Texas Medical Board Passes Emergency Rules to Enforce Prohibition of Elective Procedures

Late yesterday, the Texas Medical Board (“TMB”) adopted rules to enforce the Texas Governor’s Executive Order and its prohibition against performing surgeries and medical procedures that are not immediately medically necessary, through April 21, 2020. TMB President Sherif Z. Saafran, M.D. explained, “[t]he Texas Medical Board has echoed the strong recommendations for providers and health care facilities to postpone any non-emergent surgeries or procedures. We thank Governor Abbott for ordering a statewide prohibition against certain surgeries or procedures if they result in the depletion of hospital capacity or personal protective equipment needed to cope with the Covid-19 disaster.”

The TMB’s Executive Committee also approved emergency rules ensuring quick action if a provider is found to violate the prohibition. The Executive Order provides that “[f]ailure to comply with an executive order issued by the governor related to the COVID-19 disaster can result in penalties of up to $1,000 or 180 days of jail time.” A complaint about the performance of a non-urgent elective procedure also can result in a temporary suspension hearing with or without notice depending on the circumstances. The TMB also amended rules to require immediate reporting as opposed to after the peer review process.

So what is a non-urgent elective procedure? According to the rules adopted by the TMB yesterday, it is one that is “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.” Further guidance from the TMB explains that non-urgent elective 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 and most cosmetic procedures. Attorney General Ken Paxton’s office has further elaborated that routine dermatological, ophthalmological, and dental procedures, are also not immediately medically necessary.

But what about elective procedures that are also urgent? Such procedures are not prohibited. The TMB explains that those procedures, usually scheduled, are 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.”

These rules are designed to preserve resources like personal protective equipment and ventilator availability, and to keep beds and practitioner time allocated to COVID-19 patients. The restrictions also help patients and healthcare workers avoid unnecessary COVID-19 exposure.

The law acknowledges, though, that foregoing certain procedures might not help achieve that overall goal. Governor Abbott’s Executive Order states the “prohibition shall 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 the COVID- 19 disaster.

Julie Bergkamp is a partner in the Tax section with the law firm of Cantey Hanger LLP.  For more information call 817-877-2812 or visit www.staging.poised-team.flywheelsites.com.

This article is for information purposes only and is not intended to be legal advice or substitute for consulting an attorney. We recommend that you discuss your particular situation with your attorney when you need legal advice.