Texas Allows More Elective Procedures, But Questions Remain

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On April 17, 2020, Texas Governor, Gregg Abbot signed Executive Order GA-15 which extended, with some modifications, Executive Order GA-09 which prohibits certain non-emergency surgeries and procedures and is set to expire on April 21, 2020 at 11:59 p.m. GA-15 extends the basic provisions of this order through May 8, but expands the scope of procedures that can be done in Texas.

Background

Executive Order GA-09

On March 22, 2020, Governor Abbott issued GA-09 in the wake of national and state disaster declarations. The stated purpose of GA-09 is to prevent a shortage of hospital bed capacity and supplies of personal protective equipment (PPE) in the event of a surge of COVID-19 patients needing hospital care. GA-09 addressed this purpose by requiring all licensed health care providers to postpone all surgeries and procedures until midnight on April 22. The order has several exceptions – (a) surgeries or procedures that are immediately medical necessary to correct a serious medical condition or preserve the life of a patient; (b) surgeries or procedures that if not performed immediately would be put the patient at risk for serious adverse medical consequences or death; and (c) procedures that when performed according to the standard of care would not deplete the hospital capacity or PPE needed to cope with the COVID-19 disaster. The order also suspended several hospital licensing regulations in order to increase hospital capacity for a COVID-19 surge. Although GA-09 is generally considered a ban on “elective procedures” that term does not appear in the order.

Texas Attorney General Statement

On March 23, 2020, the Texas Attorney General (AG) issued a statement delineating examples of procedures that the AG believes are covered by GA-09: “routine dermatological, ophthalmological, and dental procedures, as well as most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.”  The statement did not elaborate on what are considered “routine” procedures or what types of “scheduled” procedures could move forward.    

Texas Medical Board Guidance

On March 25, 2020, the Texas Medical Board (TMB) issued emergency rules and guidance on the implementation of the Governor’s order. The guidance was subsequently revised on March 29. The guidance introduced the concept of “non-urgent elective” as the type of surgeries and procedures that are prohibited by GA-09. TMB defines a non-urgent elective surgery or procedure as one where there is “no anticipated short-term nor long-term negative impact as a result of delay[],” and emphasized that the physician must make this determination in each case. The guidance provides a four-step analysis to assist physicians in this regard: (1) Is the person performing the service a licensed health care professional (or delegate), or performing the medical act in a licensed health care facility? (2) If so, is the service in question a surgery or procedure? (3) If so, is either of the following statements true: (a) the surgery or procedure is immediately medically necessary to correct a serious medical condition or to preserve the life of a patient; or (b) the patient, without immediate performance of the surgery or procedure, would be at risk for serious adverse medical consequences or death? (4) If either statement is true, the physician may perform the surgery or procedure; if neither statement is true, could the surgery or procedure deplete hospital capacity or the supply of PPE needed to cope with the COVID-19 disaster? If the answer to this last question is yes, then the physician may not proceed; if the answer is no, the physician may proceed.

With respect to the second consideration above, TMB identified several practices that do not constitute surgeries or procedures and are therefore not implicated by GA-09: (1) physical examinations, (2) non-invasive diagnostic tests, (3) performing lab tests, and (4) obtaining specimens to perform laboratory tests. Finally, the guidance provided more examples of surgeries and procedures that have to be postponed: screening for a nonlife-threatening chronic condition and most cosmetic procedures.

County Stay at Home Orders

Counties throughout Texas have issued stay at home orders in response to the COVID-19 disaster.  In some cases, however, these orders go beyond April 21. For example Tarrant County’s current executive order expressly adopts GA-09, but goes through April 30. Dallas County’s stay at home order also goes through April 30 but does not expressly adopt GA-09. Instead, the order prohibits “elective  medical, surgical, and dental procedures,” and directs “[h]ospitals, ambulatory surgery centers, dental offices, and other medical facilities . . . to identify procedures that are deemed ‘elective’ by assessing which procedures can be postponed or cancelled based on patient risk considering the emergency need for redirection of resources to COVID-19 response.” Presumably, however, the Dallas County order would not allow procedures prohibited by GA-09.

Executive Order GA-15

Governor Abbot’s April 17, 2020 Executive Order extends the directives of GA-09 until May 8, 2020, but with some important modifications. Like GA-09, GA-15 is premised on the need to preserve hospital capacity and PPE for a COVID-19 surge, and requires postponing of medical surgeries and procedures that are not necessary to address a serious medical condition or preserve the life of the patient.

Unlike GA-09, GA-15 expressly allows for diagnostic procedures.  In addition, GA-15 removes the immediacy requirements of GA-09. Under the current order, a surgery or procedure must be “immediately” medically necessary to correct a serious medical condition or preserve the patient’s life. GA-15 contains no time frame in this regard. Likewise, GA-09 requires that the “immediate” performance of the surgery or procedure is necessary to avoid the risk of serious medical consequence or death. GA-15 requires “timely” performance.

GA-15 also includes a new exception to the ban on surgeries and procedures where a licensed health care facility certifies in writing to the Texas Health and Human Services Commission (HHSC) that (1) it will reserve 25% of its hospital bed capacity for the treatment of COVID-19 patients; and (2) it will not request PPE from any public source for the duration of the COVID-19 disaster. Upon such certification, surgeries and procedures can be conducted at the facility beginning April 22.

Impact and Remaining Questions

The changes in GA-15 allow for a broader range of surgeries and procedures. Diagnostic procedures are expressly allowed. Many of these types of procedures had been postponed resulting in delays in beneficial treatment for many patients. In addition, no longer must a surgery or procedure be immediately necessary to correct the patient’s serious medical condition or be performed immediately in order to avoid the risk of death. In this manner, more surgeries and procedures can be performed and physicians have more discretion in identifying those surgeries and procedures that can benefit their patients.

In addition, surgeries are now eligible for the exception pertaining to conserving hospital capacity and PPE. Under GA-09, only non-emergency procedures which, when performed in accordance with the standard of care, did not deplete hospital capacity or PPE could proceed. GA-15 allows facilities licensed by HHSC to perform a surgery (or procedure) by certifying in writing that (1) it will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients; and (2) it will not request PPE from any public source. Licensed hospitals with sufficient bed capacity and PPE supply can begin surgeries on April 22 with the appropriate written certification.

The applicability of the exception is less clear for facilities, such as ambulatory surgery centers (ASCs), that are not required to have “hospital capacity” as part of their license.  These facilities cannot reserve something they do not have, but surgeries at such facilities would be consistent with the order because they do not deplete hospital capacity.  Providers with concerns over the applicability of this exception should consult with counsel knowledgeable in the area.

The new exception may also shed some light on the existing exception for procedures that do not “deplete” PPE needed to cope with the COVID-19 disaster. Under the standards of the new exception discussed above, PPE can be used for the surgery or procedure as long as the facility does not request public supply of PPE during the COVID-19 disaster. Likewise, a procedure in a physician’s office or facility may not deplete PPE needed to cope with the COVID-19 disaster if it does not threaten or otherwise use PPE reserved by a federal, state or local agency for an anticipated surge of COVID-19 patients. Again, providers with concerns about the application of this exception should consult with counsel knowledgeable in the area.

Finally, several county stay at home orders are in effect beyond April 22. To the extent these orders were consistent with GA-09 and may therefore prohibit surgeries and procedures allowed by GA-15, providers should proceed with caution and consult with counsel on the ability to perform these services.