CMS Issues Recommendations to Re-open Certain Non-Emergent Healthcare Facilities

The Centers for Medicare & Medicaid Services (“CMS”) recently issued recommendations to re-open certain healthcare facilities that have not been heavily impacted by COVID-19 to provide essential non-COVID-19-related care to patients without COVID-19 symptoms. By way of background, on March 18, 2020, CMS issued recommendations to postpone non-essential elective surgeries due to the COVID-19 pandemic. CMS issued the recommendations to postpone non-essential procedures due to the surge of patients entering healthcare facilities for COVID-19-related treatment. However, CMS acknowledged that there are currently certain areas in the U.S. with a low and stable incidence of COVID-19. Further, there are patients in these areas that need non-emergent healthcare Therefore, CMS is recommending re-opening certain healthcare facilities in areas with low COVID-19 incidence to provide non-emergent, non-COVID-19-related care to patients.


To be eligible to re-open, CMS’ recommendations require facilities to assess their region’s COVID-19 incidence level through certain criteria. The criteria, referred to as the Gating Criteria, was developed by the Trump Administration as a safeguard to ensure only those areas with low COVID-19 cases and/or incidence are part of the first phase to re-open the U.S. The Gating Criteria requires each facility assesses their region’s COVID-19 incidence, prior to re-opening, and that it meets the following:

  • Symptoms
    • Downward trajectory of influenza-like illness reported within a 14-day period; and
    • Downward trajectory of COVID-like syndromic case reported with a 14-day period
  • Cases
    • Downward trajectory of documented cases within a 14-day period; or
    • Downward trajectory of positive tests as a percent of total tests within a 14-day period
  • Hospitals
    • Treat all patients without crisis care; and
    • Robust testing program in place for at-risk healthcare workers, including emerging antibody testing

CMS recommends that facilities coordinate with State and local public health officials to fully evaluate their area’s COVID-19 incidence and trends. Further, upon re-opening, each facility should continually evaluate whether their region remains a low-risk area for COVID-19. Should the area no longer be deemed an area with low COVID-19 incidence, the facility should be prepared to cease any non-essential procedures immediately.


CMS recommends that facilities provide non-emergent healthcare based on the patient’s necessity of care. As such, facilities should assess the clinical needs of their non-COVID-19 patients and prioritize accordingly. Surgical/procedural patient care and high-complexity chronic disease management should be given priority over other care or treatment. However, CMS acknowledges that certain preventive care services may be highly necessary for patients as well.

Facilities must also maintain sufficient resources (e.g., workforce, facilities, supplies, PPE, etc.) to respond to any surge in COVID-19 patient cases that may arise in the region.

Each facility should work with an attorney to ensure compliance with state law and current executive orders.


Upon re-opening a non-emergent facility, all healthcare providers and staff at the facility should wear surgical masks at all times. Should any procedure be performed on a patient’s mucous membrane (including the respiratory tract), providers should take every precaution available to limit the risk of aerosol transmission of COVID-19. At minimum, staff should utilize appropriate PPE (e.g., N95 facemasks and face shields). CMS also recommends that all patients in a facility providing non-emergent, non-COVID-19-related care should wear a face mask or a cloth face covering while in the facility.

Further, each facility should comply with the CDC’s guidance regarding conservation and optimization of all personal protective equipment (PPE).


Facility staff working in non-emergent, non-COVID-19-related care zones should be limited to work in such areas. The staff should not enter or rotate into COVID-19 treatment zones within the facility. This includes restricting staff from making their rounds in a hospital and then entering a non-emergent, non-COVID-19 care facility or zone. Additionally, all facility staff should be routinely screened for COVID-19 symptoms. If symptomatic, the facility should test and quarantine the symptomatic staff.


Any facility that provides in-person, non-emergent care to patients during the COVID-19 pandemic should take every precaution to limit the risk of COVID-19 exposure and transmission. If possible, such facilities should offer non-emergent, non-COVID-19-related patient care in an area separate from other facilities to minimize crossover with COVID-19 testing and treatment areas. Such separation may be accomplished by providing non-emergent care in a separate building or in designated rooms/floors with a separate entrance.

Facilities should also maintain social distancing protocols to the greatest extent possible. For example, facilities should ensure that: (1) chairs in waiting areas are spaced at least six feet apart; (2) patient wait times in waiting areas are minimized; and (3) patient volume is maintained at a low level. Additionally, facilities should continue to prohibit visitors, unless they are necessary for some aspect of patient care. All visitors should be pre-screened for COVID-19 symptoms in the same manner as patients.


Facilities must establish and maintain sufficient protocols for cleaning and disinfecting facility spaces prior to use. Any equipment used to treat COVID-19 positive patients must also be thoroughly decontaminated pursuant to guidance issued by the Centers for Disease Control and Prevention (“CDC”). The CDC has also issued general facility sanitation guidance, including everyday steps to take to disinfect facilities. Facilities should review all CDC guidance related to sanitation when implementing sanitation protocols.


Facilities must continue to screen all patients and permitted visitors for COVID-19 symptoms prior to entering the facility. Each facility must also routinely screen its staff for COVID-19 symptoms. Non-emergent facilities should work to establish adequate testing capability to screen patients and staff with COVID-19 laboratory testing.

For more information regarding CMS’ recommendations to re-open non-emergent healthcare facilities in areas of low COVID-19 incidence, please contact your regular HLP attorney, or, or call (212) 734-0128 or (248) 996-8510.

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