What is the latest on a Texas ban on elective surgeries? Following is a timeline of developments:
On March 22, 2020, Texas Governor Greg Abbott issued an Executive Order prohibiting medically unnecessary procedures in response to the COVID-19 pandemic.
On March 24, 2020, the Texas Medical Board (TMB) responded with new emergency rules to align with both Governor Abbot’s Executive Order and CDC recommendations that providers postpone all non-urgent elective surgeries and procedures in inpatient and outpatient settings as the U.S. health care system battled with COVID-19.
Essentially, the Texas ban and related TMB emergency rules included these orders and definitions:
- Medically unnecessary procedures prohibited. Executive Order GA 09 requires health care providers to postpone all procedures and surgeries which are not immediately medically necessary to correct a serious medical condition, or to preserve the life of a patient. In a press release, Texas Attorney General (AG) Ken Paxton noted this includes routine dermatological, ophthalmological, and dental procedures, as well as most scheduled procedures that are not immediately medically necessary, such as orthopedic surgeries or abortions which are not necessary to preserve a mother’s life or health.
- Emergency rule defines non-urgent elective procedure. TMB’s emergency amendment adds language to clarify what constitutes a non-urgent elective procedure, referred to as “a continuing threat to the public welfare during the battle against COVID-19,” and any procedure where there is no anticipated short- or long-term impact on the patient (i.e. screening for non-life-threatening conditions, and most cosmetic surgeries). While some hospitals or health care facilities may use different terms to designate “elective” procedures, physicians are ultimately responsibility for determining whether postponement or cancellation will put a patient at risk for serious adverse medical consequences or death.
- What’s a procedure? According to the TMB, a “procedure” does not include general physical exams, non-invasive diagnostic testing, lab tests, or obtaining samples for lab tests.
- Exemption for procedures that don’t deplete resources. Procedures or surgeries which don’t deplete hospital capacity or supplies of PPE needed in response to COVID-19 are not subject to the prohibition, and will be allowed.
- What other changes apply? The TMB Executive Committee amendment mandates any provider who schedules, prepares, performs, or has performed a non-urgent elective surgery or procedure as defined by the EO during the effective period to report the procedure to the TMB immediately.
- Penalties for Violations: The Executive Order and Texas AG Paxton’s statement make it clear that providers can face considerable penalties for violating new COVID-19 regulations on elective procedure prohibitions, including up to $1,000 in fines, or 180 in jail. Complaints and reported violations may also result in temporary suspension or restriction hearings with or without notice, depending on the facts involved. These penalties would fall under the jurisdiction of law enforcement, rather than the TMB.
On April 17, 2020, Governor Abbott loosened restrictions on elective surgeries to allow:
- 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 the COVID-19 disaster; or
- Any surgery or procedure performed in a licensed health care facility that has certified in writing to the Texas Health and Human Services Commission both:
- (1) that it will reserve at least 25% of its hospital capacity for treatment of COVID-19 patients, accounting for the range of clinical severity of COVID-19 patients; and
- (2) that it will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID-19 disaster.
On June 25, 2020, Governor Abbot lifted the ban for all but four Texas counties: Bexar, Dallas, Harris, and Travis counties. Two weeks later, he extended the ban to include more than 100 Texas counties due to a surge in COVID cases.
On September 17, 2020, Governor Abbott re-authorized elective surgeries at hospitals "in which hospitalized COVID-19 patients make up less than 15 percent of all hospitalizations for seven consecutive days."
Are Elective Surgeries Still Banned in Texas?
On August 9, 2021, Governor Abbott asked Texas hospitals to voluntarily delay nonessential procedures as COVID-19 patients strained capacity, but did not institute any new statewide restrictions.
For the latest announcements and emergency rules, please visit the Texas Medical Board's Coronavirus Disease (COVID-19) Response page.
How Providers Can Protect Their Patients & Practice
Because emergency rules and executive orders created additional obligations, providers in Texas and other states with similarly applicable regulatory changes must take steps to protect their patients and their practices. These include:
- Prioritizing documentation and record-keeping to clearly indicate when an elective surgery or procedure is urgent and necessary to prevent death or adverse health consequences (i.e. information regarding a patient’s medical history, prescriptions, lab or imaging results, and other factors used to make necessity determinations).
- Evaluating and documenting how a practice / elective procedure does not impact COVID-19 resources. Exceptions under the amendment permit non-urgent procedures if they do not deplete hospital capacity or PPE needed in response to COVID-19.Though providers must use their judgment, interpreting the impact on COVID-19 resources and cultivating a record of documentation may allow practices and providers to continue performance of certain procedures under the exemption.
- Preparing and responding to investigations or disciplinary proceedings efficiently. Upon receiving complaints, TMB may conduct temporary suspension or restriction hearings with or without notice. When hearings are conducted without notice, a follow-up temporary hearing with notice must be offered at the earliest possible date after 10 days’ notice of the hearing. If the urgency of complaints or alleged violations do not warrant temporary suspension or restriction, the TMB will adhere to its normal investigative process, which includes peer review. In any alleged violation of the new amendment, TMB will focus on (1) whether the procedure was medically necessary; and (2) whether the Standard of Care was met. Preparing for investigations and hearings, and responding to complaints in a timely and efficient manner, will be crucial to mitigating exposure to potential risks and adverse consequences.
Legal Counsel for Health Care Providers Amid COVID-19
COVID-19 has had, and will continue to have, broad implications on health care and the practice of medicine in Texas and the U.S. Amid sweeping regulatory amendments, including new rules regarding telemedicine, HIPAA compliance, and OSHA, it is clear the coronavirus’ impact can be felt not only by providers on the front lines of the crisis, but also professionals and businesses with operations that may not ostensibly coincide with emergency, hospital, or COVID-19 care.
These are unique and unprecedented times, in health care and in nearly every facet of life. However, as providers wade through uncharted waters, and new developments unfold, risks of violations, disciplinary action, audits, contractual disputes, and other adversities will remain; or become larger concerns.
At Hendershot Cowart P.C., our health and medical law team has decades of experience representing medical professionals, providers, hospitals, and practice groups through complex matters of regulatory compliance, medical contracts, medical license defense, and audits. If you have questions regarding your practice amid the current client, call to speak with an attorney.
