As health care providers prepare for an increase in patients infected or who suspect they are infected with the 2019 novel coronavirus (COVID-19), providers have many considerations to ensure they maintain regulatory requirements. This article addresses planning, governmental announcements, staffing, operational, reimbursement and coverage challenges that providers may face as they prepare for and tackle the difficulties posed by COVID-19.

Planning

In preparing for COVID-19, all health care providers should review and update their disaster preparedness plans to implement the new CMS guidance. A communication and reporting plan should be put in place if COVID-19 is suspected or found in the facility and staff should be trained on how to appropriately respond.

The Centers for Disease Control and Prevention (CDC) has issued guidance for hospitals to craft preparedness and response plans. This guidance includes recommendations for training staff, being equipped to prevent the spread of COVID-19 within the facility, identifying and isolating patients who have been exposed or who possibly have the virus, providing care for infected patients, and preparing for a large number of patients in the context of an escalating outbreak. Hospitals and health systems should review and revise their preparedness and response plans to be consistent with the CDC’s guidance.

In addition, the Joint Commission has alerted all of its accredited hospitals to prepare for possible patients infected by COVID-19. The Joint Commission’s standards require health care organizations to have plans in place for a surge of infectious patients. In light of what the World Health Organization has declared a pandemic, the Joint Commission is recommending “drills” to test procedures for responding to an influx of infectious patients. All health care providers – even those not accredited by the Joint Commission — should conduct practice drills of emergency procedures.

Governmental Announcements

Stay apprised of announcements from the federal government, your state government(s) and your local (e.g., county or city) officials. This may include new decisions (e.g., a state of emergency) or reinforcement of existing protocols (e.g., HIPAA Privacy Rule requirements for sharing information with a county health department) or guidance documents to help explain the current situation (e.g., CMS’ recent guidance regarding obligations under the Emergency Medical Treatment and Labor Act). Keep your staff regularly apprised and ensure clear communications.   

Staffing

Health care providers have obligations to their employees as well as their patients. Providers of all sizes need to create staffing plans to effectively staff necessary health personnel in the case of a public health emergency. Employers should review minimum staffing requirements and consider if these requirements would be waived during a crisis.  

Providers should also ensure they have sufficient personal protective equipment to protect staff against potentially contracting COVID-19. Policies and procedures are critical to allow staff to know whom to report to if they believe they have been exposed and what the appropriate next steps are, including isolation, self-quarantine and patient notification.

Operations

Health care providers need to evaluate their operational capabilities to address patient demands as COVID-19 spreads.  Operational concerns include considering the following:

• Current visitation restrictions for patients;
• If a provider can operate in excess of their licensed bed count;
• If the facility would be able to use beds licensed for other categories of services for COVID-19 patients, e.g., treating medical/surgery patients in OB licensed beds;
• If the facility can treat patients outside their normal licensed scope of services, e.g., treating patients in a surgery center or nursing home that would otherwise require hospitalization;
• If a hospital wants to set-up a “camp” hospital, could they do so and be reimbursed for services provided at that alternate location;
• Ensuring providers and staff have appropriate resources and supplies (e.g., masks, goggles, gloves) and infectious disease controls in place; and
• Whether elective surgeries will be scheduled.   

If any of the above operational changes are implemented, staff would need to be trained and policies put in place to appropriately carry out these changes.

Reimbursement

Understand what the patient’s payor will and will not pay for or has agreed to waive. This is a stressful time for patients and providers. Be aware of appropriate and compliant telemedicine options. Billing disputes with a patient and/or a payor may become exacerbated as long as this health care crisis continues.  

Insurance Coverage

Finally, malpractice insurance coverage is a key consideration. Providers may be increasing their risk of malpractice liability by stepping up to address this crisis, but while acting outside normal regulatory requirements. A thorough review of a provider’s insurance policy can help determine coverage under emergency circumstances. Insurance policies should also be reviewed to determine if a health care provider employer has adequate coverage should an employee become ill (or worse) due to an alleged workplace exposure.

Conclusion

Providers are literally on the front line during this COVID-19 pandemic. As a society and in each of our communities, our providers are the strength and backbone of the health care delivery system. The Hippocratic Oath remains important today:  I swear to fulfill, to the best of my ability and judgment, this covenant: I will respect the hard-won scientific gains of those physicians in whose steps I walk, and gladly share such knowledge as is mine with those who are to follow.

Thank you for your efforts to keep our communities safe and in good health now and always.        

Health care providers need to be actively engaged in planning for and adapting to the challenges posed by COVID-19. Saul Ewing Arnstein & Lehr attorneys are experienced in counseling health care providers with regulatory compliance and can assist providers with tackling the challenges posed by COVID-19.