Elective Surgeries During the COVID-19 Pandemic

Elective Procedures and Surgeries

March 25, 2020

On March 22, 2020, Governor Abbott signed Executive Order GA-09, which directs facilities and licensed healthcare professionals to postpone through April 21, 2020 all surgeries and procedures that are not immediately, medically necessary to correct a serious medical condition 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. Executive Order GA-09 does not apply to any procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the personal protective equipment needed to cope with COVID-19. To access the press release and a full text of this Executive Order, please visit here .

Attorney General Ken Paxton’s Response to Governor Abbott’s Executive Order GA-09

Texas Attorney General Paxton issued a statement on March 23, 2020 that the prohibitions outlined in Executive Order GA-09 apply “throughout the State and to all surgeries and procedures that are not immediately medically necessary, including 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.” To view the full text of the statement, please visit here .

Texas Medical Board (“TMB”) Emergency Rules Regarding Non-Urgent, Elective Surgeries and Procedures and Related Guidance

On March 24, 2020, the TMB adopted rules on an emergency basis to enforce Governor Abbott’s Executive Order GA-09. These emergency rules amend Section 187.57 and Section 178.4 of Title 25 of the Texas Administrative Code.

The rules amend the definition of “continuing threat to the public welfare” to include actions prohibited by Executive Order GA-09 relating to “surgeries and procedures that are ‘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.’” Now, the performance of a non-urgent elective procedure, as described in and in violation of Executive Order GA-09, is deemed a continuing threat to the public welfare.

The TMB also amended the peer review and hospital reporting rule to require immediate reporting, as opposed to reporting after the peer review process. The TMB expects such amendments to minimize delays in reporting and allow the TMB to more immediately utilize the disciplinary authority granted by Section 164.059 of the Texas Occupations Code.

The TMB advised that elective surgeries or procedures can still occur if: (1) 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; or (2) if performed in accordance with the commonly accepted standard of clinical practice, the non-urgent elective surgery or procedure would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID- 19 disaster.

In FAQs released on March 23, 2020 and updated on March 24, 2020, the TMB defined “Elective, non-urgent”, “Urgent or Elective Urgent”, and “Emergent” to assist healthcare providers in determining if a patient’s condition will get rapidly worse if these types of procedures are delayed or cancelled.

“Elective, non-urgent” cases are “cases where there is no anticipated short-term nor long-term negative impact because of delaying a procedure or surgery. Examples are screening for a chronic condition or most cosmetic procedures.”

“Urgent or Elective Urgent” procedures are scheduled procedures “where there is a risk of patient deterioration or disease progression likely to occur if the procedure is not undertaken or is significantly delayed. The resulting decline in their health could make them more vulnerable to COVID-19 and other issues.”

The TMB defined “Emergent” as “a life-threatening condition if not undertaken or that cannot be safely delayed for any significant period of time.”

In its FAQ, the TMB noted that the medical record should clearly reflect why an elective surgery or procedure is necessary to prevent serious adverse medical consequences or death if an elective surgery is necessary and will not violate Executive Order GA-09 or TMB rules. Documentation should include information regarding the patient’s medical history, prescriptions, lab results, imaging, or other relevant factors used to help make the determination of the necessity of the surgery or procedure.

Failure to abide by Executive Order GA-09 can result in penalties of up to $1,000 or 180 days of jail time. Further, the TMB may determine that the performance of a non-urgent, elective procedure is a continuing threat to the public welfare. The TMB noted “[a] complaint of this nature may result in a temporary suspension hearing with or without notice depending on the circumstances. Any Board action to restrict or suspend a licensee’s license, even if temporary, will trigger a mandatory report to the National Practitioner Data Bank.” Additionally, the TMB has mandated that any peer review committee, licensee, and other group, entity, or person named in Sections 160.003, 204.208, 205.304, and 206.159 of the Texas Occupations Code shall be immediately required to report violations of Executive Order GA-09 or Section 187.57(c) of the Texas Administrative Code.

To access the TMB emergency rules, the TMB COVID-19 Elective Surgery FAQs or the TMB’s COVID-19 Elective Surgery Guidance related to elective medical procedures performed in the State of Texas, please visit TMB’s coronavirus website .

Dallas County Emergency Order

On March 22, 2020, Dallas County Judge Clay Jenkins issued an Emergency Order to be effective as of 11:59 p.m. on March 23, 2020, which in part temporarily bans all elective medical procedures in Dallas County through April 3, 2020 in order to redirect resources to COVID-19 response. Hospitals, ASCs, dental offices and other medical facilities are directed to identify procedures that are deemed “elective” by assessing which procedures can be postponed or cancelled based on patient risk considering the need for redirection of resources to the COVID-19 response. For a full copy of the Amended Order, please visit here .

Please contact us if you have questions or concerns as to whether these orders and rules affect your practice or operations.