By Courtney P. Cowan, JD, ByrdAdatto

Physicians in Texas are anxiously waiting to learn whether the Texas Medical Board (TMB) would clear up confusion from Executive Order GA 15, which suggests the loosening of restrictions for elective procedures. On April 21, 2020, the TMB released its newest Emergency Rule and FAQs regarding Executive Order GA 15. It confirmed that restrictions on non-essential or elective procedures in Texas have been reduced, but not to the extent that many medical providers were hoping. The TMB mandates that non-urgent, elective inpatient, outpatient and office-based surgeries and procedures must be postponed, unless the surgery or procedure meets one of the exceptions set forth in Executive Order GA 15, which allow hospital surgeries and licensed surgery center surgeries if certain factors are met.

Many physicians, however, will be frustrated to learn that office-based surgeries appear to continue to be prohibited, as they are not included in the new exceptions. The omission of office-based surgery suites is nuanced. Many surgery suites are certified by the American Association for Accreditation of Ambulatory Surgery Facilities (AAAASF), an independent certifying body. Executive Order GA 15 and the TMB seem to limit the exception to ambulatory surgery centers as defined by Texas law and as governed by Texas Health and Human Services. It is unclear why office-based surgery suites were excluded, as the spirit of the new order seemed to focus on preserving hospital capacity and personal protective equipment (PPE). Nevertheless, the following paragraphs contain the specifics from Executive Order GA 15 and the TMB.

Executive Order GA 15, April, 17, 2020, states that the restrictions on non-essential or emergency (e.g. elective) procedures have been loosened only where:

1. The procedure, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete the hospital capacity or the PPE needed to cope with COVID-19; or
2. A surgery or procedure is performed in a licensed health care facility that has certified in writing to Texas Health and Human Service Commission (THHSC) both 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 that it will not request any PPE from any public source—whether federal, state, or local—for the duration of the COVID-19 disaster.

These exceptions are effective at 11:59pm on April 21, 2020, and will continue through 11:59pm on May 8, 2020.

On April 21, 2020, the TMB passed the above-mentioned Emergency Rules to enforce Governor Abbot's Executive Order GA-15, as well as to provide clarification for the exceptions to non-urgent elective surgeries. The TMB states that any non-urgent elective inpatient, outpatient, and office-based surgeries and procedures should be rescheduled, unless the physician determines that the surgery or procedure cannot be postponed. Office-based visits that do not include surgeries or procedures may continue without prohibition, so long as the visits are conducted in accordance with standard protocols, including safety measures that prevent the spread of COVID-19.

With that said, elective surgeries may resume at a licensed facility, such as an ambulatory surgery center or hospital, at 11:59 pm on April 21, so long as the licensed health care facility certifies the above in writing to the THHSC. If you intend to perform surgeries from April 22 (practically speaking) through May 8, then you will want to send a written correspondence to the THHSC as soon as possible. The contents of the certification must be drafted as follows:

• Be on the licensed health care facility's letterhead;
• Be addressed to:
  • Health Facility Licensing Certification Coordinator
    Health and Human Services Commission
    Health Facility Licensing – MC 1868
    P.O. Box 149347
    Austin, Texas 78714-9347
• Reference the facility's name, license type and license number in the subject line;
• Identify by name the facility's administrator, director or other individual with authority to bind the facility;
• Include the following language:
  • I certify, on behalf of [name of licensed health care facility], that this facility 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
  • I certify, on behalf of [name of licensed health care facility], that this facility will not request any personal protective equipment from any public source, whether federal, state, or local, for the duration of the COVID-19 disaster.
• Not limit or qualify the required certification language in any way;
• Be signed by the facility's administrator, director or other individual with authority to bind the facility, and identified above; and
• Be submitted to the Health and Human Services Commission via email to HFLCertificationCoordinator@hhsc.state.tx.us.

A licensed health care facility that submits a certification with the required elements, as described above, will receive an acknowledgment via e-mail from the THHSC.

As a final thought, the Governor's office will continue to update the "reopened services" list with additional businesses and information through additional executive orders. We will continue to monitor this issue for any clarification or further orders that may affect you.

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As the daughter of a periodontist, Courtney P. Cowan has been fascinated by the health care field since childhood. She often accompanied her father to his office, where she developed an appreciation for physicians and their respective practices. Having absolutely none of the dexterity that is required to be a surgeon, however, Cowan instead decided to pursue a degree in business while attending Baylor University. It wasn't until she was required to take a business law course that she discovered her passion for the law. After graduating from Southern Methodist University Dedman School of Law, Cowan serendipitously connected with ByrdAdatto and now assists clients by combining her business background with her enthusiasm for health care and the law.