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March 19, 2020

HHS guidance urges providers to delay all non-essential procedures

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    The Trump administration on Wednesday issued guidance urging providers to delay all non-essential dental, medical, and surgical procedures to conserve medical supplies needed to treat patients with COVID-19, the disease cause by the new coronavirus.

    CMS released the new guidance as President Trump took other steps to address the coronavirus outbreak in the United States, including issuing an executive order to ramp up production and distribution of needed medical supplies and signing legislation (HR 6201) intended to help Americans cope with the global pandemic's effects.

    About the epidemic

    Reports of COVID-19 first surfaced in early December 2019 in Wuhan, China.

    The United States saw its first COVID-19 case in late January, and cases have spiked since then. As of Thursday morning, state and federal officials had reported 10,201 cases of COVID-19—up from 5,881 reported cases on Wednesday. Officials as of Thursday morning also had reported 149 deaths linked to the new coronavirus in the United States, up from 107 on Wednesday.

    State and local officials say it's likely the actual number of Americans with COVID-19 is drastically higher than what's been reported so far, noting that testing kits for the new coronavirus had been scarce in the United States. As more tests become available, it's likely the number of Americans with reported, confirmed cases of COVID-19 will continue to rise significantly.

    CMS recommends providers delay non-essential procedures

    As U.S. providers are working to handle an influx of patients due to the COVID-19 pandemic, many have reported shortages of supplies needed to protect workers and patients from contracting the new coronavirus, such as N95 face masks, as well as shortages of supplies needed to treat infected patients, such as ventilators. To help address the issue, some hospitals and health systems have voluntarily begun delaying non-urgent and elective procedures.

    On Wednesday, CMS issued guidance recommending that all providers and Americans delay all non-essential dental, medical, and surgical procedures to conserve needed medical supplies. CMS Administration Seema Verma during a White House press briefing said delaying non-essential procedures "will not only preserve equipment but it also allows doctors and nurses to help those that are on the front lines, and it will protect patients from necessary exposure to the virus."

    However, CMS stopped short of mandating the delays. Verma said, "We believe that these recommendations will help surgeons, patients, and hospitals prioritize what is essential, while leaving the ultimate decision in the hands of state and local health officials and those clinicians who have direct responsibility to their patients."

    During the briefing, Vice President Pence said HHS also would issue a regulation allowing "all doctors and medical professionals to practice across state lines to meet the needs of hospitals that may arise in adjoining areas."

    Trump issues executive order invoking powers to increase medical supply manufacturing

    In addition, Trump on Wednesday issued an executive order invoking his powers under the Defense Production Act (DPA), which permits the president to order manufacturing expansions of products or materials needed for the country to respond to a crises—in this instance, medical supplies such as face masks and ventilators.

    The executive order states that HHS will have the authority "to promote the national defense over performance of any other contracts or orders, to allocate materials, services, and facilities as deemed necessary or appropriate." HHS under the order also will have the power to determine "the proper nationwide priorities and allocation of all health and medical resources, including controlling the distribution of such materials."

    According to David Ault, a lawyer at Faegre Drinker Biddle & Reath LLP who has worked at HHS, the department under the order could require manufacturers that make products the government needs for its COVID-19 response to accept federal contracts to produce the items and to prioritize those contracts before fulfilling other agreements.

    Trump during the press briefing said the powers granted under DPA "can do a lot of good things, if we need it." He said, "We have targets for certain pieces of equipment. We have targets for masks. ... We need respirators. We need ventilators."

    However, Trump in a tweet posted later on Wednesday wrote that he intends to use the DPA powers only "in a worst case scenario in the future," adding, "Hopefully there will be no need."

    HHS Secretary Alex Azar in a statement said, "We are coordinating closely with private suppliers, health-care purchasers, and our federal partners like the [Department of Commerce] to ensure that resources are going where they're needed."

    Trump signs coronavirus relief package mandating paid sick leave, no-cost testing

    Trump on Wednesday also signed into law an estimated $104-billion-dollar relief package that Congress approved this week to provide aid to Americans grappling with the COVID-19 pandemic's effects.

    The new law, called the Families First Coronavirus Response Act, mandates that all government agencies and businesses with 500 workers or less temporarily provide two weeks of fully paid sick and family leave to workers who are quarantined because of COVID-19; must care for family members who have COVID-19; or who must care for children whose day-care centers or schools have closed. Affected businesses also would have to provide an additional 10 weeks of leave paid at two-thirds of a worker's pay to employees who must stay home to care for their children because of day care and school closures. Under the law, the federal government will reimburse affected businesses via tax credits.

    In addition, the new law aims to provide no-cost testing for COVID-19 for all Americans by requiring that private health insurers, Medicare, and Medicaid cover all testing costs for enrollees. The law also provides the National Disaster Medical System with $1 billion to cover testing costs for uninsured Americans.

    In addition, the law provides federal funding to cover expanded unemployment insurance benefits in certain states that choose to extend the benefits beyond the typical six-month time limit and cover workers whose hours are reduced because of the pandemic. Further, the law increases federal funding for Medicaid and certain food security programs.

    According to Axios, the new law was considered the second step in Congress' three-step legislative plan to address the effects of the pandemic in the United States. Federal lawmakers and the Trump administration currently are negotiating "phase three" of the plan, which centers on the administration's proposed $1 trillion economic stimulus package. Trump also has asked Congress to allocate nearly $46 billion in emergency funding to help with federal efforts to combat the pandemic.

    Separately, Trump on Wednesday announced that the Department of Housing and Urban Development will suspend evictions and foreclosures related to the approximately 8.1 million mortgages insured by the Federal Housing Administration through the end of April. In addition, the Federal Housing Finance Agency directed Fannie Mae and Freddie Mac, companies that have helped finance about 50% of the $11 trillion mortgage market in the United States, to halt evictions and foreclosures for single-family mortgages for a minimum of 60 days (Weixel, The Hill, 3/18; Wingrove/Stein, Bloomberg, 3/18; Chalfant, The Hill, 3/18; Bloomberg News, 3/18; New York Times, 3/19; Smith et al., New York Times, 3/19; Kilff et al., New York Times, 3/18; Rowland, Washington Post, 3/18; Brady, Modern Healthcare, 3/18; White House Press Briefing remarks, 3/18; Ward, Vox, 3/18; Treene, Axios, 3/18; Hughes et al., Wall Street Journal, 3/18; Carney, The Hill, 3/18; Sullivan, Reuters, 3/18; Taylor, Associated Press, 3/18; Mason/Shepardson, Reuters, 3/18; O'Donnell, Politico, 3/18).

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