Recent clarifications by Arizona state officials seemingly relaxed restrictions for certain physician practices adhering to the March 21, 2020 executive order prohibiting all non-essential or elective surgeries. Such direction from the governor’s office should give physician groups much needed relief in continuing certain elective procedures, such as those related to pain management services, in outpatient settings.
The Order
Executive Order 2020-10, effective March 21, 2020, prohibits “all non-essential or elective surgeries, including dental surgeries, that utilize personal protective equipment or ventilators . . . at any licensed healthcare facility or by any licensed healthcare provider.” Personal protective equipment (“PPE”) includes N-95 masks, surgical masks, surgical gloves, and protective gowns. The Order defined non-essential or elective surgeries as those surgeries “that can be delayed without undue risk to the current or future health of a patient.” Notably, “elective surgery” is not defined in Arizona statutes or the Arizona Administrative Code. The Order aims, among other things, to “conserve hospital beds, PPE and other equipment such as ventilators needed to treat COVID-19 patients.” Additionally, DHS has advised against procedures utilizing anesthesia devices, which can be deployed, if needed, as ventilators for COVID-19 patients.
The Penalties
Anyone who “knowingly fails or refuses to obey any lawful order or regulation” issued under a State of Emergency, such as EO 2020-10, is guilty of a class 1 misdemeanor and faces up to six months in jail and a $2,500 fine. See A.R.S. § 26-317. Violators can also be charged with additional misdemeanors for endangering the public health and violating local health department rules.
Perhaps more critical are the repercussions with the Arizona Department of Health Services, which can enforce its own regulations in connection with the pandemic and executive orders. Violations of DHS regulations constitute a class 3 misdemeanor, which carries up to a $500 fine, with continuing violations constituting a separate offense each day. See A.R.S. § 36-140. Further, DHS may suspend or revoke a facility’s license under A.R.S. § 36-427 and refer individual violators to the Arizona Medical Board.
The Issue
While EO 2020-10 is aimed directly at non-essential surgeries performed at hospitals and ambulatory surgery centers, does it also mandate delay of all procedures performed at clinics and outpatient treatment centers?
The Clarification
The governor’s office clarified to the Arizona Hospital and Healthcare Association that the EO does not apply to non-essential “procedures” but rather, the “intent is to just limit non-essential surgeries for now.” Indeed, the EO does not reference specific surgeries, according to the governor’s office. “Instead, it allows licensed medical professionals to use their best medical judgment in determining what surgery is essential or non-elective.”
Indeed, the Order itself grants physicians wide discretion in determining whether a surgery is non-essential or elective. Such discretion has been echoed by DHS Director Cara Christ at press briefings. Meanwhile, DHS has directed providers to consult CMS recommendations regarding elective surgery determinations. These recommendations, however, only contemplate surgeries performed at hospitals and ASCs.
The Best Practice
While the EO has led to confusion among physician groups to proceed with elective procedures in outpatient settings, recent clarification affords discretion to providers to continue such treatment, including pain management services. Nevertheless, to safeguard from enforcement action, practices should consider documenting decision-making regarding continued elective procedures. Such protocol could entail adopting a practice policy defining elective procedures and continued treatment. Case-by-case determinations could also be examined by a quality assurance committee or subcommittee. Practices should, of course, continue to monitor daily updates from state and federal authorities.
For additional guidance for physician groups during the pandemic, please visit Husch Blackwell’s COVID-19 Toolkit.
Sean works with physician groups on a wide range of regulatory and transactional issues, including fraud and abuse, reimbursement, hospital integration arrangements, compliance programs, and defending against government enforcement actions.