September 29, 2020

Volume X, Number 273

September 29, 2020

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September 28, 2020

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This Is Not A Drill: Hospital And Health System Preparedness For COVID-19

As more cases emerge highlighting the transmission of COVID-19 from person-to-person contact in the general public rather than through contact with a known infected individual, hospitals and health systems must be ready to move from emergency preparedness tabletop drills to the real thing. We provide a list of recommendations and resources for hospitals and health systems as they marshal their resources to address COVID-19 from the front lines.


As more cases emerge highlighting the transmission of COVID-19 from person-to-person contact in the general public rather than through contact with a known infected individual, hospitals and health systems must be ready to move from emergency preparedness tabletop drills to the real thing. If projections are correct, COVID-19 infections will soon be a fact of life across the United States.

A few reminders and suggestions for hospitals and health systems as they marshal their resources:

  • Take those emergency preparedness plans, policies and procedures off the shelf. Since 2017, the Centers for Medicare and Medicaid Services (CMS) has required Medicare and Medicaid enrolled providers and suppliers, including hospitals, to develop, update and drill on emergency preparedness measures. Providers should focus on assessing “all hazards” to determine the processes necessary to meet the health, safety and security needs of the facility, staff, patients and the general community (see Appendix Z of the CMS State Operations Manual for details). The Joint Commission and other accrediting organizations have similar requirements.

    • In 2019, CMS expanded the guidance for assessing “all hazards” to include emerging infectious diseases in addition to other emergencies and disasters. If hospitals have failed to fully evaluate emerging infectious disease as part of “all hazards,” now is the time to ensure that plans clearly document the management of such hazards.

    • If a hospital has not undertaken tabletop drills or other preparatory activities, now is the time to do so, to better understand gaps and vulnerabilities, and plan how to address them.

  • Hospitals should closely track current guidance on COVID-19. Centers for Disease Control and Prevention (CDC) guidance is updated as the agency learns more about the virus and its spread, and provides additional preparedness resources, including checklists and tools specific to hospitals and healthcare professionals. State health departments may have similar guidance with state-specific information.

  • Regardless of size, hospitals must be prepared to screen, stabilize and treat, or appropriately transfer patients who present with symptoms and a history that suggest potential COVID-19 infection. The Emergency Medical Treatment and Labor Act (EMTALA) continues to apply to all Medicare-participating hospitals with emergency departments.

  • Hospitals and other healthcare providers should immediately notify their local or state health department upon identification of a “person under investigation” for infection with COVID-19. As of the date of this publication, local or state health departments must give approval before facilities and providers may submit samples for testing and confirmation.

  • Section 1135 waivers are not yet an option for facilities caring for patients infected with or suspected of having COVID-19, because as of the date of this publication, the president has not declared a disaster or emergency under the Stafford Act or National Emergencies Act. While the US Department of Health and Human Services has declared a public health emergency in relation to COVID-19, a presidential declaration must also be in place for Section 1135 waivers to be implemented. The CMS Conditions of Participation for Hospitals (COPs), EMTALA and other operating requirements thus remain firmly in place for Medicare-participating hospitals.

    • Facilities facing challenges complying with COPs and other requirements can request accommodations from CMS, and should communicate with their state department of health and CMS regional office to discuss their specific facts and any requested accommodations.

    • If a Section 1135 waiver is authorized, the process for taking advantage of the waiver will likely include submission of requests to the state department of health or CMS regional office, with information on the specific facts that require reliance on the waiver. Based on prior waiver events, CMS and/or the state department of health will review the request and decide on a case-by-case basis whether the provider may operate under the waiver.

    • Waivers and any other accommodations are typically approved on a time-and-circumstances-limited basis, and only to the extent that the provider has been affected by the emergency. This means that hospitals and other providers not directly affected by the emergency will not be eligible to operate under the waiver unless it is a “blanket” waiver applicable to all providers in an identified area.

COVID-19 may also have employment-related effects on hospitals and health systems. Consider exposure plans, staff testing requirements and occupational health needs, and identification of essential and backup staff.

© 2020 McDermott Will & EmeryNational Law Review, Volume X, Number 62


About this Author

Sandra DiVarco Healthcare Attorney Health Systems Lawyer McDermott Will Emery Law Firm

Sandra DiVarco is a partner in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Chicago office. Sandy focuses her practice on the representation of hospitals and health systems. She has counseled health care facility and system clients regarding all aspects of health law transactions and health system restructurings. As a registered nurse, Sandy regularly advises clients on the legal aspects of clinical issues and policy/procedure matters. Sandy also has significant experience in assisting clients with...

Gregory E. Fosheim Associate Chicago Healthcare  Healthcare Mergers & Acquisitions  Healthcare Regulatory & Compliance  Cannabis Industry

Gregory E. Fosheim advises healthcare and life sciences clients across a variety of corporate, transactional and regulatory compliance matters. Working with hospitals, physician practice groups, clinical research programs, pharmaceutical companies, device manufacturers and others, Greg provides counsel on healthcare fraud and abuse risks, Medicare, Medicaid, and private payor billing, and clinical research and laboratory compliance in connection with federal grants, among other issues. Greg also provides regulatory due diligence support on healthcare transactions and collaborations, helping his clients drive innovation and expand their businesses.

He is also a member of our legal cannabis industry group. Our Cannabis Industry group is a multidisciplinary team of lawyers providing clients with regulatory, litigation, intellectual property, trade and tax services with respect to their investments and participation in the cannabis industry, all subject to the Firm’s obligations under federal and state laws and bar licensure rules.