues, such as movie theaters, concert venues, sporting venues and public pools. Businesses and individuals must continue to adhere to social distancing and sanitation requirements.
Elective Procedures. Idaho does not yet appear to have issued an order regarding elective procedures.
Stay-at-Home. Effective March 21 at 5 p.m. through April 7, 2020, Gov. J. B. Pritzker issued a stay-at-home order (COVID-19 Executive Order No. 8) in response to the spread of COVID-19 in Illinois. On April 1, 2020, Gov. Pritzker issued an updated COVID-19 Executive Order No. 16, extending the stay-at-home directive through April 30. Healthcare and public health operations listed in the Illinois order include examples such as biotechnology companies, medical cannabis dispensaries, reproductive health care providers, mental and substance abuse providers, and generally healthcare facilities, providers, and suppliers of healthcare services.
Stay-at-Home Update. Gov. Pritzker announced a modified stay-at-home order on April 23, extending the order through May 30, 2020. The order also provides that state parks will begin a phased reopening and reclassifies certain businesses — such as greenhouses, garden centers and nurseries — as essential businesses that may reopen. Further, non-essential retail businesses may reopen to fulfill telephone and online orders for outside pickup or delivery. Finally, the order directs all individuals to wear a face covering or mask when in public where six feet of social distancing cannot be maintained.
Elective Procedures. The Illinois Department of Public Health (IDPH) issued guidance regarding elective surgical procedures, which recommends cancelling all elective surgeries and procedures. Elective is defined as “those procedures that are pre-planned by both the patient and the physician that are advantageous to the patient but are NOT urgent or emergent. Physicians should use their medical judgement to determine the need for surgery.” The IDPH guidance also urges providers to consider other factors to ensure that the adequacy of healthcare providers, supplies, space, considering the spread and potential surge of COVID-19 such as:
- Staffing Considerations
- Continue to account for staffing necessary to perform emergent operations or procedures.
- Canceling elective procedures to free up nurses, doctors, surgeons, and anesthesia providers to provide care for patients when the system becomes overwhelmed.
- Hospitals should set up alternate staffing plans to accommodate the influx of patients.
- Examine utilizing nurse anesthetists, pre-/post-operative nurses, and nurse practitioners to provide alternative levels of care elsewhere.
- Use administrative/clerical staff to possibly set up childcare areas for essential medical staff to continue to work if daycares are closed.
- Hospitals should assess how to provide just in time training to those staff that could fulfill other roles in a patient care/assistive capacity.
- Space Considerations
- The pre-anesthesia and recovery rooms can then be used for patient care.
- Outpatient surgery centers affiliated with hospitals could be used for overflow or redirecting of less sick patients in an alternate treatment area and staff could be used there.
- Supplies/resource considerations
- Canceling procedures will also allow for reallocation of PPE that is used for surgical procedures.
- Beds, stretchers, and linens can be used for inpatient care instead of surgical procedures.
- Ventilators could be reallocated from surgical areas to patient care areas.
Elective Procedures Update. The Illinois Department of Public Health issued updated elective surgery and procedures guidance, providing that, beginning May 11, hospitals and ASCs may begin to perform elective surgeries and procedures if specific criteria are met. The guidance provides criteria based on whether a procedure is inpatient or outpatient, as well as addressing regional and facility criteria. Examples of criteria are COVID-19 prevalence in the area or facility, hospital or facility utilization and capacity, COVID-19 testing for prospective patients, protective equipment and infection control.
Elective Procedures Update. On May 13, Gov. J. B. Pritzker issued an executive order that essentially incorporates the Illinois Department of Public Heath’s prior mandates and requirements for the performance of elective procedures. The order further provides that hospitals and healthcare professionals canceling or postponing elective procedures, as well as those providing elective procedures, shall be immune from civil liability related to the diagnosis, treatment or transmission of COVID-19 if they were providing care consistent with current IDPH guidance.
Stay-at-Home. Indiana Gov. Eric J. Holcomb issued Executive Order No. 8, effective March 24, 2020 through April 6, 2020, ordering that all people stay at home unless engaging in essential activities or essential businesses and operations, which are defined as including travel for health and safety. Gov. Holcomb issued Executive Order 20-18 on April 6, 2020, extending the stay-at-home directive until April 20. The orders also provide that individuals may leave their residences to engage in healthcare and public health operations, which is broadly defined and includes hospitals, clinics, dental offices, pharmacies, public health entities, pharmaceutical and medical device companies, OBGYNs, eye care centers, home health, mental health and substance abuse, veterinary care, amongst others.
Stay-at-Home Update. Gov. Eric Holcomb issued an dupdated executive order on April 20, extending the stay-at-home order until May 1. Residents may still continue to travel for essential activities, which includes traveling to receive or work in healthcare.
Stay-at-Home Update. On May 1, Gov. Eric Holcomb issued the back on track plan to begin a phased reopening of the state. The plan notes that phase two begins on May 4 for most of the state (excluding the counties of Cass, Lake and Marion until later dates), and allows for the phased reopening of businesses while imposing requirements such as limited capacity and social distancing.
Elective procedures. Gov. Holcomb’s April 20 executive order also includes provisions addressing emergent and elective procedures. Specifically, the order provides that as long as sufficient PPE, staff, and necessary medical supplies are available to allow for treatment of COVID-19 patients, hospitals should continue to perform “clinically indicated procedures meant to diagnose, screen, or treat medical conditions that have the potential for short-term or long-term morbidity and/or mortality.” Examples include cardiac, vascular, neurologic, cancer, gastrointestinal, respiratory and other procedures meant to alleviate significant pain or symptoms making quality of life unacceptable.
The order also addresses prior restrictions on elective procedures by stating that the state will re-evaluate any such prohibitions for possible modifications that would allow for the resumption of such procedures at 11:59 p.m. on April 26.
Elective Procedures Update. Gov. Holcomb issued Executive Order 20-24 providing that, as of 11:59 p.m. on April 26, healthcare providers and facilities may resume elective procedures as long as they have developed and implemented policies and procedures to protect patients and staff against COVID-19 and have sufficient PPE. Providers are urged to consult any best practices or recommendations developed by medical trade associations.
Stay-at-Home. Although Iowa Gov. Kimberly K. Reynolds has not issued a “stay-at-home” order directly, the Proclamation of Disaster Emergency, signed on April 6, 2020, essentially functions as one. It prohibits all non-essential businesses, such as enclosed malls, playgrounds, campgrounds, restaurants and bars (for dine-in services). Similarly, gatherings of more than 10 people are prohibited. Essential operations, such as healthcare services, are allowed. The disaster proclamation will remain in effect through April 30, 2020.
Stay-at-Home Update. Gov. Reynolds issued an updated proclamation, extending the prior proclamations requiring the closure or limitation on business and travel, but with numerous modifications. The modified proclamation allows that, effective May 1, restaurants, fitness centers, malls, libraries, race tracks and certain other retail establishments may reopen in a limited fashion with public health measures in place in 77 counties. Businesses must adhere to specific criteria, such as reductions in operating capacity, social distancing and sanitation practices.
Stay-at-Home Update. Gov. Kim Reynolds issued an updated proclamation on May 6 allowing the reopening of additional businesses — such as campgrounds, drive-in movie theaters, tanning salons and medical spas — while imposing requirements such as social distancing and increased sanitation procedures. Malls may also reopen as long as they comply with additional protocols such as operating at 50 percent capacity, closing common seating areas and following social distancing and sanitation procedures.
Elective Procedures. Gov. Reynolds issued a new proclamation, effective March 27, 2020, providing that all non-essential or elective surgeries and procedures that utilize PPE shall not be performed by any hospital, ASC, or outpatient surgery provider. A non-essential or elective procedure is defined as “one that can be delayed without undue risk to the current or future health of a patient.” Providers must consider all appropriate factors, including but not limited to, “(1) threat to the patient's life if the surgery or procedure is not performed; (2) threat of permanent dysfunction of an extremity or organ system; (3) risk of metastasis or progression of staging; and (4) risk of rapidly worsening to severe symptoms.” Hospitals and ASCs must limit all non-essential individuals in surgeries or procedure rooms and patient care areas where PPE would be required. Further, each hospital and ASC is directed to establish an internal governance structure to ensure this order is carried out under these principles. This order also applies to dentists. On April 9, 2020, the Iowa Department of Public Health issued a PPE Shortage Order, reiterating that the demand for PPE must be immediately decreased and ordering compliance with the ban on nonessential medical and dental services that was issued in the initial proclamation, noted above, and with all subsequent extensions of the proclamation.
Elective Procedures Update. Gov. Reynolds also issued an updated proclamation on April 24, stating that, effective 5 a.m. on April 27, hospitals, outpatient surgery centers and outpatient procedure providers may perform inpatient surgeries and procedures that, if delayed, would pose a significant risk to quality of life. The same providers may also perform outpatient surgeries and procedures if the providers comply with specific requirements such as ensuring adequate supplies of PPE, COVID-19 testing and adequate hospital capacity.
Elective Procedures Update. Gov. Reynolds’ updated proclamation also notes that, as of May 6, dental offices may resume operation if they comply with additional requirements such as following dental board protocols and maintaining adequate PPE without having to rely on state or federal sources.
Stay-at-Home. On March 28, 2020, Gov. Laura Kelly issued Executive Order 20-16, requiring individuals to stay in their homes unless performing an essential activity. Such essential activities where travel is allowed include seeking medical care and going to and from work to perform an essential function. Such essential functions allowing for travel to and from work include providing medical care and services.
