Illinois Executive Order Provides Discretion to Hospitals Amid COVID-19 Pandemic

September 9, 2020

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4 Illinois Register (page 14,334), effective Aug. 24, many of the emergency regulations adopted for hospitals have been repealed.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.

  1. 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.

  2. 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, new rules 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:
    1. providing safe and quality care;
    2. establishing policies on visitation;
    3. 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
    4. 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.

    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.

  3. 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.

    1. 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.

    2. 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.

    3. 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 period.

    4. 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 period.

    5. 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.

  4. 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 firm’s COVID-19 response team stands ready to help clients navigate urgent and evolving legal and business issues arising from the COVID-19 pandemic.


Healthcare Videos
COVID-19: Healthcare Video Alerts
In a series of video alerts, McGuireWoods’ healthcare lawyers address issues providers face and overcoming COVID-19 challenges.