Texas Governor Instructs Hospitals to Postpone Surgeries and Procedures

June 25, 2020

Texas Governor Greg Abbott issued Executive Order No. GA-27 on June 25 relating to the need for increased hospital capacity during the coronavirus (COVID-19) pandemic. As COVID-19 numbers in Texas surge, the order aims to preserve hospital bed availability for infected patients.

Texas Executive Order No. GA-27 is directed to general acute care hospitals (Texas Health and Safety Code Chapter 241 licensed facilities) located in Bexar, Dallas, Harris, or Travis counties. Under the order, these hospitals must 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.”

The order, however, states that the prohibition does “not apply to any surgery or procedure that, if performed in accordance with the commonly accepted standard of clinical practice, would not deplete any hospital capacity needed to cope with the COVID-19 disaster.” Although there is some ambiguity about what may deplete a hospital’s “capacity needed to cope” with the pandemic, this likely refers to both bed space and personal protective equipment (PPE).

On its face, the order does not limit the provision of office-based elective procedures, which leaves open the possibility of performing procedures in ambulatory care facilities and physician offices. However, based on the rapidly rising number of COVID-19 cases and hospitalizations in Texas, the Texas Medical Board may issue new emergency rules limiting the provision of elective procedures by physicians in any setting.

Earlier this week, we had a Fast Break webinar session on elective procedures in various states, including Texas. The resumption of elective procedures is critical for the ongoing financial viability of health systems, so this most recent order represents an unfortunate, but necessary, step back from that goal in Texas.

As we continue to see COVID-19 cases spike in areas that were not significantly impacted previously, we anticipate that other executive orders like the one issued by Governor Abbott will be forthcoming. Health systems need to understand the legal risks and implications of these orders, as well as subsequent orders that might partially or fully lift these restrictions.

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If you have any questions or would like more information on the issues discussed in this LawFlash, please contact the authors or any of the following:

Washington, DC
Michele L. Buenafe
Kathleen McDermott
Scott A. Memmott
Albert W. Shay
Howard J. Young
Jacob J. Harper
Ariel Landa-Seiersen

Gregory N. Etzel
B. Scott McBride
Banee Pachuca
Sydney Reed

Mark B. Stein

San Francisco
W. Reece Hirsch