Stay-at-Home Update. On April 30, Gov. Laura Kelly issued phase one of the state’s plan to begin reopening businesses and lifting restrictions on travel, effective May 4. The order allows for the resumption of business activities by previously closed businesses as long as they meet social distancing guidelines, cleanliness and sanitation requirements, and avoid gatherings of 10 or more individuals when social distancing cannot be met. Under this order, several types of businesses must remain closed, such as bars and nightclubs (excluding carryout and curbside services), casinos, theaters and museums, fitness centers and gyms, and personal grooming services.
Stay-at-Home Update. On May 14, Gov. Laura Kelly issued an update on the state’s plan for reopening. Highlights of the updated order include the following:
- Continued prohibition on gatherings of 10 or more individuals.
- Nail salons, barber shops, hair salons, tanning salons, tattoo parlors and other personal service businesses where close contact cannot be avoided may open, but only for prescheduled appointments or online check-in.
- Fitness centers and health clubs may open, but in-person group classes may not occur and locker rooms must be closed except as necessary to use restroom facilities.
- In-person commencement or graduation ceremonies may occur with no more than 10 individuals in a room, gymnasium or facility at one time as long as six feet of social distancing is maintained. Outdoor drive-thru graduation ceremonies, during which no more than 10 individuals (e.g., school administration, graduate, family members) are in the same area outside of their vehicles at a time, are allowed.
The following must remain closed:
- Bars and night clubs, excluding curbside and carryout services
- Non-tribal casinos
- Theaters, museums and other indoor leisure spaces (trampoline parks, arcades, etc.)
- Community centers
- Outdoor and indoor large entertainment venues with capacity of 2,000 or more
- Fairs, festivals, carnivals and parades
- Swimming pools (other than backyard pools)
- Organized sports facilities, tournaments, games and practices
- Summer camps
Elective Procedure. Kansas does not yet appear to have issued an order regarding elective procedures.
Stay-at-Home. On March 25, 2020, Kentucky Gov. Andy Beshear issued Executive Order 2020-257. The order requires that only life-sustaining businesses may remain open, which includes healthcare operations. Issued on March 30, 2020, Executive Order 2020-258 prohibits Kentucky residents from traveling to any other state except when required by employment, to obtain certain essential services and for additional operations.
Stay-at-Home Update. On April 29, Gov. Andy Beshear presented an outline for the gradual reopening of businesses and lifting of travel restrictions in Kentucky. Under the outline, the governor presented a tentative schedule for reopening businesses, noting that as of May 11, manufacturing, construction, vehicle and vessel dealerships, professional services (at 50 percent of pre-outbreak capacity), horse racing (without spectators), pet grooming and boarding may reopen. By May 20, 2020, retail businesses and houses of worship may reopen. And, as of May 25, 2020, social gatherings of no more than 10, barbers, salons, cosmetology businesses and similar services may reopen. The governor also noted that certain businesses are not yet ready to reopen, including as restaurants, gyms, movie theaters, campgrounds, youth sports, summer camps, day cares (except for essential healthcare workers) and public pools.
Stay-at-Home Update. On May 7, Gov. Andy Beshear announced the next phase of reopening the state’s economy. Under this second phase, all businesses must follow the state’s 10 rules of staying healthy at work, as well as industry-specific guidance. The updated, tentative dates for reopening sectors of the economy are as follows:
- May 22 – Restaurants, limited to 33 percent capacity and outdoor seating
- June 1 – Movie theaters, fitness centers
- June 11 – Campgrounds, public and private
- June 15 – Child care with reduced capacity, and potentially, low-touch and outdoor youth sports
Elective Procedures. On March 18, 2020, the Kentucky Cabinet for Health and Family Services issued a directive “to cancel all procedures that in the opinion of a physician the delay will not cause harm to the patient or negatively affect the patient’s life expectancy.” The directive did not provide any further guidance on factors to consider or measure to take.
Elective Procedures Update. Gov. Beshear announced that, as of April 27, healthcare practitioners may resume non-urgent/emergent healthcare services, diagnostic radiology and lab services in the following settings:
- Hospital outpatient settings
- Healthcare clinics and medical offices
- Physical therapy settings, chiropractic offices and optometrist offices
- Dental offices (but with enhanced aerosol protections)
The announcement specifically notes that it does not apply to elective surgeries or procedures that will be addressed in a subsequent phase of reopening Kentucky. The announcement also provides guidelines that include using telehealth when possible, elimination of traditional waiting rooms, social distancing practices, screening and sanitation, and adequate PPE.
Elective Procedures Update. On May 13, the Cabinet for Health and Family Services issued an updated order providing that as of May 13, non-emergent/non-urgent inpatient surgeries may resume at 50 percent of pre-COVID-19 volumes. Further, the order notes that as of May 27, such procedures may resume at a volume determined by each facility. This order follows a prior order allowing outpatient/ambulatory surgeries and procedures to resume on May 6. Both orders set requirements for elective procedures, including requiring COVID-19 screening and/or testing, maintaining 30 percent of bed capacity for hospitals, maintaining a 14-day supply of PPE, social distancing requirements, screening of staff, visitation limitations and increased sanitation requirements.
Stay-at-Home. Gov. John Bel Edwards issued Proclamation No. 33 JBE 2020, effective March 23, 2020, wherein all residents were ordered to stay-at-home unless performing an essential activity. Such essential activities include going to and from work for essential worker functions, which includes the provision of healthcare.
Stay-at-Home Update. On April 27, Gov. Edwards extended the state’s stay-at-home order until May 15, but eased restrictions on a few businesses. Malls must remain closed but stores may open for curbside delivery, restaurants are allowed to open their outside dining areas for food consumption but without tableside service, and all employees who have contact with the public must wear face masks.
Stay-at-Home Update. Gov. John Bel Edwards issued a phase one order to reopen the state effective May 15. All higher-risk individuals are still encouraged to stay home as much as possible. Certain non-essential businesses — such as amusement parks, arcades, fairs, playgrounds, concert venues, massage establishments and tattoo parlors — are to remain closed. Restaurants can open with capacity limited to 25 percent of normal occupancy while adhering to social distancing and sanitation requirements. Salons and barber shops may also open with 25 percent capacity, but waiting areas must remain closed. Shopping malls and other retail stores must also operate under a reduced 25 percent capacity with increased social distancing and sanitation requirements.
Elective Procedures. Effective March 21, 2020, the Louisiana Department of Health updated its prior guidance and issued an additional order that all medical and surgical procedures, other than those specifically listed as exceptions, be postponed. Surgeries and procedures to treat emergency medical conditions, as defined by EMTALA, are exceptions to this rule and may be performed. Further, medical and surgical procedures are also allowed to avoid further harms from an underlying condition or disease. The department also noted that providers should transition to telehealth, when appropriate, and postpone all in-person services that can be safely postponed for 30 days.
Elective Procedures Update. On April 20, the Louisiana Department of Health issued an amended and updated notice and order regarding elective procedures, effective April 27. Under the amended order, all healthcare facilities and providers may perform medical and surgical procedures only if the order’s conditions are met. This order continues to allow procedures, as did former orders, to address emergency medical conditions under the Emergency Medical Treatment and Labor Act (EMTALA) as well as those procedures that are necessary to avoid further harms from an underlying condition or disease. The order also allows medical and surgical procedures to treat time-sensitive medical conditions if each of the following conditions are met:
- Each patient undergoing such a medical or surgical procedure shall undergo an appropriate pre-operative clinical evaluation to minimize the risk that the patient has COVID-19; such clinical evaluation shall include appropriate COVID-19 testing, if available.
- Each patient undergoing such a medical or surgical procedure shall be required to comply with strict social distancing measures from the time of the pre-operative clinical evaluation through the day of the surgery.
- The facility and healthcare provider shall have an adequate and appropriate supply of personal protective equipment (PPE) to treat the patient, as well as treat any other patient, including COVID-19-positive patients, in the facility. At no time shall a facility’s PPE on-site inventory to treat COVID-19-positive patient fall below a five-day supply. The facility shall not be dependent on the state or other governmental body to supply the PPE needed to meet the five-day requirement.
- There is an adequate supply chain to the facility/healthcare provider for medical equipment, supplies and medications.
- The facility/healthcare provider has adequate medical staff — including surgical, surgical support, recovery and nursing staff — to meet the needs of all patients.
- The facility/healthcare provider shall conduct constant monitoring of hospital, regional and state resources, as well as ESF-8 reports, indicating coronavirus burden of disease and impact.
Time-sensitive medical and surgical procedures must be immediately discontinued upon notice of the state health officer. Further, procedures should continue to be delayed if the delay will not adversely affect the patient or underlying disease process. Each facility or provider that performs a medical or surgical procedure must also contact each such patient within 10-14 days after the procedure to determine if the patient has any signs or symptoms of or tested positive for COVID-19, and must document this contact in the patient’s medical record. Providers are also directed to comply with CMS’ updated recommendations to reopen the healthcare system, noted above.
The amended health order also provides that dental providers may continue to treat emergency medical conditions, as defined under EMTALA, as well as dental procedures necessary to avoid further harms from an underlying condition or disease. In addition, dental providers may treat time-sensitive dental conditions if the dental provider complies with algorithms attached to the order and CDC guidelines. Dental providers must also contact patients to determine signs, symptoms or positive tests for COVID-19 within 10-14 days after the procedure and document this contact in the patient’s record.
For all other healthcare services, providers must offer telehealth whenever possible, but the Department of Health acknowledges that telehealth may not be appropriate in all cases, and providers acting in good faith will not be deemed in violation of the order. All other treatment must be postponed when patient outcomes will not be compromised. After the provision of any healthcare service other than a medical or surgical procedure or dental procedure (as noted above), providers must contact the patient within 10-14 days to determine if signs, symptoms, or positive results for COVID-19 tests exist and document the contact in the patient’s medical record.
