Dec 14, 2020 | Roger Berger

Performing Procedures During a COVID-19 Shutdown? Proceed With Extreme Caution!

By: Roger Berger

As most healthcare providers in Texas know, the COVID-19 crisis led to an Executive Order from Texas Governor Greg Abbott (Executive Order GA-09, March 22, 2020) which required all licensed health care professionals to postpone all surgeries and procedures 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.  The dual purposes of the Order were to prevent depletion of hospital capacity and personal protective equipment (PPE) needed to cope with the COVID-19 pandemic.

The Texas Medical Board (TMB) and Texas State Board of Dental Examiners (TSBDE) both adopted emergency rules to enforce Governor Abbott’s prohibition.  The Medical Board mandated that all licensed health care professionals postpone all surgeries and procedures not immediately medically necessary to correct a serious medical condition or to preserve the life of a patient who, without immediate surgery or procedure would be at risk for serious adverse medical consequences or death. 22 TAC §187.57(c)(1).  The Rule provided an exception for procedures which would not deplete hospital capacity or PPE. 22 TAC §187.57(c)(2). 

The TSBDE adopted a similar provision, adding failure to postpone dental surgeries and procedures not medically necessary to the list of actions considered to be “dishonorable conduct” which subject licenses to discipline.  The Dental Board included a similar exception for dental procedure that do not deplete hospital capacity or PPE. 22 TAC §108.9(12).

Texas Attorney General Ken Paxton clarified that Governor Abbott’s Order applied “to all surgeries and procedures that are not immediately medically necessary, including routine dermatological, ophthalmological, and dental procedures, as well as most scheduled healthcare procedures that are not immediately medically necessary such as orthopedic surgeries or any type of abortion that is not medically necessary to preserve the life or health of the mother.”

Over the ensuing months, both Boards fielded complaints about providers who performed office-based procedures.  Not surprisingly, many of these complaints were lodged by colleagues and competitors.  Regardless of the relationship between the complainant and licensee, both Boards fully investigated the complaints.  Many resulted in agreed orders in lieu of formal settlement conferences; others proceeded to Informal Settlement Conferences or have investigations still ongoing.

For many doctors and dentists who have been the subject of investigations of alleged violations of these COVID-19 rules, their defense has been that they reasonably believed the procedures they performed were medically necessary to diagnose or correct a potentially serious condition and that the procedure could not be delayed without risking adverse consequences to their patients.  As with many other investigations by the Boards, the key factor in whether this defense will be accepted is the contemporaneous records.  Did the healthcare provider adequately document the reasons why he or she was performing the procedure and what might happen if it was delayed?  Although the rules do not specify whether the belief needs to be objectively reasonable, past experience shows that ISC panels do require this (i.e., just saying you believed it was necessary is not enough if the ISC panel does not believe you).

The other defense offered by many providers is that the procedures fell within the exceptions to the prohibitions; more specifically, performing the procedures did not deplete hospital capacity or PPE.  Board staff has countered by arguing that almost all procedures performed in the office carry risks that could result in hospitalization of patients.  Think about the consent form for a simple tooth extraction in a dental office, which often warns of the potential for an abscess.  As many dental professionals know, patients with abscesses sometimes need to be hospitalized for treatment with IV antibiotics.  Thus, according to the Dental Board, just about anything done in an office setting which could lead to hospitalization is a technical violation of the black letter of the law.

The same analysis can apply to depletion of PPE.  Any time a physician or dentist is performing office-based procedures, they use gloves and facemasks and presumably dispose of them afterwards.  They have thus depleted PPE that otherwise might have been saved for use in potential treatment of COVID-19 patients.  Again, a technical violation of the rules, even just using a pair of gloves and a mask.

If there is another partial shut down due to COVID-19 or any other infectious disease, keep the following in mind:

  1. Be very selective about which office-based procedures you perform;
  2. If you are going to perform procedures in the office, make sure you document your patient’s records well, including the reason(s) you believe it is necessary to do immediately without delay, noting the evidence you have supporting your belief;
  3. Document the outcome of the procedure and note whether or not your pre-procedure belief about the need to do immediate surgery was born out (e.g., “the biopsy did, in fact, show the cancer that we suspected” or “although we were concerned the lump might be cancerous, pathology showed it wasn’t);
  4. The Boards can and will investigate all complaints and their investigations will not be limited to whether you were performing procedures that were barred by the rules; the Boards will look at and often find standard of care violations in way the procedures were done, and;
  5. If a Board receives a complaint that you are/were performing non-emergency procedures, they will ask you for a list of all patients for whom you performed procedures and will then ask you for records for those patients.  You will have to justify each and every procedure and they can find standard of care violations, not just limited to whether the procedure was in fact immediately necessary.