Ice Miller LLP: Insights

Indiana State Department of Health Issues Third Emergency Order Granting Temporary Blanket Waivers for Hospitals

On March 27, 2020, the Indiana State Department of Health ("ISDH") issued a third emergency order (the "Order") granting certain temporary blanket waivers for Indiana hospitals that have declared a COVID-19 facility emergency and have notified the ISDH of the declaration. These declarations need not be formal in nature and may be sent to the following ISDH officials: Randall Snyder at RSynder@isdh.IN.gov; John Lee at JLee@isdh.IN.gov or Jennifer Hembree at Jhembree@isdh.IN.gov. The waivers are in effect retroactive to March 6, 2020 and will remain in effect until the earliest of (i) the expiration of the Governor's Declaration of Public Health Emergency issued on March 6, 2020 (the "Declaration"); (ii) revocation of the Order or (iii) expiration of the Order or any extensions to the Order, plus such additional time as the ISDH deems necessary to enable an orderly transition by facilities back to compliance with the rules that are waived under the Order.

The following conditions apply to all waivers involving remodels, renovations, conversions, repurposing, additions or other physical or structural changes granted under the Order: (i) within three days after the remodel or other change being made, the facility must notify the ISDH of the change, supply drawings (blueprints are NOT required) and narrative sufficient to show and describe the changes that have or will be made; (ii) if the changes are not intended to be permanent, the facility must roll back the change within 45 days after the expiration or withdrawal of the Declaration and notify the ISDH as soon as the rollback is completed; and (iii) if the change is to be permanent, the facility must submit a request for permanent approval to the ISDH Health Care Engineering program within 45 days after the expiration or withdrawal of the Declaration.

The following changes in the hospital licensure rules are in effect based on these waivers:

The requirements for hospital infection control committees to meet quarterly, document work of corrective actions, review employee exposure incidents and to review and recommend changes to the hospital's isolation system procedures, policies and programs are suspended;
A hospital's infection control committee's responsibility for a policy on the reuse of disposables is waived with regard to personal protective equipment only;
For those nurses and other hospital personnel having annual competency certification renewal dates that fall during a hospital-declared emergency, the certification renewals may be delayed for up to 90 days following the end of the emergency;
The need for the medical staff to approve policies concerning the appropriate refrigeration and holding length for bodies is suspended;
Medical records may be authenticated post-hoc and there are no time requirements for such authentication;
The results of an inpatient's history and physical examination must be documented in the medical record as "soon as practicable under the circumstances;"
Discharge summaries and short stay record forms may be authenticated by the physician or by other advanced practice providers who are credentialed by the medical staff to do so;
The medical staff may extend a physician's hospital privileges for up to 90 days after a hospital-declared emergency ends if the physician's privileges are set to expire during the emergency;
Verbal orders are required to be authenticated within seven days instead of 48 hours;
The ISDH clarifies that it does not consider COVID-19 deaths to be "unusual" for purposes of securing autopsies in cases of unusual deaths;
Hospitals may waive monthly pharmacy inspections for those areas in which drugs and biologics are stored for the first 90 days of a hospital-declared emergency or until the emergency ends, whichever is sooner. If the emergency extends past 90 days, inspections must occur at least every 60 days until the emergency ends;
Approved mobile and temporary structures that are on or adjacent to hospital premises do not have to meet state fire and building codes and may have an emergency power system with one branch that serves all essential loads;
Temporary changes of use or surge facilities are not required to meet the national Guidelines for Construction and Equipment of Hospital and Medical Facilities (the "Guidelines");
Renovations or replacement work in existing facilities need not meet the Guidelines or relevant portions of the National Fire Protection Association guidance;
It is not necessary to seek site surveys for temporary structures on or adjacent to hospital premises;
License applications and documentation submissions to the state building commissioner for "temporary surge capacity" construction, renovations and additions are not required;
Compliance with the Guidelines for construction renovation and additions for outpatient, rehabilitation and psychiatric facilities and mobile, transportable and relocatable units are waived for temporary structures on or adjacent to hospital premises;
Mechanical equipment is to be maintained as necessary and with appropriate frequency to ensure provision of services to patients (instead of on a documented schedule in accordance with the manufacturer's recommended maintenance schedule);
Annual inspections, testing and/or calibration of services that use ionizing radiation that fall during the hospital-declared emergency period may be suspended for up to 90 days after the emergency ends; and
Space in inpatient rehabilitation units may be used in alignment with the CMS 1135 waiver of "distinct part" requirements.

To view the complete list of waivers and information on those hospital licensure rules specifically not waived by the ISDH, please go to https://coronavirus.in.gov/2499.htm under "Hospitals" or contact Taryn Stone at Taryn.Stone@icemiller.com or Margaret Emmert at Margaret.Emmert@icemiller.com.

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.