Stay-at-Home. Gov. Janet Mills issued Executive Order No. 19 FY 19/20 on March 25 through April 8, 2020, ordering Maine residents to stay at home and close all non-essential businesses. The order references past guidance from the Main Center for Disease Control and Prevention. Gov. Mills also issued Executive Order No. 28 FY19/20 on March 31, extending the stay-at-home directive through April 30, 2020.
Stay-at-Home Update. On April 28, Gov. Mills extended the state’s stay-at-home order, but with certain modifications. Specifically, the governor will be issuing a safer-at-home order effective May 1, but the governor noted the order will allow limited expansion of certain businesses like personal services (barber shops and salons), drive-in movie theaters, outdoor recreation, state parks and auto dealerships.
Stay-at-Home Update. On May 8, Gov. Janet Mills announced a rural reopening plan allowing retail stores and restaurants to open with some in-store and dine-in services in the following specific counties: Aroostook, Piscataquis, Washington, Hancock, Somerset, Franklin, Oxford, Kennebec, Waldo, Knox, Lincoln and Sagadahoc. Retail stores may open on May 11, 2020, with limited capacity, enhanced sanitation procedures and touch-free transactions whenever possible. Restaurants may open on May 18, 2020, with enhanced sanitation procedures, additional physical distancing requirements and controls over customer flow by way of reservations whenever possible.
Elective Procedures. Following the Gov. Mills’ State of Emergency Proclamation, and per Maine Center for Disease Control and Prevention’s guidance issued on March 15, 2020, non-urgent medical and dental procedures, elective surgeries, and appointments should be postponed based on consultations between individuals and providers until further notice.
Elective Procedures Update. The governor’s announcement of a modified stay-at-home order notes that the forthcoming order will also allow the limited expansion of healthcare services with a recommendation that providers prioritize care for patients with time-sensitive conditions, assure safety for patients and staff, and manage essential resources, while maintaining capacity.
Stay-at-Home. On March 30, 2020, Gov. Larry Hogan amended Executive Order 20-03-30-01, effective as of 8 p.m. ET, March 30, 2020, providing that all individuals residing in Maryland are required to stay in their homes except to conduct essential activities and for work in businesses and organizations that are not required to close, which includes health care.
Stay-at-Home Update. Effective May 15, Maryland progressed to a safer-at-home order, allowing the reopening, on a limited basis subject to specific requirements, businesses such as religious institutions, retail establishments, manufacturing, salons and barber shops, and outdoor recreation, such as golf courses, shooting ranges and campgrounds. Businesses allowed to reopen must operate at 50 percent capacity and must follow directives regarding social distancing and sanitation. Restaurants must remain closed except for takeout and curbside delivery. Gyms and fitness centers must also remain closed.
Elective Surgeries. On March 23, 2020, the secretary of state issued aDirective and Order Regarding Various Healthcare Matters . This order requires that all elective and non-urgent medical procedures and appointments cease effective 5 p.m. on March 24, 2020. As such, all providers licensed or certified under Maryland health professional law shall perform only medical procedures that are critically necessary for the maintenance of health for a patient.
Elective Procedures Update. At the direction of Gov. Larry Hogan, the Maryland Department of Health has issued an updated order that allows healthcare facilities and providers to resume elective procedures on May 7, provided such facilities and providers meet all requirements of the order. Examples of these requirements include maintaining at least one week’s supply of PPE, requiring social distancing, screening of healthcare workers and patients for COVID-19, and increased sanitation requirements.
Stay-at-Home. Gov. Charles D. Baker issued Covid-19 Order No. 13 on March 23, 2020, which closes certain businesses that do not provide COVID-19 essential services, from 12 p.m. on March 24 through 12 p.m. on April 7, 2020. Gov. Baker issued an additional COVID-19 Order No. 21, extending the closure of businesses until May 4, 2020. Additionally, the Massachusetts Department of Public Health issued a Stay-at-Home Advisory for individuals above the age of 70 and those with underlying health conditions.
Stay-at-Home Update. On April 28, Gov. Baker announced an extension of the stay-at-home order until May 18, 2020.
Stay-at-Home Update. Gov. Charles D. Baker published a reopening Massachusetts plan effective May 18 that sets out information and guidance on when certain business sectors may reopen, and limitations and requirements for reopening. Individuals are still urged to remain home when possible. All businesses must adhere to social distancing, hygiene, staffing and sanitation requirements. The plan also includes guidance specific to certain sectors, such as office spaces, laboratories, manufacturing and personal care services.
Elective Procedures. The commissioner of the Massachusetts Department of Public Health, issued an order where all hospitals and ambulatory surgical centers are required to postpone or cancel any nonessential, elective invasive procedures. The guidance pursuant to the order indicates that these procedures are those scheduled in advance because the procedure does not involve a medical emergency. Examples of these procedures are highlighted within the guidance (found here), and include the following:
- Any procedures involving skin incision
- Injections of any substance into a joint space or body cavity
- Orthopedic procedures (e.g. hip or knee replacement)
- Endoscopy (e.g., colonoscopy, bronchoscopy, esophagogastric endoscopy, cystoscopy, percutaneous endoscopic gastronomy, J-tube placements, nephrostomy tube placements)
- Invasive radiologic procedures
- Dermatology procedures (e.g. excision and deep cryotherapy for malignant lesions- excluding cryotherapy for benign lesions)
- Invasive ophthalmic procedures including miscellaneous procedures involving implants
- Oral procedures (e.g., tooth extraction)
- Podiatric invasive procedures (e.g., removal of ingrown toenail)
- Skin or wound debridement
- Kidney stone lithotripsy
- Colposcopy and/or endometrial biopsy
The ultimate decision to cancel or postpone must be based upon the clinical judgement of the caring physician. This order is effective March 18, 2020, through the end of the state of emergency in Massachusetts, or until rescinded.
Elective Procedures Update. The reopening Massachusetts plan also notes that as of May 18, hospitals and community health centers, upon attestation, can provide high-priority preventative care, pediatric care and treatment for high-risk patients and conditions. Further, as of May 15, additional healthcare providers can provide these same limited services upon attestation. During phase two, the plan calls for expanded ambulatory in-person routine care to resume.
Stay-at-Home. Effective March 24, 2020, through April 12, 2020 at 11:59 p.m., Gov. Gretchen Whitmer of Michigan issued Executive Order 2020-21, ordering all individuals to stay at their place of residence. The order prohibits public and private gatherings of any number of people not part of a single household as well. Individuals or entities are prohibited from operating a business or conducting operations that require workers to leave their homes. Gov. Whitmer also issued Executive Order No. 2020-42, extending the initial stay-at-home order through April 30, 2020. This updated order creates additional requirements for essential businesses. Healthcare services remain essential under this new guidance.
Stay-at-Home Update. Under Executive Order 2020-70, Gov. Gretchen Whitmer extended the initial stay-at-home order until May 15, 2020. This updated guidance allows for the reopening of certain activities. For example, beginning May 7, 2020, construction workers and any work that is traditionally performed outdoors may resume.
Stay-at-Home Update. Gov. Gretchen Whitmer issued Executive Order No. 2020-77, which extended the stay-at-home order until May 28, 2020. The order also lifted initial restrictions on manufacturing work subject to certain precautionary measures. On May 7, Gov. Whitmer also detailed the six phases of the MI Safe Start Plan, indicating certain requirements that should be met for the state to reopen as normal.
Elective Medical and Dental Procedures. Gov. Whitmer issued Executive Order 2020-17, effective between March 21, 2020, and until the state of emergency is in effect. This order requires all hospitals, freestanding surgical outpatient facilities, and dental facilities to implement a plan to postpone all non-essential procedures.
A non-essential procedure under this order is defined as a medical or dental procedure that is not necessary to address a medical emergency or preserve the health and safety of a patient. Plans at medical centers to perform certain procedures such as joint replacement, bariatric surgery, and cosmetic surgery must at minimum be postponed unless it is emergent or trauma-related where postponement would significantly impact the health and welfare of the patient.
Dental procedures that must be postponed, at a minimum, include the following: cosmetic or aesthetic procedures; routine hygiene appointments; orthodontic procedures that do not relieve pain or infection, do not restore oral function, or are not trauma-related.
Stay-at-Home. Gov. Tim Walz issued Executive Order 20-20, effective March 27 through April 10, 2020, ordering all residents of Minnesota to stay in their place of residence except to engage in allowable activities and work in critical sectors. The order allows travel to seek and receive health care and to work in healthcare and public health functions. Gov. Walz issued Executive Order 20-33 on April 8, 2020, extending the stay-at-home order until May 3, 2020.
Stay-at-Home Update. On April 30, Gov. Tim Waltz extended and modified the stay-at-home order until May 18, 2020. Under the modified order, non-essential retail businesses may start offering curbside pickup and delivery services for customers.
Elective Procedures. Gov. Walz issued Executive Order 20-09, effective March 23, 2020, directing that all “non-essential or elective surgeries and procedures, including non-emergent or elective dental care, that utilize PPE or ventilators must be postponed indefinitely.” The order defines a non-essential surgery as one “that can be delayed without undue risk to the current or future health of a patient.” The governor’s order also provides examples of criteria to consider when making a decision as to whether a procedure is non-essential or elective:
- Threat to the patient’s life if surgery or procedure is not performed.
- Threat of permanent dysfunction of an extremity or organ system, including teeth and jaws.
- Risk of metastasis or progression of staging.
Elective Procedure Updates. On May 5, Gov. Tim Walz signed Executive Order 20-51. The order allows hospitals, ambulatory surgery centers (ASCs) and clinics — including veterinary, medical and dental facilities — to resume certain procedures that were initially delayed. Some requirements to resume certain procedures include the following:
- Any facility that offers procedures utilizing PPE or ventilators must develop and implement an internal structure and written plan. The plan must include an assessment of the risks and benefits of conducting the procedure during the COVID-19 pandemic.
