Today, the Texas Governor, Greg Abbott, issued an Executive Order that significantly loosens his previous restrictions on the performance of elective surgeries by modifying prior language and adding an additional exception to the prohibition.  Specifically, the new Order states that, effective April 21, 2020 and continuing until 11:59 pm on May 8, 2020.

All licensed health care professionals and all licensed health care facilities shall postpone all 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; provided, however, that this prohibition shall not apply to either of the following:

  • 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.

Consequently, the Governor has added an additional exception freeing up hospitals that reserve 25% of their hospital capacity for COVID-19 patients.  The exception does not, however, reference ambulatory surgery centers or professional offices.  Presumably, ASCs only have to certify that they will not request any personal protective equipment from a public source.  Intentionally or not, the new exception does not appear to impact procedures performed in professional offices.

Interestingly, the Order slightly changes the prohibition.  The original Order said that the surgery or procedure had to be “immediately medically necessary to correct…”  The new Order removes “immediately” and adds “diagnose or [correct].”  Also, the original Order said “without immediate performance of the surgery or procedure.”  The new Order says “ without timely performance of the surgery or procedure.”

Here is a link to the new Executive Order:  EO-GA-15_hospital_capacity_COVID-19_TRANS_04-17-2020.