Member Q&A: Am I an “Essential Business”?

Published in Member Communities on March 25, 2020

Answer: On March 19th, the Department of Homeland Security and the Cybersecurity and Infrastructure Security Agency (CISA) issued guidance at a Federal level regarding which business types are considered essential. It is important to note that in that memo, they clarify that “We recognize that State, local, tribal, and territorial governments are ultimately in charge of implementing and executing response activities in communities under their jurisdiction, while the Federal Government is in a supporting role… Accordingly, this list is advisory in nature. It is not, nor should it be considered to be, a federal directive or standard in and of itself.” Because of this, we strongly recommend that you contact, and stay in contact with, your LOCAL public health officials regarding which businesses are considered essential from their perspective.

The memo goes on to list roughly 14 broad categories of essential industries, and one of those categories is healthcare/public health. Within that category, it goes on to list several specific personnel and business types. For the DMEPOS industry, while the guidance does not specifically include the words durable medical equipment provider or orthotic/prosthetic practitioner, it does list:

Distributors of medical equipment, PPE, medical gases
Manufacturers
Caregivers
Hospital and lab personnel/other medical facilities
Warehouse operators
Pharmacies

We know of several instances where DMEPOS suppliers have reached out to their state or city officials who have issued lockdowns or shelter-in-place orders, and we don’t know of any who have categorized a DMEPOS supplier as non-essential and asked them to fully close or cease operations. In every instance we are aware of right now, DMEPOS providers have been categorized as essential and may continue to operate, though it may make sense for them to change or scale back their operations temporarily, prioritizing what has to be done now and what can wait.

Based on the information above, VGM feels comfortable stating that you, the companies who provide DMEPOS related products and services, are indeed essential during this COVID-19 pandemic. We would encourage you to have your employees carry their employment badges with them if they are out in the community throughout the day, or perhaps a letter from you, the employer, explaining why they are required to be out during a lockdown or shelter-in-place order.

VGM also reached out to Jeff Baird at Brown and Fortunato, who summarized this topic concisely with the following statement: “Federal, state and local governments are defining “Essential Services,” “Essential Personnel” and “Health Care” very broadly. The CISA memo is a good place to look for guidance and appears to have been utilized in executive orders issued by state governors. Although there is no guaranty that a governmental agency will not conclude otherwise, it is my opinion that DMEPOS suppliers can credibly take the position that they fall within the “Essential Services” category.”

The full CISA memo from the Dept. of Homeland Security can be found here.