- Facilities must consider community concerns.
- Adequate screening and testing, which includes protocols to screen all staff, patients and visitors for symptoms.
- The facility must follow and ensure professionals and staff are trained on Minnesota Department of Health, Centers for Disease Control and Prevention (CDC), and professional licensing board recommendations for the use of PPE and compliance audits.
- The facility must ensure that that PPE supply reserves and commercial PPE supply chains are adequate to meet the facility’s non-COVID-19-related PPE needs.
- Social distancing and other infection prevention methods must be implemented.
- Each patient must be informed of the risks associated with COVID-19 transmission, and the possibility that the procedure may be canceled on short notice if a patient tests positive for or experiences symptoms of COVID-19.
- Upon request, the facility must make its plan available to the Minnesota Department of Health or the facility’s licensing authority.
Stay-at-Home. Gov. Tate Reeves issued Executive Order No. 1466, effective April 3 – April 20, 2020, ordering all individuals in Mississippi to stay in their homes or places of residence except as otherwise allowed under the order. These exceptions include traveling to receive care from or work in essential healthcare operations, which is broadly defined to include hospitals/clinics, research and laboratory operations, nursing homes, residential healthcare facilities, assisted living facilities, medical and wholesale distribution, home health, and medical supply and distribution businesses. Gov. Tate Reeves issued an updated executive order, extending the state’s stay-at-home requirements until April 27.
Stay-at-Home Update. Gov. Tate Reeves announced on April 24, that the stay-at-home order expired on April 27. Places of amusement and entertainment, such as movie theatres and museums, and businesses that cannot avoid sustained person-to-person contact, such as salons or gyms, will remain closed.
Elective Procedures. On March 19, 2020, the Mississippi Department of Health issued a Health Alert Network Alert, which provides that all elective medical procedures and non-essential medical visits must be postponed. The alert also notes that physicians, hospitals, and medical centers must postpone elective surgical and diagnostic procedures until the COVID-19 situation has lessened and the supply of PPE is restored. Dentists are also specifically directed to delay non-emergency or routine dental procedures.
Elective Procedures Update. Following the Mississippi Department of Health’s prior order to postpone elective procedures. Gov. Reeves also issued an executive order to “postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.” The order also notes that it does not prohibit any procedure that will not have the potential to deplete hospital capacity, medical equipment, or PPE needed to address the COVID-19 pandemic.
Elective Procedures Update. On April 24, Gov. Tate Reeves issued Executive Order 1477, which allows providers to resume performing non-emergent, elective medical procedures and surgeries pursuant to certain guidelines. For example, non-emergent elective procedures should require the minimum use of PPE.
Stay-at-Home. Gov. Mike Parson announced a stay-at-home order issued by the director of the Missouri Department of Health and Human Services, effective April 6 - 24, 2020. The order stipulates that individuals residing in Missouri shall avoid leaving their residences except for engaging in essential activities or traveling to work in essential functions. Such essential activities and essential functions include leaving a residence to receive or work in medical and healthcare-related fields. On April 16, 2020, the director of the Department of Health and Senior Services in Missouri extended the stay-at-home order until at least May 3, 2020.
Stay-at-Home Update. On April 24, Gov. Parson signed Executive Order 20-09, which extends the Missouri state of emergency until June 15, 2020. However, the extension of the state of emergency is not an extension of the stay-at-home order, which will terminate on May 4, 2020. In a press briefing, Gov. Parson stated that the plan to reopen Missouri will begin May 4, 2020.
Elective Procedures. Missouri does not yet appear to have issued an order regarding elective procedures.
Stay-at-Home. Effective March 28, 2020, through April 10, 2020, Gov. Steve Bullock issued a stay-at-home directive, requiring Montana residents to remain at their place of residence to “the greatest extent possible.” Healthcare and healthcare operations are excluded from this order and are considered essential services. Gov. Bullock issued an additional directive on April 7, 2020, extending the stay-at-home directive through April 24, 2020.
Stay-at-Home. On April 22, Gov. Bullock announced a plan to begin the phased reopening of Montana. Beginning April 26 for individuals and April 27 for most businesses, the previous stay-at-home directives will expire. However, some businesses — such as gyms, movie theaters and places of assembly, where groups do not have the ability to social distance — shall remain closed.
Elective Procedures. Montana does not yet appear to have issued an order regarding elective procedures.
Stay-at-Home Order. Nebraska does not yet appear to have issued a stay-at-home order.
Elective Procedures. While neither the Nebraska governor nor the Department of Health appear to have issued a statewide directive ordering the postponement of elective procedures, the Department of Health has issued Directed Health Measure 2020-008, which is applicable to the majority of Nebraska counties. The measure prohibits any elective medical or dental surgery or procedure, defined as “a surgery or procedure that is scheduled in advance because it does not involve a medical or dental emergency. Surgeries or procedures that must be done to preserve the patient's life or physical health, but do not need to be performed immediately, are allowed by a case-by-case determination of the medical or dental provider.” Nebraska appears to be taking a county-by-county approach and has issued updates to these directive health measures to include additional counties in protective measures.
Elective Procedures Update. On April 20, Gov. Ricketts and the state’s public health director announced guidelines to allow the resumption of elective procedures on May 4, as long as hospitals and healthcare facilities have met requirements for available bed capacity and PPE. Hospitals must maintain 30 percent available bed capacity, 30 percent ICU capacity and 30 percent ventilator capacity, and have a two-week supply of PPE on hand to resume elective surgeries on May 4.
Stay-at-Home. Gov. Steve Sisolak issued Executive Directive 010, effective April 1 through April 30, 2020, ordering all Nevadans to stay in their place of residence. Gatherings of individuals are prohibited. The governor’s directive also provides exceptions to these orders that include allowing individuals to travel to provide services, perform necessary work or receive services from essential healthcare operations. Prior emergency regulations define essential healthcare operations to include hospitals, medical offices, clinics, healthcare suppliers, home healthcare providers, mental health providers, dentists, orthodontists, oral surgeons, physical or occupational therapists, speech therapists and pathologists, chiropractors, licensed homeopathic medical providers, biomedical facilities, non-governmental emergency service providers, optometrists and ophthalmologist offices, offices for certified nurse midwives, veterinary services and pharmaceuticals.
Stay-at-Home Update. On May 8, Gov. Steve Sisolak announced a roadmap to recovery for Nevada, which highlights a phased reopening for certain industries, including most retail locations. Most non-essential businesses remain closed, at least until May 15, 2020.
Elective Procedures. On April 28, Gov. Sisolak announced that the Nevada Hospital Association may prepare to resume medically necessary procedures that were halted to support COVID-19 efforts. Nevada did not previously restrict elective procedures; however, individual communities had restricted them. Nevada hospitals will provide medically necessary procedures according to an established plan to safely phase them in, based on the following factors:
- Clinical judgement
- Established guidelines
- Sufficient availability of PPE
- Flexible policies permitting immediate responses to a COVID-19 surge
- Alignment with established guidelines developed by the Centers for Disease Control and Prevention and regulatory agencies
Stay-at-Home. Effective March 27, 2020, at 11:59 p.m. through May 4, 2020, Gov. Christopher T. Sununu issued Emergency Order #17 Pursuant to Executive Order 2020-04, instructing all New Hampshire residents to stay in their residences. New Hampshire residents may continue to leave their homes for certain essential activities, which include visiting family members and providing or receiving medical services.
Stay-at-Home Update. On May 1, Gov. Chris Sununu announced the stay-at-home order would be extended until May 31, 2020. Universal guidance outlines the governor’s plans to reopen certain sectors.
Elective Procedures. New Hampshire does not yet appear to have issued an order regarding elective procedures.
Stay-at-Home. Gov. Phil Murphy issued Executive Order No. 107 on March 21, 2020, ordering residents to stay at their homes and the closure of all brick and mortar non-essential retail businesses. Healthcare providers and facilities have already been deemed “essential.”
Stay-at-Home Update. On April 27, Gov. Phil Murphy announced requirements and his plan to begin reopening New Jersey. The stay-at-home order is still in effect until further notice from the governor.
Elective Procedures. Effective March 27, 2020 at 5 p.m., Gov. Murphy issued Executive Order No. 109, providing that all elective surgeries and invasive procedures performed on adults, whether medical or dental, are suspended in the state. The term elective is defined as “any surgery or invasive procedure that can be delayed without undue risk to the current or future health of the patient as determined by the patient’s treating physician or dentist. An ‘elective’ surgery or invasive procedure does not include the administration of vaccines.” Providers are also directed to consider any post-operative complications that may place additional stress on local hospitals that do not have the capacity to accept transfers and the need to coordinate any possible post-operative admissions with local hospitals prior to performing any surgeries. It further directs ASCs to coordinate any possible post-surgery admissions with local hospitals prior to performing any surgeries.
Further, each hospital and ASC must develop written guidelines to ensure adherence to the provisions of this order and provide a copy of these guidelines to the New Jersey Department of Health. The guidelines developed must include a process for the treating provider about a designation that the surgery is elective under the terms of this order.
Stay-at-Home. Effective March 24, 2020, the New Mexico stay-at-home order issued by Gov. Michelle Lujan Grisham closes all non-essential businesses and requires those businesses that can to work from home. Similar to other states, essential healthcare services and operations will continue to be provided under the order. On April 6, 2020, the secretary of New Mexico’s Department of Health issued a public health order, which extends the initial stay-at-home order through April 30, 2020.
