The Texas Medical Board Has Adopted an Emergency Rule in response to Governor Abbott’s Executive Order GA-15 

April 21, 2020

Today, the Texas Medical Board (“TMB”) adopted an emergency rule to enforce Texas Governor Greg Abbott’s Executive Order GA-15 (“EO GA-15"), which replaces Executive Order GA-09 at 11:59 pm tonight and will remain in effect until 11:59 pm on May 8, 2020, unless terminated, modified or extended by the Governor. The adopted emergency rule amends TMB’s violation guidelines and adds to the definition of “Unprofessional and Dishonorable Conduct.” In addition, TMB issued an updated FAQ to provide additional guidance on EO GA-15 and the adopted emergency rule.

How will the definition of “Unprofessional and Dishonorable Conduct” change?

Potential unprofessional and dishonorable conduct now includes a violation of Texas EO GA-15. EO GA-15 orders all licensed health care professionals and all licensed health care facilities to postpone surgeries and procedures that are not medically necessary to diagnose or correct a serious medical condition, or to preserve the life, of a patient who without timely performance of the surgery or procedure would be at risk for serious adverse medical consequences or death, as determined by the patient’s physician unless either exception applies.

Are there any exceptions to the restriction in EO GA-15?

Yes. The prohibition will not apply to (i) any procedure performed in accordance with the commonly accepted standard of clinical practice, that would not deplete hospital capacity or the personal protective equipment (“PPE”) needed to cope with the COVID-19 disaster; or (ii) any surgery or procedure performed at a licensed health care facility that has certified in writing to the Texas Health and Human Services Commission (“HHSC”) that it will reserve at least 25% of hospital capacity for the treatment of COVID-19 patients and that it will not request PPE from any public source for the duration of the COVID-19 disaster.

Is a physician responsible for ensuring that a licensed healthcare facility meets the second exception?

Yes. A physician performing a surgery or procedure must verify with HHSC that the licensed health care facility where the surgery or procedure will be held has submitted a written certification to HHSC. Further, this verification must be documented in the medical record.

Should non-urgent elective in-patient, out-patient, and office-based surgeries and procedures be rescheduled?

Yes, unless the physician determines that the surgery or procedure cannot be postponed or that the surgery or procedure meets one of the two exceptions in EO GA-15.

What does the term “procedure” not include?

A “procedure” does not include physical examinations, non-invasive diagnostic tests, performing lab tests, or obtaining specimens to perform laboratory tests.

Can a physician perform a medical act that is not a surgery or procedure?

Yes. If a provider preforms another medical act, such as a history, physical exam, non-invasive procedure or lab test, the physician may proceed with the medical act.

Can office-based visits be scheduled and performed?

Yes. Office-based visits that do not include surgeries or procedures may continue, but should be conducted in accordance with standard protocols.

What should a physician do if a surgery or procedure is necessary and will not violate EO GA-15?

TMB notes that documentation is key. If a clinical practice exception applies, it is very important that the medical record reflect (i) why the physician determined a surgery or procedure was urgent and necessary to prevent serious adverse medical consequences or death and (ii) the impact on hospital bed availability and usage of PPE. TMB suggests that documentation could include information pertaining to the patient’s medical history, prescriptions, lab results, imaging or other relevant factors used when determining the urgent necessity of the surgery or procedure. Additionally, referencing legitimate literature and guidelines, such as from the Centers for Disease Control and Prevention or Centers for Medicare and Medicaid Services, would be helpful. If a written complaint is received and there is enough information in the complaint to proceed with an investigation, TMB will review the medical records.

What about physicians practicing in non-licensed health care facilities?

Only the first exception included in EO GA-15 applies for physicians practicing in non-licensed health care facilities. 

Does TMB offer any additional guidance for determining when a procedure or surgery should be performed?

Yes. TMB states “[i]f you normally could or would wait a few weeks to provide the surgery or procedure being considered for a specific patient based on the patient’s unique circumstances, then that might help you decide what to do”. Further, “[i]f you normally could not or would not wait a few weeks to provide the surgery or procedure being considered for a specific patient based on the patient’s unique circumstances, then that might help you decide what to do”.  

*It is important to note that certain Texas county stay at home orders, including, but not limited to Dallas County, remain in effect beyond April 22 and on their face prohibit certain surgeries and procedures otherwise allowed by EO GA-15. We will continue to keep you apprised of any developments or guidance related to EO GA-15.

Joshua M. Weaver
Phone: (214) 705-3516
Board Certified – Health Law
Texas Board of Legal Specialization
Steve Litke
Phone: (972) 427-7685
Ashley E. Johnston
Phone: (214) 763-8296
Board Certified – Health Law
Texas Board of Legal Specialization
Chris Reed
Phone: (214) 705-3935
Joseph E. Nelson
Phone: (214) 705-3907
Board Certified – Health Law
Texas Board of Legal Specialization
Rachael Nelson Gearing
Phone: (469) 680-9609
Kevin Mitchell
Phone: (469) 680-9049
Stephanie Toth
Phone: (469) 480-9729
Shannon Cahalan
Phone: (214) 938-9898
Paul Wehrmann
Phone: (214) 957-0919
Vicki Wanjura
Phone: (214) 587-6026
The material contained in this email alert is for informational purposes only. It is not intended to be legal advice nor is it intended to create and receipt does not establish an attorney-client relationship. Legal advice of any nature should be sought from legal counsel. The COVID-19 disaster, and the federal, state and local governmental response, is a fluid and rapidly involving situation, meaning the material contained herein may be subject to change.