Update: Since release of this alert (originally posted April 23),
Illinois has continued to update its emergency responses to the COVID-19
pandemic, as covered in part within our national review of stay-at-home and
elective procedure orders. Most recently, in the
Sept. 4 Illinois Register (page 14,334), effective Aug. 24,
many of the emergency regulations adopted for hospitals have been repealed.
Providers should review the following carefully, understanding the changing
nature of Illinois’s response to the COVID-19 pandemic and that the executive
order may no longer be in effect.
On April 16, 2020, and in connection with the
gubernatorial disaster proclamations
previously announced in Illinois, Gov. J. B. Pritzker issued
Executive Order 2020-26, which provides greater discretion to hospital providers during the 2019
novel coronavirus (COVID-19) disaster period.
The executive order recognizes the need for hospitals to devote substantial
resources in response to the increasing spread of COVID-19 across the
state. Accordingly, in an effort to grant health systems the flexibility
needed to ensure adequate bed capacity, supplies and providers to treat
patients affected by COVID-19 and other illnesses, the executive order
suspends various statutory and regulatory requirements that could hinder
the effective provision of medical treatment at Illinois hospitals.
Read on for four kkey things hospitals and healthcare
providers should know about the Illinois executive order.
- Enforcement Discretion During Disaster Period. The
executive order applies for the duration of the gubernatorial disaster
proclamations previously announced, which are currently in effect through
April 30, 2020 (the disaster period), although this disaster period is
expected to be extended. The executive order directs the Illinois
Department of Public Health (IDPH) to exercise discretion in enforcement
during this period of all provisions set forth in: (i) the Hospital
Licensing Act; (ii) the Emergency Medical Services Systems Act; (iii) the
Department of Health Powers and Duties Law; (iv) the Illinois Adverse
Health Care Events Reporting Law of 2005; and (v) any corresponding
regulations. This discretion instructs IDPH to recognize the need for
hospitals and other healthcare providers to make accommodations in response
to the COVID-19 pandemic. Importantly, these provisions are suspended, not
eliminated, and it is expected that requirements will promptly resume for
hospitals after the disaster period ends.
- The IDPH Issued Additional Emergency Rules. The
executive order calls for the IDPH to issue additional emergency rules
necessary to “effectuate the intent of [the] Executive Order.” Accordingly,
have been issued, which hospital providers should carefully review. The
rules allow the state of Illinois, through its agencies or in cooperation
with one or more federal or local government bodies, and hospitals to
establish alternate care facilities (ACFs) to help provide additional care
outside a hospital setting, subject to certain requirements. These ACFs are
intended to ensure: (i) adequate room and board, medical staff and ongoing
diagnosis/treatment of COVID-19 patients and (ii) an increased regional
hospital capacity to treat non-COVID-19 patients. As long as the ACFs meet
the standards set forth in the IDPH emergency rules, the Hospital Licensing
Act and corresponding regulations are suspended with regard to the ACFs.
The emergency rules’ provisions include, but are not limited to:
These ACF standards may allow Illinois hospitals to utilize the federal
Centers for Medicare & Medicaid Services’ (CMS) hospitals-without-walls
criteria discussed in an
April 6 McGuireWoods alert.
- providing safe and quality care;
- establishing policies on visitation;
- enacting written policies for the admission, discharge and transfer of
all patients from or to an acute care hospital or other healthcare
facility, as appropriate; and
- prohibiting the denial of medical care due to race, ethnicity, religion,
sex, gender identity, sexual orientation, national origin, immigration
status, disability or ability to pay.
- Statutory and Regulatory Requirements Suspended, not Eliminated. The executive order temporarily suspends numerous requirements imposed on
Illinois hospitals through statutes as well as all corresponding
regulations. Hospitals should know these suspensions last only for
the duration of the disaster period. Specifically, the executive order
suspends the following requirements.
- Certain Licensing Requirements. The executive order suspends
certain hospital licensing requirements under the Hospital Licensing Act,
including but not limited to requirements surrounding notice of discharge,
patient notice of observation status, reports to the IDPH regarding opioid
overdoses and requirements regarding the employment of physicians. Notably,
this would allow hospitals to employ physicians during the COVID-19
pandemic without making them members of their medical staff. Further,
hospitals would not be required to implement written hospital-wide staffing
plans, which establish the minimum registered nurse-to-patient ratio for
each inpatient care unit, recognizing the current overextension of
healthcare providers due to the pandemic.
- Nearly All Provisions of the Hospital Report Card Act (with
limited exceptions). The executive order suspends all provisions of the
Hospital Report Card Act (with the limited exceptions of whistleblower
protections and private rights of action). Examples of these suspended
requirements include the number of required registered
nurses, licensed practical nurses and other nursing personnel to be
assigned to each patient care unit; orientation and training requirements;
and quarterly reporting requirements. Though the executive order suspends a
number of requirements, it does not suspend whistleblower protections and
private rights of action, which implies that hospitals are not immune from
liability for failure to comply with non-suspended provisions.
- Requirements Implemented by the Department of Public Health Powers and
Duties Law Regarding Phlebotomies and Uterine Cytologic Examinations. For the duration of the executive order, certain requirements are
suspended with respect to phlebotomists, including that training materials
be made available to ensure phlebotomists are properly trained when
treating children and those with intellectual and developmental
disabilities. Additionally, the executive order suspends the requirement
that every Illinois hospital offer a uterine cytologic examination for
cancer to every female in-patient who is 20 years old or older unless such
exam is either contra-indicated by the attending physician or was performed
within the previous year. The requirement that hospitals maintain records
to show either the results of the cytologic examination or that the test
was either not applicable or refused is also suspended during the disaster
- All Reporting of Adverse Healthcare Events. All reporting
deadlines required under the Illinois Adverse Health Care Events Reporting
Law are suspended during the disaster period. Hospitals should know that
the executive order does not suspend the obligation to report,
only the timing of submission, and deadlines will resume after the disaster
- Requirements Under the Emergency Medical Services (EMS) Systems Act. Requirements under the EMS Act are suspended to the extent necessary in
an effort to permit EMS personnel to transport patients to authorized ACFs.
Most importantly, the executive order suspends trauma center standards, the
designation of EMS regions determining which EMS systems and trauma centers
fall within a certain geographic region, prohibitions against out-of-state
EMS vehicles or personnel from transporting patients, and certain criminal
penalties or civil fines for violations of the EMS Systems Act.
- Federal Law. The executive order notes that any of the
emergency rules promulgated by the IDPH shall be interpreted “consistent”
with any waivers, regulations or other official guidance by CMS or the U.S.
Department of Health and Human Services pertaining to: (i) establishment of
temporary expansion sites by hospitals; (ii) the federal Physician Self
Referral Law; (iii) the Emergency Treatment & Labor Act; (iv) Medicare,
Medicaid and Children’s Health Insurance Program participation
requirements; and (v) the Health Insurance Portability and Accountability
Act of 1996 privacy rule. Therefore, providers relying on the protection of
the executive order and emergency rules should be aware of federal
requirements as well.
Please contact the authors for additional information on how this executive
order could affect the delivery of healthcare at hospital systems
throughout Illinois during the COVID-19 disaster period, including its
interaction with federal requirements. McGuireWoods has published additional thought leadership on how companies across various industries
can address crucial coronavirus-related business and legal issues. The
COVID-19 response team stands ready to help clients navigate urgent and evolving legal and
business issues arising from the COVID-19 pandemic.
In a series of video alerts, McGuireWoods’ healthcare lawyers address
issues providers face and overcoming COVID-19 challenges.