Stay-at-Home Update. During an April 22 news conference, Gov. Grisham informed New Mexico residents that they may expect the stay-at-home order to extend through May 15, 2020.
Stay-at-Home Update. On May 15, Gov. Michelle Grisham announced an extension of the state’s stay-at-home order through May 31, 2020. The extended order enables retailers, certain non-essential businesses and houses of worship to operate at 25 percent fire code capacity. It also requires that all individuals wear face coverings in public.
Elective Procedures. On March 24, 2020, the New Mexico secretary of public health issued a public health order prohibiting all hospitals, ambulatory surgical facilities, dental orthodontic and endodontic officers in New Mexico from providing non-essential health care surgeries, procedures, and services. This order is to stay in effect until the state of emergency in New Mexico is over.
Stay-at-Home. On March 20, 2020, Gov. Andrew Cuomo of New York issued the New York State on Pause Executive Order, which is a 10-point policy to address the COVID-19 outbreak. This order directs that as of 8 p.m. on March 22, 2020, all non-essential businesses statewide must close in-person operations. Further, an entity providing essential services or functions whether to an essential business or a non-essential business shall not be subjected to the in-person work restriction, but may operate at the level necessary to provide such service or function. The governor has also issued Guidance on Essential Services under the New York on Pause Executive Order, which provides that certain essential businesses that may continue with in-person operations include essential health care operations such as:
- research and laboratory services
- walk-in-care health facilities
- emergency veterinary and livestock services
- elder care
- medical wholesale and distribution
- home health care workers or aides for the elderly
- doctor and emergency dental
- nursing homes, or residential health care facilities or congregate care facilities
- medical supplies and equipment manufacturers and providers
Gov. Cuomo updated the New York State on Pause Executive Order on April 16, 2020, extending the initial order through May 15, 2020. He also issued Executive Order No. 202-17, which requires any individuals over the age of 2, able to medically tolerate a face covering, to wear one when in a public place and unable to maintain appropriate social distance.
Stay-at-Home Update. On May 14, Gov. Andrew Cuomo announced the stay-at-home order would be extended through June 13, 2020. The New York phased reopening, called NY Forward, includes required metrics regarding testing capacity, hospital bed capacity and contact tracing. During phase one, construction, manufacturing, wholesale trade, select retail curbside pickup, agriculture, forestry and fishing will reopen. Phase two enables professional services, finance and insurance, retail, administrative support, real estate, rental and leasing to reopen. Phases three and four allow restaurants and food services, and arts, entertainment, recreation and education to reopen, respectively.
Elective Procedures. In a speech on March 21, 2020, Gov. Cuomo also ordered the cancellation of all elective surgeries in New York starting on March 25, 2020. There does not yet appear to be any specific guidance regarding on what is an elective surgery, so we recommend that all providers continue to make their clinical judgments in line with the CMS and CDC guidelines and continue to document the need for any surgeries to illustrate why such procedures are necessary.
Elective Procedures Update. In an April 21 announcement, Gov. Cuomo stated that outpatient treatments may resume in counties and hospitals without significant risk of a COVID-19 surge in the near term. Beginning April 28, 2020, hospitals may resume elective outpatient treatments if the hospital capacity is over 25 percent for the county and if there have been fewer than 10 new hospitalizations of COVID-19 patients in the county over the preceding 10 days. If these conditions are not met, the hospital is not eligible to resume elective surgeries. Additionally, if a county or hospital that has resumed elective surgery experiences a decrease in hospital capacity below the 25 percent threshold or an increase of 10 or more new hospitalizations of COVID-19 patients, elective surgeries must cease. All patients must also test negative for COVID-19 prior to any elective outpatient treatment.
Restrictions on elective surgeries shall remain in place for the following counties: Bronx, Queens, Rockland, Nassau, Clinton, Yates, Westchester, Albany, Richmond, Schuyler, Kings, Suffolk, New York, Dutchess, Sullivan, Ulster, Erie, Orange and Rensselaer.
Stay-at-home. On March 27, 2020, Gov. Roy Cooper issued Executive Order No. 121, effective March 30, 2020, for a period of 30 days. The order requires all individuals in North Carolina to stay in their homes or residences. Individuals are allowed to travel for essential activities such as receiving medical care, and are allowed to travel to engage in an essential business and operation, which, as with other states, includes healthcare and public health operations.
Stay-at-Home Update. On April 23, Gov. Cooper issued Executive Order 135, which extends the stay-at-home order through May 8, 2020.
Stay-at-Home Update. On May 5, Gov. Roy Cooper issued Executive Order No. 138, which extends the stay-at-home order until May 22, 2020, but additional activities have been added for individuals, including certain retail locations.
Elective Procedures. The North Carolina Department of Health and Human Services issued a letter on March 20, 2020, requesting that effective March 23, 2020, all hospitals and ASCs suspend all elective and non-urgent surgeries and procedures. These are defined as “any procedure or surgery that if not done within the next four weeks would cause harm to the patient.” The letter also notes that hospitals and ASCs, starting on March 20, 2020, should institute an explicit, real-time review of all non-time-sensitive surgeries and procedure.
Stay-at-Home. The director of the Ohio Department of Health (ODH) issued a “stay-at-home” Order” effective 11:59 p.m. on March 23, 2020 through April 6, 2020, unless the director of ODH modifies the order. The ODH also issued an Amended Stay-at-Home Order extending the directive until May 1, 2020. Under these orders, all business and operations in Ohio except essential businesses and operations are ordered to cease all activities except for minimum basic operations. Essential businesses and operations include healthcare and public health options, which in turn is purposely defined broadly to avoid any impacts on the delivery of healthcare and includes, but is not limited to the following: hospitals; clinics; dental offices; pharmacies; public health entities, including those that compile, model, analyze and communicate public health information; pharmaceutical, pharmacy, medical device and equipment, and biotechnology companies (including operations, research and development, manufacture, and supply chain); organizations collecting blood, platelets, plasma, and other necessary materials; licensed medical marijuana dispensaries and licensed medical marijuana cultivation centers; obstetricians and gynecologists; eye care centers, including those that sell glasses and contact lenses; home healthcare services providers; mental health and substance use providers; other healthcare facilities and suppliers and providers of any related and/or ancillary healthcare services; and entities that transport and dispose of medical materials and remains.
Healthcare and public health options allowed to remain operational also include manufacturers, technicians, logistics, and warehouse operators and distributors of medical equipment, PPE, medical gases, pharmaceuticals, blood and blood products, vaccines, testing materials, laboratory supplies, cleaning, sanitizing, disinfecting or sterilization supplies, and tissue and paper towel products as well as veterinary care and all healthcare services provided to animals.
Stay-at-Home Update. On April 27, Gov. DeWine announced details of the “RestartOhio” plan, where certain businesses, as highlighted below, may restart operations throughout May. Opening these businesses requires certain mandatory safety requirements be met, including: requiring face coverings for employees and recommending them to clients and customers, conducting daily health assessments, maintaining good hygiene in the work environment, cleaning and sanitizing the workplace throughout the workday, and limiting capacity to meet social distancing guidelines — such as establishing maximum capacity at 50 percent of fire code and using appointment settings, if possible.
- Beginning May 4, 2020, manufacturing, distributing and construction businesses may reopen if the businesses meet certain mandatory safety requirements.
- Beginning May 4, 2020, general office environments may also reopen if mandatory safety requirements are followed.
- Beginning May 12, 2020, consumer, retail and services may reopen if the businesses can meet mandatory safety requirements for customers and employees.
The Ohio stay-at-home order remains in effect, and gatherings of more than 10 people are still prohibited.
Elective Procedures. Effective at 5 p.m., March 18, 2020, Gov. Mike DeWine announced that the Ohio Department of Health issued an order that all “non-essential or elective surgeries and procedures that utilize PPE should not be conducted.” The order defines a non-essential surgery as “a procedure that can be delayed without undue risk to the current or future health of a patient.” The order also provides the following examples of criteria for providers to consider:
- Threat to the patient’s life if surgery or procedure is not performed;
- Threat of permanent dysfunction of an extremity or organ system;
- Risk of metastasis or progression of staging; or
- Risk of rapidly worsening to severe symptoms (time sensitive).
The order also includes directs providers to eliminate all non-essential individuals from surgery/procedure rooms and patient care areas to preserve PPE.
Elective Procedures Update. According to Gov. DeWine’s announcement, beginning May 1, 2020, all medically necessary procedures that do not require an overnight stay or hospital admission and which minimize the use of PPE may move forward. This includes regular doctor visits, well-care checks, well-baby visits, outpatient surgeries, imaging procedures and diagnostic tests. Dental and veterinary services may also proceed if a safe environment is established. Providers and facilities that resume services must adhere to infection control practices, have sufficient PPE, and have discussions with patients regarding risks of contracting COVID-19.
Stay-at-Home. Oklahoma does not appear to have issued a stay-at-home order.
Elective Procedures. On March 24, 2020, Gov. Kevin Stitt issued the Fourth Amended Executive Order 2020-07, ordering that all medical providers postpone all elective surgeries, minor procedures, and non-emergency dental procedures until April 7, 2020. There are no specific criteria or guidelines listed for what constitutes an elective or non-emergency procedure.
Elective Procedures Update. On April 8, 2020, Gov. Stitt issued Executive Order 2020-13, extending the postponement of all elective surgeries, minor medical procedures and non-emergency dental procedures until April 30, 2020. The order encourages providers to consult the CMS Non-Emergent, Elective Medical Services, and Treatment Recommendations. Additionally, hospitals and physician clinics that operate within the state are required to submit a daily report to the Oklahoma State Department of Health with the following data:
- The number of available ICU beds, operating room beds, pediatric beds, PICU beds, ventilators, anesthesia machines capable of patient ventilation, ventilator connecting circuits, patient interfaces, negative flow rooms and overall occupancy status;
- COVID-19 test availability, which is the number of COVID-19 tests available for use at the facility location;
- The number of positive COVID-19 patients, patients under investigation in the hospital who are receiving treatment for COVID-19, and the individuals who have been sent home for self-quarantine; and
- Personal protective equipment the facility has on hand.
