Considerations for Resuming Non-Urgent and Elective Medical Treatment

After nearly two months of rolling shutdowns in response to the COVID-19 pandemic, businesses across all industries are preparing to resume operations in ways that prioritize the health and safety of the public and their workforce. Many states have issued mandates or guidance related to the safe reopening of businesses, and federal agency guidance on implicated issues is abundant.

Following the March 18 recommendation by the Centers for Medicare and Medicaid Services (CMS) to limit non-essential healthcare services to ensure sufficient capacity and supplies to care for COVID-19 patients, many states and healthcare providers temporarily suspended all non-urgent and elective medical treatment. Now that the incidence of COVID-19 is beginning to stabilize in regions across the nation, CMS issued new recommendations on April 19 intended to guide healthcare providers in resuming previously suspended healthcare operations.

The most recent recommendations by CMS are meant to be applied in conjunction with President Trump’s Guidelines for Opening Up America Again issued April 16. These guidelines establish “Gating Criteria” that should be satisfied before states or regions move into Phase 1 of reopening. Essentially, a Phase 1 area will have a downward trajectory of cases and positive test results over a 14-day period and will have robust testing in place for at-risk healthcare workers.

As healthcare facilities begin resuming elective and non-urgent medical procedures, the following compilation of governmental and industry recommendations can be a useful tool for healthcare facilities to safeguard the health and safety of patients and staff and also to reduce the risk of community spread and COVID-19 surges.


  • Comply with stay-at-home orders and other applicable limitations. Decisions at state and local levels are informed by considerations of disease prevalence and resource limitations that impact the public at large. Facilities should prioritize compliance with local restrictions and recommendations.
  • Monitor for orders or guidance specific to resuming elective procedures. Many states have begun issuing orders or guidance documents related to protocols that healthcare providers should implement prior to resuming elective or non-urgent care. Check your state coronavirus resources, licensing boards, or public health departments for applicable guidance.
  • Coordinate with public health officials and other care providers. Ensure there are adequate workforce and resources across the various phases of care that may be impacted by resumed operations (e.g., pharmacy, imaging, pathology, post-acute care).
  • Continually evaluate community prevalence of COVID-19. All facilities should engage in ongoing monitoring to ensure their region remains at a low risk of incidence and should be prepared to decrease or stop non-essential medical treatment in the event of a COVID-19 surge.


  • Prioritize the provision of care based on medical necessity. High-complexity disease management and surgical/procedural care that has been deferred should generally be prioritized over preventative services. For surgeries, start with patients who have lower co-morbidities and surgical risks, and with procedures that are lower risk with regard to airborne transmission or unintended hospital admissions. Develop policies on how treatment will be prioritized for transparent and consistent application.
  • Utilize telehealth when appropriate. Limiting in-office visits whenever possible eliminates the risks of asymptomatic spread, minimizes the risk of exposure to vulnerable populations, and reduces the utilization of personal protective equipment (PPE).
  • Implement non-COVID care zones. Facilities may consider whether it is feasible to dedicate specific areas to caring exclusively for non-COVID patients. Staff working in these areas would be routinely screened and segregated from areas where COVID-19 patients are treated and other staff with COVID-19 exposure.
  • Screen patients for COVID-19 risk factors prior to in-person appointments. The CDC published a Patient Screening Guide that can be utilized by healthcare staff both when patients set appointments and on the day of their appointment, allowing for the appropriate triage of patients based on their risk of COVID-19 transmission.
  • If possible, screen patients via laboratory testing before in-person appointments. Where feasible, patients should be screened by laboratory testing before presenting for care in the facility.
  • Prioritize the triage of COVID-19 symptomatic patients. Ensure that patients presenting with influenza-like illnesses are triaged and isolated from other individuals as quickly as possible upon identification.
  • Train staff on communicating with patients about COVID-19 and related safety protocols. Staff will be interacting with patients in new ways, behind masks or over telehealth modalities, which may create an atmosphere of patient uncertainty and fear. Staff should be prepared to address patient concerns through effective communication and educational tools.
  • Adjust the standard of care, if necessary. COVID-19 may ultimately impact the community standard of care, requiring additional precautions in the provision of care. Stay up to date on CDC and community recommendations to ensure care is consistent with applicable standards.
  • Consider updating patient consent forms. For some medical treatment, COVID-19 may pose a risk that should be disclosed to the patient in advance of medical care. Consider whether to revise consent forms to include information about risks of COVID-19 infections or related complications.


  • Modify premises to optimize social distancing. Consider whether there are modifications that can be made to reception and patient waiting areas, entrances and exits, and traffic patterns to maximize distancing afforded to patients and staff.
  • Maintain low patient volumes. Modify scheduling patterns to reduce the number of patients present in the facility at any particular time to maximize social distancing within the facility.
  • Prohibit visitors, where appropriate. Unless necessary for some aspect of patient care, non-essential visitors should be restricted.
  • Implement robust cleaning and disinfecting protocols. Although most healthcare providers have robust protocols already in place, an exacting review may identify areas for improvement. Confirm that products being used are effective against COVID-19, as listed on the EPA Product Guide. This may include retraining staff on infection prevention measures specific to the facility type.
  • Monitor staff and patients for adherence to respiratory and hand hygiene etiquette. Post visual alerts to remind individuals how to practice appropriate source control measures, and provide supplies for compliance, including alcohol-based hand rubs and facemasks.
  • Install physical barriers at reception areas. Limit close contact between triage staff and potentially infectious patients.


