CMS Recommendations in Response to President Trump’s Opening Up America Again Guidelines 

April 21, 2020

The Centers for Medicare & Medicaid Services (“CMS”) issued new recommendations , which update CMS’ previous guidance pertaining to non-essential surgeries and medical procedures, in response to President Trump’s Opening Up America Again Guidelines announced on April 16, 2020. 
How do President Trump’s Opening Up America Again Guidelines impact elective surgeries and procedures?

Per President Trump’s Opening Up America Again Guidelines, if states or regions satisfy certain Gating Criteria (symptoms, cases, and hospitals) , then they may proceed to “Phase I.” Included in “Phase I” is the provision that elective surgeries can resume, as clinically appropriate, on an outpatient basis at facilities that adhere to CMS guidelines. Notwithstanding the new CMS recommendations, health care facilities should be prepared to cease non-essential procedures if there is a COVID-19 surge.

Can a heath facility still utilize telehealth?

Yes, CMS strongly encourages the maximum use of all telehealth modalities. However, non-COVID-19 care that cannot be accomplished virtually, may be offered to patients as clinically appropriate and within the state, locality, or facility that has the resources to provide care and the ability to quickly respond to a potential surge in COVID-19 cases. 

For which patients can a health care system re-start necessary care?

CMS provides health care systems or clinicians the flexibility to re-start clinically necessary care for patients with non-COVID-19 needs or complex chronic disease management requirements.

What considerations should be considered when re-starting clinically necessary care?

Re-starting clinically necessary care should be done in accordance with the following considerations:

General Considerations

  • Facilities should coordinate with State and local public health officials to evaluate the incidence and trends for COVID-19 in the area where re-starting in-person care is considered.

  • Facilities should evaluate the necessity of care based on clinical needs. While surgical/procedural care and high-complexity chronic disease management should be prioritized, select preventative services may also be highly necessary.

  • Facilities must ensure the availability of sufficient resources across phases of care without jeopardizing surge capacity.

Personal Protective Equipment

  • Personal protective equipment must be conserved.

  • Healthcare providers and staff should wear surgical facemasks at all times. N95 masks and face shields should be utilized, as well. Procedures on the mucous membranes with a higher risk of aerosol transmission should be done with great caution.

  • Patients should wear a cloth face covering that can be bought or made at home.

Workforce Availability

  • Staff should routinely screen for symptoms of COVID-19. Persons who are symptomatic should be tested and quarantined. Staff working in non-COVID-19 care zones should not rotate into COVID-19 care zones.

  • Staffing levels must remain adequate to cover potential surges in COVID-19 cases
Facility Considerations

  • Facilities that make the decision to provide in-person, non-emergent care should create areas of non-COVID-19 care, with steps to reduce risk of COVID-19 exposure and transmission.

  • Administrative and engineering controls should be established to facilitate social distancing.

  • Visitors should be prohibited unless they are necessary for an aspect of patient care.

Sanitation Protocols

  • Facilities should establish a plan for thorough cleaning and disinfection prior to using spaces or facilities for patients with non-COVID-19 care needs.

  • Equipment used for COVID-19 (+) patients should be thoroughly decontaminated, following guidelines from the Centers for Disease Control and Prevention.


  • Facilities must ensure adequate supplies of equipment, medication and supplies. Such adequate supplies cannot detract from the community’s ability to respond to a potential COVID-19 surge.

Testing Capacity

  • Patients and staff in non-COVID-19 care facilities must be screened for symptoms of COVID-19.

  • Once an adequate testing capability is established, patients and staff should be screened by laboratory testing. 

Joshua M. Weaver
Phone: (214) 705-3516
Board Certified – Health Law
Texas Board of Legal Specialization
Steve Litke
Phone: (972) 427-7685
Ashley E. Johnston
Phone: (214) 763-8296
Board Certified – Health Law
Texas Board of Legal Specialization
Chris Reed
Phone: (214) 705-3935
Joseph E. Nelson
Phone: (214) 705-3907
Board Certified – Health Law
Texas Board of Legal Specialization
Rachael Nelson Gearing
Phone: (469) 680-9609
Kevin Mitchell
Phone: (469) 680-9049
Stephanie Toth
Phone: (469) 480-9729
Shannon Cahalan
Phone: (214) 938-9898
Paul Wehrmann
Phone: (214) 957-0919
Vicki Wanjura
Phone: (214) 587-6026
The material contained in this email alert is for informational purposes only. It is not intended to be legal advice nor is it intended to create and receipt does not establish an attorney-client relationship. Legal advice of any nature should be sought from legal counsel. The COVID-19 disaster, and the federal, state and local governmental response, is a fluid and rapidly involving situation, meaning the material contained herein may be subject to change.