On April 16, Gov. Kevin Stitt released a second amended executive order, continuing to prohibit elective procedures until April 24. Providers must still postpone minor medical procedures and non-emergent dental procedures until April 30. Providers are also encouraged to consult the CMS’ recommendations on elective procedures. Elective procedures performed after April 24 are subject to the guidelines set forth in Executive Order 2020-02. This order provides a three-tier elective surgery acuity scale, which allows for the performance of high-acuity procedures (i.e., not elective), intermediate-acuity procedures as of April 24 and low-acuity procedures as of April 30.
Elective Procedures Update. The Oklahoma Department of Health issued guidance for resuming elective procedures on April 24, 2020. Testing guidelines include requiring elective surgery centers and hospitals to administer COVID-19 tests in private labs to test all patients prior to surgery, requiring patients to test negative for COVID-19 within 48 hours of the procedures, and postponing elective procedures on a patient with a history of COVID-19 until that patient receives two negative COVID-19 test results. Minor medical procedures and non-emergent dental procedures resumed on May 1, 2020.
Stay-at-Home. Effective March 23, 2020 until terminated by Gov. Kate Brown, Oregon Executive Order No. 20-12 prohibited non-essential activities if a distance of at least six-feet cannot be maintained, prohibited individuals from patronizing non-essential businesses, and included a carve-out for indoor and outdoor malls that may provide carryout food, health care, medical, pharmaceutical or pet store services. Grocery, health care, medical, and pharmacy services are allowed to remain open are encouraged to comply with social distancing guidelines.
Stay-at-Home Update. On May 7, Gov. Kate Brown announced guidance on reopening Oregon, including a phased approach that requires a certain decline in COVID-19 hospitalization, sufficient testing and contact tracing capability, plans for quarantine and isolation, hospital capacity, and sufficient PPE for healthcare workers.
Elective Procedures. In an effort to preserve PPE and health care resources, Gov. Brown issued Oregon Executive Order No. 20-10. Effective from March 23, 2020, through June 15, 2020, the order requires all elective and non-urgent procedures across all settings that utilize PPE for non-COVID-19 elective procedures, including hospitals, ASCs, outpatient clinics, dental clinics, and veterinary clinics to be canceled or rescheduled no earlier than June 15, 2020. Procedures are exempt if a three month delay would put patients at risk of irreversible harm. Criteria to determine irreversible harm include the following:
- Threat to a patient’s life;
- Threat of irreversible harm to the patient’s physician or mental health;
- Threat of permanent dysfunction of an extremity or organ system;
- Risk of metastasis or progression of staging; and
- Risk of rapidly worsening to sever symptoms.
Additionally, no later than March 27, 2020, this Executive Order requires hospitals, ASCs, outpatient clinics, dental clinics, and veterinary clinics with surplus PPE to notify the state PPE coordinator and deliver surplus PPE to the PPE coordinator.
Stay-at-Home. Gov. Tom Wolf issued an order on March 20, 2020, ordering the closure of all non-life-sustaining business close effective as of 12:01 a.m. on March 21, 2020. The governor’s office also provided a list of businesses that may continue physical operations that allows healthcare and social assistance services such as physician and practitioner offices, ambulatory surgery centers, home health agencies, nursing homes and hospitals to continue to operate, but specifically noted that all elective procedures are prohibited.
Stay-at-Home Update. Gov. Wolf issued an amendment to the original stay-at-home order, which extends the order until May 8, 2020.
Stay-at-Home Update. On May 7, Gov. Tom Wolf issued an amendment that extends the stay-at-home order until June 4, 2020.
Elective Procedures. The Pennsylvania Department of Health also issued Guidance on Ambulatory Surgical Facilities' Responses to COVID-19 regarding elective procedures that is instructive. The guidance notes that ASCs “may not perform any elective surgeries or procedures unless the surgery or procedures are life-sustaining measures relating to a progressive disease, such as cancer, vascular disease or organ failure.” The Department of Health also notes that ASCs must consult CMS guidelines on elective surgery and procedures prior to making a cancellation decision. The Department of Health’s guidance and CMS guidelines, read together, indicate that allowable procedures include such life-sustaining measures that are procedures or interventions likely to be necessary to sustain the life of a patient with a progressive disease (similar to Pennsylvania’ definitions of life-sustaining treatment in the context of an advance directive), preserve organ function, and avoid future serious harm (but, note that the CMS guidelines urge ASCs to consider postponing intermediate surgeries for otherwise healthy patients whose condition is not currently life-threatening but has the potential for future morbidity).
Elective Procedures Update. On April 27, the Pennsylvania Department of Health issued an update to its guidance on ambulatory surgical facilities' responses to COVID-19. ASCs may begin performing elective surgeries and procedures if the individual ASC makes the affirmative decision that it may do so without jeopardizing the safety of patients and staff or its ability to respond to COVID-19. In making its determination on continuing elective admissions, surgeries and procedures, the ASC must review the joint statement issued by the American College of Surgeons, American Society of Anesthesiologists, Association of Perioperative Registered Nurses and American Hospital Association. ASCs providing pediatric care must also review Pediatric Elective Surgery/Procedure Guidance issued by the Children’s Hospital Association. ASCs must also adhere to certain reporting requirements, as outlined in updated guidance.
Elective Procedures Update. On May 9, the Pennsylvania Department of Health issued Guidance on COVID-19 for Health Care Providers. Under this guidance, providers may resume non-urgent and elective care in additional to providing urgent and emergent care, but only where appropriate PPE is available and telemedicine is not clinically sufficient. Providers must apply their clinical judgement, weighing the availability of suppliers and the needs of their patients to begin elective care. All patients must be screened for COVID-19 symptoms, including temperature, shortness of breath or cough.
Stay-at-Home. Executive Order 20-13, effective March 28, 2020, through April 13, 2020, requires all Rhode Island residents to stay at home unless traveling for essential activities, such as medical treatment. Gov. Gina Raimondo also issued Executive Order 20-18 on April 8, 2020, extending the stay-at-home order through May 8, 2020. The stay-at-home order does not apply to public health, public safety or healthcare workers.
Stay-at-Home Update. On May 8, Gov. Gina Raimondo issued Executive Order 20-32, which lifted the stay-at-home order beginning May 9.
Elective Procedures. Rhode Island does not yet appear to have issued an order regarding elective procedures.
Elective Procedures. Executive Order 20-32 stated that elective medical procedures and other medical services, initially delayed due to the COVID-19 pandemic, shall be allowed to resume pursuant to plans submitted by healthcare providers.
Stay-at-Home. Gov. Henry McMaster issued Executive Order 2020-21, effective as of 5 p.m. on April 7 through the duration of the state emergency, ordering that all residents limit their movements outside their places of residence except for engaging in essential business, essential activities or critical infrastructure operations. The order, along with prior executive orders, defines engaging in essential activities as including those essential for health and safety, such as seeking medical, behavioral or emergency services. Further, critical infrastructure operations is defined to include performing or assisting with healthcare operations.
Stay-at-Home Update. On April 20, Gov. Henry McMaster issued Executive Order 2020-28, modifying the state’s prior stay-at-home order to reopen public beach access points and public waterways. The order further allows for the reopening, subject to continued social distancing guidelines, of retail businesses such as furniture, clothing, shoe, jewelry, luggage, department, sporting goods, books, crafts, music, flea markets and flower stores.
Stay-at-Home Update. Gov. Henry McMaster announced he was lifting the statewide stay-at-home order on May 4. Beginning May 11, restaurants were able to open for limited dine-in services, and additional businesses, such as gyms and pools, could open May 18.
Elective Procedures. South Carolina does not yet appear to have issued an order regarding elective procedures.
Stay-at-Home. South Dakota does not yet appear to have issued a stay-at-home order.
Elective Procedures. Gov. Kristi Noem has issued Executive Order 2020-08, effective until May 2, 2020, that, while not expressly ordering the cessation of all non-elective procedures, provides that all healthcare organizations in the state “should … postpone all non-essential elective surgeries to conserve (and thereby maximize) supplies of personal protected equipment (PPE).” The order does not contain any guidance regarding what constitutes a non-essential elective procedure.
Elective Procedures Update. On April 6, 2020, Gov. Noem issued Executive Order 2020-12, which requires all healthcare organizations within South Dakota to postpone all non-essential elective surgeries to conserve supplies of personal protective equipment. The order is effective throughout May 31, 2020.
Stay-at-Home. Tennessee Gov. Bill Lee issued Executive Order No. 22, directing all Tennessee residents to stay at their place of residence from March 31, 2020, until April 14, 2020. The order states that healthcare services are considered essential and are thus exempt from the order.
Stay-at-Home Update. Gov. Bill Lee announced on April 20 that the state stay-at-home order will expire on April 30, with the vast majority of businesses able to reopen on May 1.
Elective Procedures. Gov. Lee issued Executive Order No. 18, effective March 24, 2020 through April 13, 2020, prohibiting both dental and medical non-essential procedures. The order specifies that dental service providers must not perform any non-emergency dental or oral procedures. Non-emergency procedures including hygiene visits, cosmetic procedures, and other elective procedures. Further, the order does state that emergency procedures with acute dental needs may still be performed, which includes treatment for pain, swelling, trauma, or an abscess.
