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.

IN DEPTH

In a move to re-open the state economy, Texas Governor Abbott issued an executive order on April 17, 2020, that pulls back on a prior executive order restricting most surgical and medical procedures. The governor’s prior order was set to expire 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.

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 clearly only contemplates hospitals. This means that 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.

The Texas Medical Board (TMB) adopted an emergency rule in response to the first order that made performance of a non-urgent elective procedure in violation of the governor’s order cause for temporary suspension, and required mandatory reporting of any violation. The TMB’s rule is not set to expire until the governor’s COVID-19 disaster declaration expires, and as of the time of publication of this article, had not been amended. Therefore, any physician scheduling procedures in an ASC should check the TMB’s current rules and its COVID-19 Response website for updates.

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, it would seem unlikely that many hospitals would be willing or able to make such a certification. Hospitals should consult with healthcare regulatory counsel on the implications of making such a certification.