  • Require staff to wear facemasks at all times. Consistent with CDC’s recommendations for universal source control, healthcare providers and staff should wear facemasks at all times. Procedures that have higher risks of aerosol transmission should be done with precautions appropriate to the risk of such transmission, such as face shields or N95 respirators.
  • Require patients to wear a cloth face covering or facemask. Where available, require patients to wear a facemask, or a cloth face covering, for the entire duration they are in the facility.
  • Retrain staff on appropriate selection and use of PPE. Ensure staff are trained in and have practiced the appropriate use of PPE, as well as measures to prevent contamination of clothing, skin, and the environment during removal of such equipment.
  • Conserve PPE. Due to ongoing supply issues with PPE, facilities should make every effort to conserve PPE consistent with recommendations by CDC on PPE supply optimization.


  • Screen staff daily for symptoms or potential exposure. Staff should be screened daily for symptoms or high-risk activities or contact that could jeopardize the safety of co-workers and patients. Use the CDC’s risk assessment guide to assist with assessing risk and work restriction decisions for healthcare providers with potential COVID-19 exposure. Employers can implement employee screening protocols consistent with the guidance published by the EEOC.
  • Prioritize testing for healthcare providers. Staff with suspected COVID-19 should be prioritized for testing to ensure timely disease mitigation and minimize unnecessary restrictions. However, it is important to remain mindful of HIPAA issues regarding disclosures to employers (see Holland and Hart’s guidance on this topic).
  • Implement return to work requirements. Utilize the CDC’s return to work criteria for confirmed or suspected COVID-19 illness, which may include testing or work exclusion requirements.
  • Implement or modify existing sick leave policies. Ensure sick leave policies are flexible and non-punitive for staff to ensure compliance with public health guidance related to self-isolation.
  • Reduce staff volumes in the facility. Consistent with reducing patient volumes, reducing staff volumes will also minimize interpersonal contact and optimize social distancing measures within the facility. Evaluate whether staff may be able to work from home or conduct telehealth visits in non-patient care areas, or consider reduced schedules, if appropriate.
  • Other considerations for employers. See Holland and Hart’s guidance for employers during the re-opening phase.


  • Develop a plan for staffing shortages. Be prepared for illness- or exposure-related staffing shortages and have a plan in place for responding to such situations. This may include considering whether it may be appropriate to waive certain return to work criteria. Consider the CDC’s recommendations for mitigating staff shortages.
  • Ensure adequate equipment, medications, and supplies for operations. While facilities must ensure they have a sufficient stock of PPE and other supplies necessary for operations, the acquisition of these items should not be to the detriment of those healthcare providers responding to and treating COVID-19 patients or impact the community’s ability to respond to a potential surge.
  • Adjust insurance coverages, if necessary. Healthcare providers may have adjusted professional liability insurance coverage during the temporary cessation of operations. Be sure to make any necessary adjustments to ensure appropriate coverage, including additional coverage or risk management.
  • Update billing and coding procedures. COVID-19 introduced a host of new coding and billing guidelines, including introduction of new codes for COVID-19-related treatment and telehealth. Make sure billing and coding staff are up to speed.
  • Review existing contracts. With changing schedules and expectations, now is the time to review and possibly modify existing employment or contractor agreements to address things such as adjusted hours and compensation. It also may be necessary to reevaluate contracts with vendors and suppliers to ensure they are implementing appropriate COVID-19 safeguards in the performance of their services.
  • Maintain documentation related to COVID-19 relief funds. Facilities that have accepted COVID-19 stimulus funds must comply with Department of Health and Human Services terms and conditions. Therefore, it is important to maintain documentation related to the allocation of those funds to support claims, particularly in the event of an audit.
  • Monitor status of federal and local regulatory waivers. Throughout the COVID-19 pandemic, regulators have modified or waived regulations to allow healthcare providers to respond to immediate patient needs. Many of these waivers are effective only during the public health emergency, while others may sunset at earlier or later times. Before relying on a regulatory waiver, confirm whether that waiver is still in effect.

Finally, consult with industry groups that may have specific recommendations for the type of healthcare operations at a particular facility. These may include the following:

For questions regarding this update, please contact:
Lisa Carlson
Holland & Hart, 800 W. Main Street, Suite 1750, Boise, ID 83702
Email: LCarlson@hollandhart.com Phone: (208) 383-3910

We encourage you to visit Holland & Hart’s Coronavirus Resource Site, a consolidated informational resource offering practical guidelines and proactive solutions to help companies protect their business interests and their workforce. The dynamic Resource Site is regularly refreshed with new topics and updates as the COVID-19 outbreak and the legal and regulatory responses continue to evolve. Sign up to receive updates and for upcoming webinars.

This publication is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal or financial advice nor do they necessarily reflect the views of Holland & Hart LLP or any of its attorneys other than the author. This publication is not intended to create an attorney-client relationship between you and Holland & Hart LLP. Substantive changes in the law subsequent to the date of this publication might affect the analysis or commentary. Similarly, the analysis may differ depending on the jurisdiction or circumstances. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


Unless you are a current client of Holland & Hart LLP, please do not send any confidential information by email. If you are not a current client and send an email to an individual at Holland & Hart LLP, you acknowledge that we have no obligation to maintain the confidentiality of any information you submit to us, unless we have already agreed to represent you or we later agree to do so. Thus, we may represent a party adverse to you, even if the information you submit to us could be used against you in a matter, and even if you submitted it in a good faith effort to retain us.