Regarding medical procedures, the governor’s order directs that all hospitals and outpatient surgical facilities shall not perform non-essential procedures, “which includes any medical procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” These facilities are directed to postpone, “at a minimum, joint replacement, bariatric surgery, and cosmetic surgery, except for emergency or trauma-related surgery where postponement would significantly impact the health, safety, or welfare of the patient.” Further, the order provides examples of procedures that do not have to be postponed, such as, “surgeries related to advanced cardiovascular disease (including coronary artery disease, heart failure, and arrhythmias) that would prolong life; oncological testing, treatment, and related procedures; pregnancy-related visits and procedures, including labor and delivery; organ transplantation; procedures related to dialysis; and emergency or trauma-related procedures where postponement would significantly impact the health, safety, and welfare of the patient.”
Elective Procedures Update. Under Executive Order No. 25, Gov. Lee extended his initial executive order on elective procedures through April 30, 2020. Additionally, this executive order provides that all healthcare professionals and facilities shall postpone elective and non-urgent surgical and invasive procedures. Elective and non-urgent procedures are defined as those procedures that can be can be delayed until the expiration of the executive order and are not required to provide life-sustaining treatment, to prevent death or risk of substantial impairment of a major bodily function, or to prevent rapid deterioration or serious adverse consequences to a patient's physical condition if the surgical or invasive procedure is not performed, as reasonably determined by a licensed medical provider.
Elective Procedures Update. On April 27, Gov. Bill Lee announced that elective procedures may resume beginning May 1, 2020, as long as each healthcare facility follows certain guidelines.
Stay-at-Home. Although Texas Gov. Greg Abbott has not issued an actual “stay-at-home” order, Executive Order GA 14 essentially operates as one. Effective until April 30, 2020, the order requires all Texas residents to minimize social gatherings and in-person contact with people who are not in the same household. Essential services, such as the provision of healthcare, are allowed.
Stay-at-Home Update. Gov. Greg Abbott issued an executive order on April 17, creating a task force to reopen Texas businesses. It notes the governor’s expectation that the state’s executive order requiring the closure of non-essential businesses will not be extended past its April 30 expiration date. The governor also issued Executive Order GA-16 allowing the April 24 reopening of non-essential businesses that can provide their services via pickup or delivery.
Stay-at-Home Update. On April 27, Gov. Greg Abbott announced a phased reopening plan for Texas under Executive Order (GA-18), allowing many non-essential businesses to reopen on May 1. This includes all retail stores, restaurants, movie theaters and malls. Businesses still must limit their capacity to 25 percent of their listed occupancy. Museums and libraries may also reopen, but interactive areas must remain closed. For counties with five or fewer laboratory-confirmed cased of COVID-19, counties may increase occupancy limits to 50 percent for the non-essential businesses listed above.
Elective Procedures. On March 22, 2020, Gov. Abbott issued Executive Order No. GA-09, effective through April 21, 2020, directing that all licensed health care professionals and licensed health care facilities must “postpone all surgeries and procedures that are not immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.” The order also provides that this prohibition does not apply to the performance of any procedure, in accordance with the commonly accepted standard of clinical practice, would not deplete hospital capacity or PPE needed to address the COVID-19 disaster.
Elective Procedures Update. Gov. Abbot released an updated executive order regarding elective procedures on April 17 that is in effect through May 8. The order continues to require the postponement of all “surgeries and procedures that are not medically necessary to diagnose or correct a serious medical condition of, or to preserve the life of, a patient who without timely performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.” The order’s prohibition on elective procedures, however, does not apply to any procedure that would not deplete hospital capacity or PPE needed to address the COVID-19 situation or any surgery or procedure in a licensed healthcare facility that has certified to the Texas Health and Human Services Commission: “(1) that it will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-l9 patients; and (2) that it will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID 19 disaster.”
Elective Procedures Update. On May 1, Gov. Abbott issued Executive Order GA-19, which states that hospitals licensed within Texas must reserve at least 15 percent of their capacity for the treatment of COVID-19 patients.
Utah does not appear to have issued a stay-at-home order.
Elective Procedures. Effective March 25, 2020, the Utah Department of Health issued a State Public Health Order providing that all licensed health care professionals must postpone all elective surgeries and procedures in accordance with the CMS recommendations. The order remains in effect until April 25, 2020.
Elective Procedures Update. On April 21, the executive director of the Utah Department of Health issued a state public health order, which allows some elective medical procedures to resume. Each hospital and surgery center in Utah must follow the protocols developed by the Utah Hospital Association. The state public health order requires healthcare providers that resume elective procedures to adhere to the following:
- Each individual, including staff, must wear a mask that covers the nose and mouth when within six feet of another individual; however, a patient is not required to wear a mask during a procedure involving the patient’s facial area that the mask would otherwise cover.
- Permit no more than one individual to accompany a patient.
- Ensure that no individuals congregate in or near the healthcare facility, and to the extent practicable, require patients to wait outside a healthcare facility or in their vehicles and escort each patient to a treatment room with minimal social interaction.
- Remove any toys or magazines from waiting rooms.
- Screen individuals who enter the healthcare facility by taking the individual’s temperature and administering a questionnaire addressing COVID-19 symptoms.
- Require any individual who shows any symptom consistent with COVID-19, or who reports that a member of the individual’s household or residence shows any symptom consistent with COVID-19, to leave the healthcare facility as soon as reasonably practicable.
- Install a protective barrier that separates patients from front-desk personnel or require front-desk personnel to wear masks that cover the nose and mouth.
- Require each healthcare professional to wear a face shield or goggles that seal around the eyes when performing a treatment that creates an aerosol.
- Maintain, with the appointment log, patient contact information to assist with contact tracing efforts.
Stay-at-Home. Gov. Phillip B. Scott issued an addendum to Executive Order 01-20, directing all Vermont residents to stay at their residences. Effective March 25, 2020, through April 15, 2020, this order prohibits all non-essential activities; however, similar to other executive orders, services or functions pursuant to healthcare are considered essential.
Stay-at-Home Update. Under Addendum 10 to the stay-at-home order, Gov. Scott extended the order until May 15, 2020. Guidance pursuant to reopening certain businesses — such as retail locations for curbside pickup, services with a single worker and businesses that may operate with a “micro-crew” of no more than two persons per location/job for outdoor and construction work — was also included within Addendum 10.
Stay-at-Home Update. On May 15, Gov. Phil Scott issued Addendum 14, extending the stay-at-home order until midnight on June 15, 2020.
Elective Procedures. Effective March 20, 2020, through April 15, 2020, Gov. Scott issued addendum 3 to Executive Order 01-20, which directs all clinicians within Vermont to expedite the postponement of all non-essential adult elective surgeries and medical and surgical procedures, including dental procedures. On April 10, 2020, Gov. Scott issued addendum 9 to Executive Order No. 01-20, which extends addendum 3 though May 15, 2020.
During ongoing procedures, the supply of PPE, hospital, and intensive care unit beds and ventilators should be considered – even regarding non-Covid-19 cases. Clinicians should weigh the following factors when considering whether a previously planned surgery should proceed:
- Current and projected COVID-19 cases in the facility and region
- Supply of PPE to the facilities in the system
- Staffing availability
- Bed availability, especially intensive care unit beds
- Ventilator availability
- Health and age of the patient, especially given the risks of concurrent COVID-19 infection during recovery
- Urgency of the procedure
Elective Procedures Update. On May 4, Gov. Phil Scott announced some elective procedures may resume. Outpatient clinic visits and diagnostic imaging may resume immediately if providers demonstrate adherence to physical distancing, CDC guidelines and safe environments. Providers may also perform outpatient surgeries and procedures that have minimal impact on inpatient bed capacity and PPE levels, including those performed at ASCs. Additional screenings and procedures must be in place.
Stay-at-Home. Gov. Ralph Northam issued Executive Order No. 55, effective March 30, 2020, through June 10, 2020, ordering all individuals in Virginia to remain in their homes or places of residence. The order, along with a prior order issued by Northam, allows individuals to travel to receive medical care and to work in critical areas, which include healthcare.
Stay-at-Home Update. On May 12, Gov. Ralph Northam issued Executive Order No. 62 which delayed phase one of the Virginia reopening plan for the counties of Arlington, Fairfax, Loudoun and Prince William; the cities of Alexandria, Fairfax, Falls Church, Manassas and Manassas Park; and the towns of Dumfries, Herndon, Leesburg and Vienna (collectively, the Northern Counties). Initially set to begin May 15, the phase one reopening is now delayed until May 28, 2020. The Northern Counties’ rate of positive COVID-19 tests is about 25 percent, while the rest of Virginia is about 10 percent positive. Due to the increased risk within the Northern Counties, the reopening within those counties was delayed.
Elective Procedures. Gov. Northam and the Virginia state health commissioner issued Order of Public Emergency Two, on March 25, 2020, prohibiting all inpatient and outpatient surgical hospitals, freestanding endoscopy centers, physicians’ offices, and dental, orthodontic, and endodontic offices in Virginia from performing procedures and surgeries that require PPE, which if delayed, are not anticipated to cause harm to the patient by negatively affecting the patient's health outcomes, or leading to disability or death.” The order does not affect or include outpatient visits in hospital-based clinics. Further, the governor’s order does not affect or apply to “the full suite of family planning services and procedures nor to treatment for patients with emergency or urgent needs.” All of the above listed facilities and providers may perform a procedure “that if delayed or canceled would result in the patient's condition worsening.” ASCs are also urged to work with local inpatient hospitals to assist with any needs.
Elective Procedures Update. On April 23, Gov. Northam announced the state’s order requiring the postponement of elective procedures will be extended until May 1, 2020, while the state evaluates how to safely ease restrictions on elective procedures
Elective Procedures Update. On April 29, Gov. Ralph Northam announced that Order of Public Emergency Two expired on May 1 and that the ban on elective procedures has expired.
