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Volume XI, Number 175

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How to Handle Elective Surgeries and Procedures During the COVID-19 Pandemic

Government officials and hospital, medical and dental associations have issued guidance and statements regarding whether to continue performing elective surgeries in light of the Coronavirus (COVID-19) pandemic. Some authorities have recommended ceasing all elective surgeries until the transmission of COVID-19 has slowed. Others believe that the decision should be made on a case-by-case basis, taking into account a patient’s prognosis without the procedure.

IN DEPTH


Timeline of Recommendations Regarding Elective Surgeries and Procedures

On March 1, 2020, the Centers for Disease Control and Prevention (CDC) issued Interim Guidance for Healthcare Facilities: Preparing for Community Transmission of COVID-19 in the United States. The CDC recommended that inpatient facilities reschedule elective surgeries as necessary and shift elective urgent inpatient diagnostic and surgical procedures to outpatient settings, when feasible.

On March 13, 2020, the American College of Surgeons (ACS) released COVID-19: Recommendations for Management of Elective Surgical Procedures, and recommended minimizing, postponing or canceling electively scheduled surgeries and invasive procedures. ACS stated: “Each hospital, health system, and surgeon should thoughtfully review all scheduled elective procedures with a plan to minimize, postpone, or cancel electively scheduled operations, endoscopies, or other invasive procedures until we have passed the predicted inflection point in the exposure graph and can be confident that our health care infrastructure can support a potentially rapid and overwhelming uptick in critical patient care needs.”

On March 14, 2020, US Surgeon General Jerome Adams, MD, retweeted ACS’s guidance, urging hospital and healthcare systems to “please consider stopping elective procedures until we can” flatten the curve. The surgeon general explained that each elective surgery performed potentially brings COVID-19 to these facilities, depletes personal protective equipment (e.g., gloves, masks, goggles, gowns) stock, and taxes personnel who may be needed for COVID-19 response.

On March 15, 2020, in response to these recommendations, the American Hospital Association, Association of American Medical Colleges, Children’s Hospital Association and Federation of American Hospitals sent a letter to the surgeon general requesting that he clarify his comments by recognizing the gradients of elective surgeries and offering guidance on how to classify the various levels of necessary care. The associations explained that “elective” simply means that “a procedure is scheduled rather than a response to an emergency,” and could therefore include, for example, replacement of a faulty heart valve, removal of a serious cancerous tumor or a pediatric hernia repair. The associations stated that the delay or cancellation of these procedures often rapidly worsens the patient’s condition, potentially turning it into a life-threatening condition and making the patient more vulnerable to COVID-19. The associations recommended that physicians determine what is in the patient’s best interest and make a case-by-case evaluation of many factors, such as the current and projected COVID-19 cases in the facility and in the surrounding area, and the urgency of the procedure.

On March 16, 2020:

  • The Ambulatory Surgery Center Association released a position statement regarding its stance on elective surgeries during the COVID-19 pandemic in which it stated that “ASCs can continue to provide safe surgical care for patients whose condition cannot wait until the health care system returns to normal operations.”
  • The American Dental Association issued a news alert recommending that dentists nationwide postpone elective procedures for the next three weeks.
  • The American Academy of Ophthalmology issued a news alert supporting ACS’s recommendation to minimize, postpone or cancel elective surgeries while recognizing that the timing may vary by community and disease indication.

In a March 17, 2020, White House Coronavirus Task Force press briefing, White House COVID-19 response coordinator Dr. Deborah Birx recommended that hospitals and dentists cancel all elective surgeries over the next two weeks in order to free up hospital beds and space. The task force has stated that its recommendations are not mandatory.

Hospital and Local Leader Response

In light of these recommendations, several hospitals and health systems have announced that they will postpone elective surgeries and procedures, although the timeframes for postponement vary. Other hospitals are making decisions on a case-by-case basis.

On March 16, 2020, New York Mayor Bill De Blasio signed an executive order that directed all hospitals and ambulatory surgery centers in New York City to cancel or postpone all elective surgeries that may be cancelled or postponed based on patient risk starting March 20, 2020. The goal is to make additional hospital beds available so that the health system is not overwhelmed during a potential spike in COVID-19 cases, while also limiting exposure of healthy individuals to COVID-19.

On March 17, 2020, Director of the Ohio Department of Health, Amy Acton, issued a director’s order stating that all non-essential or elective surgeries and procedures that utilize PPE should not be conducted. Acton defined a non-essential surgery as a procedure that can be delayed without undue risk to the current or future health of a patient.

Considerations

Elective surgeries and procedures may make up a significant percentage of a hospital or health system’s revenue. Postponing these procedures will undoubtedly have financial ramifications for these institutions. In addition to loss of revenues, hospitals and health systems will face increased costs during the COVID-19 pandemic due to increased paid sick leave and paid time off for their employees, among other extraordinary expenses. Hospitals treating patients with COVID-19 face uncertain reimbursement. Further, it is unclear when cancelled surgeries could be rescheduled, because the United States is still working to flatten the curve of the pandemic. We do not yet know when the curve will begin to flatten, reflecting containment of the virus. It is imperative that hospitals can continue to operate and maintain sufficient capacity to treat patients when we reach the apex of the curve. Hospitals are thus in an extremely challenging position.

Cancelled elective surgeries may also impact participation in payment models sponsored by Medicare and other payors, which may cause further financial stress. Hundreds of institutions across the country participate in inpatient episode of care models like the Comprehensive Care for Joint Replacement Model or the Advanced Bundled Payments for Care Improvement Model. These episode-based payment models reward institutions for maintaining costs below set target prices and maintaining or improving quality of care. Disruptions in a participant’s ability to provide these services or changes to the typical resources needed to provide these services may impact not only performance in the current model year but may also impact future years due to the use of historical claims data to set target prices for episodes in future years.

As hospitals and health systems find themselves in the epicenter of the COVID-19 crisis, they may simultaneously find themselves in a challenging fiscal situation with continued uncertainty ahead. As law and policy makers seek to provide economic and regulatory relief to affected industries, it will be important for hospitals to document the impact of COVID-19 on their operations and their bottom line, and to communicate this information and any needed regulatory relief to their elected officials, their trade and professional associations, and their government relations advisors. Ensuring that hospitals can continue to robustly operate is essential to the United States and its effective pandemic response.

Shelia Madhani of McDermott+Consulting also contributed to this On the Subject.

© 2021 McDermott Will & EmeryNational Law Review, Volume X, Number 79
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About this Author

Karen Sealander, Partner, McDermott Law FIrm
Partner

Karen S. Sealander is a Partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, D.C. office.   A member of the Firm’s Government Strategies practice, Karen focuses her practice exclusively in the health sector  Karen has more than two decades of experience representing and counseling health care providers, health insurance plans, integrated health care delivery systems, professional associations of health care providers and others in the health sector on legislative, regulatory and legal matters.  She worked extensively on the Patient Protection and...

202 756 8024
Marika Miller Health Care Attorney McDermott
Associate

Marika Miller provides regulatory compliance counsel to hospitals, health systems, and other healthcare organizations across the full spectrum of operational legal matters, ranging from Medicare and Medicaid reimbursement and medical staff bylaws to transaction agreement reviews and tax exemption issues. She is particularly focused on healthcare fraud and abuse law, analyzing physician group acquisitions and other complex arrangements for Stark Law and Anti-Kickback Statute implications.

Prior to joining McDermott, Marika served as a legal fellow for a Chicago-area hospital. While...

312 984 6977
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