The Texas Medical Board (“TMB”) has adopted an emergency rule based on Governor Greg Abbott’s April 17, 2020 Executive Order, which permits certain elective procedures beginning at 11:59 p.m. on April 21, 2020.  The emergency rule incorporates a violation of the Executive Order to the definition of “Unprofessional and Dishonorable Conduct” under 22 Texas Administrative Code Chapter 190.8.  The Executive Order permits:

  • 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.

However, where these conditions are not met, health care professionals and all licensed health care facilities remain prohibited from performing “surgeries and procedures that are not medically necessary to diagnose or correct a serious medical condition of, 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.”   This prohibition has been in place since Governor Abbott issued Executive Order GA-09 on March 22, 2020.

While states such as Texas have begun easing restrictions put in place to stop the spread of COVID-19, the World Health Organization Chief Tedros Adhanom Ghebreyesus stated on April 20 that “easing restrictions is not the end of the epidemic in any country.”   Instead, “[c]ountries must now ensure they can detect, test, isolate and care for every case, and trace every contact.”

Bottom Line – While Executive Order GA-15 does relax restrictions on the performance of certain elective procedures, to avoid liability all providers must ensure they are compliant with the above referenced conditions for the duration of the COVID-19 disaster, including the provision of a certification to the Texas Health and Human Services Commission.

Norton Rose Fulbright attorneys will continue to provide relevant updates for healthcare providers on the Health Law Pulse during the COVID-19 public health crisis.