This alert was originally published on April 20, 2020, and was updated on April 22, 2020, to reflect new developments.
On April 17, 2020, Texas Governor Abbott issued an executive order permitting healthcare facilities to provide less urgent surgical and medical procedures. This order is in effect until May 8, 2020. On April 21, 2020, the Texas Medical Board issued a new emergency rule and new FAQs in response to this order.
In a move to re-open the state economy, Texas Governor Abbott issued an executive order, EO-GA-15, on April 17, 2020, that pulls back on a prior executive order restricting most surgical and medical procedures. The governor’s prior order, EO-GA-09, expired on April 21, 2020, and limited licensed facilities from providing any surgery or procedure not “immediately medically necessary to correct a serious medical condition of, or to preserve the life of, a patient who without immediate performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.”
The new order, which is in effect until May 8, 2020, continues to impose restrictions on procedures but allows for procedures of a less urgent nature. Notably, this order removes reference to immediate medical need. Instead, the new order requires that the surgery or procedure be “medically necessary to diagnose or correct a serious medical condition of, or to preserve the life of a patient, who, without timely performance. . . would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician.”
The new order provides that this restriction does not apply to any surgery or procedure performed in a licensed healthcare facility that has certified in writing to the Texas Health and Human Services Commission (THHS) that (1) it will reserve at least 25% of its hospital capacity for treatment of Coronavirus (COVID-19) patients, accounting for the range of clinical severity of COVID-19 patients; and (2) it will not request any personal protective equipment (PPE) from any public source, whether federal, state or local, for the duration of the COVID-19 disaster. THHS published a guidance letter that includes required certification language and contact information for submitting any such certification.
Finally, the new order includes an exception for any procedure that would not deplete hospital capacity or PPE.
What This Means for Ambulatory Surgery Centers (ASCs)
While the new order does not specifically reference ASCs, the certification to be made to THHS in order to be exempt from the restriction arguably only contemplates hospitals. ASCs should consult experienced healthcare regulatory counsel regarding whether they can make this certification. Otherwise, unless unless the procedure would not deplete PPE, ASCs must comply with the restrictions imposed, such that they may only perform procedures that are medically necessary to diagnose or correct a serious medical condition that must be treated in a timely manner to avoid serious adverse medical consequences or death. While the patient’s physician has discretion to determine whether this standard is met, it is important for the physician to document the medical necessity for each procedure and any adverse consequences of delay, as the difference between a need for an “immediate” procedure as opposed to a “timely” procedure is not clearly defined.
On March 24, 20202, the Texas Medical Board (TMB) adopted an emergency rule in response to EO-GA-09 that made performance of a non-urgent elective procedure in violation of this executive order cause for temporary suspension, and required mandatory reporting of any violation. However, that emergency rule has now expired and on April 21, 2020, TMB issued a new emergency rule, along with new FAQs in response to EO-GA-15. The new emergency rule makes failure to follow the new order cause for suspension of a medical license, though there is no mandatory reporting duty. In the FAQs, TMB underscores the importance of physicians documenting any determination that a surgery or procedure was “urgent and necessary” in a patient’s medical record to evidence compliance with the new order. While the FAQs shed light on TMB’s interpretation of the new order, there are some inconsistencies between the new order and the FAQs. Due to the inconsistencies, providers should consult healthcare regulatory counsel.
What This Means for Hospitals
Hospitals must also comply with the order prohibiting elective procedures unless they can certify to the THHS regarding reserving 25% of capacity for COVID-19 patients and refraining from requesting PPE from any public source for the remainder of the COVID-19 disaster. Given the uncertainty of the length of the COVID-19 disaster, hospitals may have concerns about making such a certification and should consult with healthcare regulatory counsel on the implications of making such a certification.
While the governor stated in press conferences that it is his intent that local orders not supersede his executive order, EO-GA-15 does not specifically state that local orders shall not supersede it. This presents some ambiguity, and providers should consult healthcare regulatory counsel to review the local orders in light of EO-GA-15.