TMB passes emergency rules enforcing ban on elective procedures

Laura Hale Brockway

Updated March 30, 2020

Editor’s note: Please see the TMB’s COVID-19 Elective Surgery FAQs (expired link) for more information. Please check these FAQs for updates often.

See also the TMA White Paper explaining the non-urgent surgeries rule.

On March 24, the Texas Medical Board (TMB) passed emergency rules to enforce Governor Abbott’s order to postpone all non-urgent elective surgeries and procedures.

The emergency rule expands the definition of “continuing threat to the public welfare,” to include the performance of surgeries and medical procedures that are not immediately medically necessary through April 21, 2020.

A physician found to be a “continuing threat to the public welfare” may face “a temporary suspension hearing with or without notice depending on the circumstances.”

Additionally, failure to comply with an executive order issued by the governor related to the COVID-19 disaster can result in penalties of up to $1,000 or 180 days of jail time.

The TMB also amended rules to require the immediate reporting to the TMB of any physician found to be in violation of the governor’s order.

“Finally, the Board has mandated by rule that any peer review committee, licensee, and other group, entity, or person named in §§160.003, 204.208, 205.304, and 206.159 of the Act shall be immediately required to report violations of Executive Order GA 09 or 22 TAC §187.57(c).”

The details

Specifically, the TMB stated the new emergency rules apply to “actions specifically prohibited by Executive Order GA-09 as it relates to surgeries and procedures that are ‘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, as determined by the patient's physician.’”

The rules also apply 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,” according to a statement issued by Texas Attorney General Ken Paxton.

Regarding penalties, the TMB also stated:

“Any Board action to restrict or suspend a licensee’s license, even if temporary, will trigger a mandatory report to the National Practitioner Data Bank (NPDB). While the definition of a “continuing threat to the public welfare” is expanded, the Board will follow all existing disciplinary proceedings to ensure due process to licensees.”

Risk management considerations

Communicate quickly with patients regarding required surgery cancellations through April 21^st, 2020. Share information from the governor’s order and TMB with patients and explain; many of them may already be aware. Document these discussions or communications with patients in the medical record.
If you determine an elective surgery is necessary and will not violate Executive Order GA 09 or TMB Emergency Rules, per the TMB FAQs, (expired link) “Documentation is key. It is very important that the medical record clearly reflects why the elective surgery or procedure was necessary to prevent serious adverse medical consequences or death. This documentation could include information on the patient’s medical history, prescriptions, lab results, imaging, or other relevant factors used to help make the determination of the necessity of the surgery or procedure.”
Keep a list or develop a reminder system to trigger rescheduling of all procedures when the crisis has passed. Prioritize procedures for patients who may be at greater risk due to extended delays. Set reminders or develop a tickler system to ensure no patients are "lost" to follow up.
For further interpretation of the TMB Emergency rules, see the FAQs (expired link) or contact the TMB:
Customer Service Phone: (512) 305-7030 (Outside Texas)
Customer Service Phone: (800) 248-4062 (Texas only)
Customer Service E-mail: verifcic@tmb.state.tx.us
The Texas Medical Association has developed a practice viability page to assist practices with COVID-19 financial concerns. More information for practices is available at the TMA’s COVID-19 Resource Page.