On April 23, 2020, Illinois Governor JB Pritzker announced during his daily press conference that he would issue an executive order next week extending Illinois’ stay at home order through May 30, 2020.  While acknowledging that Illinois has made progress in slowing the spread of COVID-19 and has built up its hospital capacity and health care resources significantly in recent months, Governor Pritzker warned that lifting the stay at home order at this time would be detrimental to the health and safety of Illinois residents.  Governor Pritzker shared information during the press conference regarding peak projections from new modeling, which currently project a peak of COVID-19 cases in Illinois in late April to early May, and stressed that those projections are likely to change in the coming days.

Governor Pritzker also announced that the State of Illinois will implement a phased reopening plan and include the lifting of certain restrictions currently in place, including allowing retail providers to offer pick-up and delivery and reopening state parks for hiking, fishing, and boating.  Governor Pritzker also announced that the phased reopening plan will allow certain elective surgeries and procedures that have been delayed due to the pandemic to resume effective May 1, 2020.  In order to begin performing elective procedures, however, various criteria will need to be met, including minimum levels of personal protective equipment (“PPE”) and assurance that there is adequate ICU and bed availability in the event of a surge.  Governor Pritzker also announced that the Illinois Department of Public Health (“IDPH”) will issue new guidance related to resuming elective surgical procedures in the near future. 

IDPH’s current elective surgical procedure guidance recommends that all elective surgeries and procedures considered non-emergent or elective be cancelled during the pandemic and defines “electives” as procedures that are pre-planned by both the patient and physician and which are advantageous to the patient but not urgent or emergent.  IDPH currently recommends that physicians use their medical judgment to determine the need for surgery and that accommodations be made to allow for emergent procedures to continue.  IDPH’s current guidance on elective procedures is available here.  

While IDPH’s current guidance does not prohibit elective procedures, many health care providers and facilities have cancelled or postponed all elective procedures due to the concern or fear of overwhelming the health care system, need to preserve COVID-19 specific health care resources (such as PPE), and in order to retain the civil immunity protections announced in Executive Order 2020-19.  Executive Order 2020-19, issued April 1, 2020, grants civil immunity to health care facilities, health care professionals, and health care volunteers in relation to any injury or death alleged to have been caused by any act or omission while those facilities, professionals, and volunteers are engaged in the course of “rendering assistance” to the State of Illinois by providing health care services in response to COVID-19.  Executive Order 2020-19 requires that, specific to health care facilities, “rendering assistance” include cancelling or postponing elective surgeries and procedures as defined in IDPH’s elective procedure guidance.  A detailed summary of Executive Order 2020-19 is available here.

Governor Pritzker’s announcement comes on the heels of CMS’ April 19, 2020 updated recommendations for health care providers to resume the provision of care to patients without symptoms of COVID-19.  Under CMS’ updated recommendations, a facility may resume elective procedures if certain conditions are met, including, among others, that there has been a 14-day downward trajectory of reported influenza-like or COVID-like reported symptoms and documented cases in a particular region.  A detailed summary of CMS’ updated recommendations is available here.  CMS’ new recommendations update prior guidance issued by CMS on April 6, 2020 regarding limiting non-essential medical care, a summary of which is available here, and are a part of the larger Guidelines for Opening Up America Again released by the Administration on April 16, 2020.