Stay-at-Home. Gov. Jay Inslee issued Executive Order No. 20-25, effective March 23, 2020, through April 6, 2020, ordering that all people in Washington must cease leaving their home or residence except to conduct or participate in essential activities or for employment in essential business services. Healthcare has been included as an essential business service, therefore, healthcare professionals and facilities may still operate in-person services and treatment. The order also specifies that, effective March 25, 2020, through April 8, 2020, all non-essential businesses shall cease operations. Again, healthcare is listed as an essential business and may continue to operate. This order was extended through May 4, 2020, by Gov. Inslee in Executive Order No. 20-25.1.
Stay-at-Home Update. On May 1, Gov. Inslee announced that the stay-at-home order would be extended through May 31, 2020. Gov. Inslee also discussed a phased approach for resuming recreational, social and business activities. This phased approach includes four stages to slowly resume non-essential activities.
Stay-at-Home Update. On May 15, Gov. Jay Inslee issued additional guidance regarding restarting certain sectors, including construction, professional photography and recreational activities.
Elective Procedures. On March 19, 2020, Gov. Inslee issued Executive Order No. 20-24, prohibiting all hospitals, ambulatory surgical facilities, dental, orthodontic, and endodontic offices “from providing health care services, procedures, and surgeries that, if delayed, are not anticipated to cause harm to the patient within the next three months, with exceptions and as provided below.” The prohibition does not include outpatient visits in hospital-based clinics. The order also provides examples of procedures to delay, such as “most joint replacements, most cataract and lens surgeries, non-urgent cardiac procedures, cosmetic procedures, some endoscopy, and some interventional radiology services.” Further, the governor’s order does not apply to the full suite of family planning procedures or to services for patients with emergency needs, examples of which include “people with heart attacks, strokes, or motor vehicle accidents.” Hospitals and ASCs are specifically allowed to perform any surgery or procedure, “that if delayed or canceled would result in the patient’s condition worsening (for example, removal of a serious cancerous tumor or dental care related to the relief of pain and management of infection).”
Elective Procedures Update. On April 29, Gov. Jay Inslee provided updated guidance relating to the initial restrictions on non-urgent medical procedures. The guidance clarifies that the performance of all emergent or urgent services is allowed. These are services for which a delay would result in worsening a life-threatening or debilitating prognosis. Additionally, providers should use clinical judgment to determine performance of procedures considered to be non-urgent or “elective.” These clinical judgements must also be viewed through the lens of relative harm to patients of treatment versus deferment in terms of potential patient and provider contraction of COVID-19.
Previous guidance restricted procedures that may cause “harm” to the patient within the next three months but did not define “harm.” This updated guidance provides that to “assess harm, clinicians should consider if a patient's illness or injury is: causing significant pain, significant dysfunction in their daily life or work, or is either progressing, or at risk to progress. Additionally, clinicians should assess the risk of harm that could be experienced by a patient as a result of undertaking the surgery or procedure during the COVID-19 pandemic.”
Decisions to perform any medical procedures in hospitals, ASCs, dental facilities, orthodontic and endodontic offices should be weighed against the following criteria when determining harm:
- Expected advancement of disease process
- Possibility that delay results in more complex future surgery or treatment
- Increased loss of function
- Continuing or worsening of significant or severe pain
- Deterioration of the patient’s condition or overall health
- Whether delay would be expected to result in a less-positive ultimate medical or surgical outcome
- Whether leaving a condition untreated could render the patient more vulnerable to COVID-19 contraction, or resultant disease morbidity and/or mortality
- Whether non-surgical alternatives are not available or appropriate per current standards of care
- Patient’s co-morbidities or risk factors for morbidity or mortality, if inflicted with COVID-19 after procedure is performed
Additionally, certain PPE prerequisites, as outlined within the guidance must also be met before allowing permitted procedures. For example, for permitted procedures requiring an overnight stay, hospitals will not exceed 80 percent of available bed capacity.
Penalties and enforcement in the original elective procedure guidance (Executive Order No. 20-24) stated that violators may be subject to criminal penalties. The updated guidance clarifies that the clinical decision-making, pursuant to the previous guidance and this update, will serve as evidence that the performance of healthcare services was not a willful violation.
Gov. Jim Justice issued a stay-at-home order
for West Virginia residents. Effective March 24, 2020, the order is in effect until terminated by a subsequent executive order. Similar to other state orders, the West Virginia order allows for the provision of healthcare services.
Stay-at-Home Update. Gov. Jim Justice replaced the initial stay-at-home order with a safer-at-home order. This order does not require individuals to remain in their place of residence, but strongly encourages all individuals to remain at home unless performing an essential activity. Non-essential businesses must continue to temporarily cease operations, but certain small businesses with 10 or fewer employees with limited customer contact, and which adhere to additional restrictions as outlined within the safer-at-home guidelines, are allowed to reopen if occupancy is limited and proper social distancing and hygiene are maintained.
Elective Procedures. Gov. Justice issued Executive Order No. 16-20, effective April 1, 2020, directing that all elective medical procedures are prohibited, but that patients must still have access to urgent, medically necessary procedures such as those necessary to preserve life or long-term health. Elective is defined as “medical procedures that are not immediately medically necessary to preserve the patient's life or long-term health, except that procedures that cannot be postponed without compromising the patient's long-term health, procedures that cannot be performed consistent with other law at a later date, or procedures that are religiously mandated shall not be considered ‘elective’ under this Order.” The order applies to all hospitals, offices and clinics in the state.
Elective Procedures Update. Gov. Jim Justice issued an updated executive order on April 20, providing that more urgent elective medical procedures may be performed by hospitals, ASCs and providers who have applied for and received the approval of the West Virginia Office of Health Facility Licensure and Certification. The order provides that each facility must certify that it satisfies the following criteria:
- There is an established plan in place to safely phase in surgeries based on sound clinical judgment; such plan should meet guidelines established by the American College of Surgeons as a benchmark in developing individual resumption plans.
- The established plan provides for the prioritization of surgical/procedural care and highly complex chronic disease management needs of patients; select preventive services may also be necessary and appropriate as more urgent elective medical procedures.
- The established plan and all policies governing resumption of more urgent elective medical procedures ensure services can be timely and effectively adjusted in response to any change in public health conditions or surge in COVID-19 cases.
- There are measures in place to ensure necessary PPE for medical staff and patients, following Centers for Disease Control and Prevention guidelines; such measures shall include, at a minimum, ensuring that providers have the following:
- Adequate inventories of PPE, supplies, equipment and medicine in their facilities for at least a 14-day supply.
- A plan for conserving PPE, supplies, equipment and medicine.
- Access to a reliable supply chain to support continued operations and to effectively respond to an unexpected surge m a timely manner. Providers who practice in specialties or practice settings that may not experience a surge in COVID-19 patients must be aware of statewide PPE, supplies, equipment and medicine needs, and must be prepared to contribute as necessary.
- Guidelines developed by the Centers for Disease Control and Prevention, the Centers for Medicare & Medicaid Services, the West Virginia Department of Health and Human Resources and its agencies, and other regulatory agencies will be followed.
Hospitals and ASCs that have applied and received approval may resume more urgent elective procedures no earlier than April 28, 2020.
Stay-at-Home. Effective March 25, 2020, through April 24, 2020, the secretary of the Department of Health Services issued
Emergency Order #12. This initial order was extended through May 26, 2020, under Emergency Order #28. The order requires individuals present within Wisconsin to stay at their place of residence and prohibits public and private gathering of members of a single household. Healthcare has been included as an essential business service, and may continue to operate.
Stay-at-Home Update. Wisconsin’s secretary of the Department of Health Services has extended the stay-at-home order until May 26, 2020.
Stay-at-Home Update. On April 20, Gov. Evers announced Wisconsin’s "Badger Bounce Back” plan, which outlines the criteria for reopening Wisconsin following the stay-at-home order. Currently, Wisconsin does not meet the necessary criteria to reopen, which involves progression through certain phases of testing for COVID-19, contact tracing, tracking the spread of COVID-19, procuring PPE and assessing healthcare capacity.
Stay-at-Home Update. On May 13, 2020, the Supreme Court of Wisconsin overturned the state’s safer-at-home order and mandated that statewide orders of general application must first be approved by the Wisconsin Legislature. (See Wisconsin Legislature v. Andrea Palm.) As a result of the ruling, Gov. Tony Evers will be limited in implementing future statewide orders.
Elective Procedures. Wisconsin has not yet prohibited elective surgeries. Guidance from the Wisconsin Department of Health, DPH Numbered Memo 2020-14 does recommend that dental practices postpone all elective and non-urgent care treatment.
Stay-at-Home. Wyoming does not appear to have a stay-at-home order in place.
Elective Procedures. While the Wyoming governor and the Department of Health did not prohibit elective procedures, the Department of Health issued guidance on resuming elective and non-emergent procedures for those hospitals and providers that had suspended the procedures per CMS guidance. The Wyoming guidance suggests that providers should do the following:
- Consult with their county health officers on decisions to resume suspended care.
- Proceed cautiously with elective procedures.
- Ensure referrals can be made if complications arise.
- Ensure there is adequate COVID-19 testing for symptomatic patients.
- Ensure PPE provided by the state of Wyoming is not be used for elective or non-emergent procedures.
- Ensure the facility has adequate PPE, staff and capacity to care for a potential COVID-19 surge.
McGuireWoods has published additional thought leadership related to how companies across various industries can address crucial COVID-19-related business and legal issues.
In a series of video alerts, McGuireWoods’ healthcare lawyers address
issues providers face and overcoming COVID-19 challenges.