This article was updated on April 27, 2020. Read the update here.
On April 20, 2020, the Louisiana Department of Health issued an updated notice/order expanding the categories of medical and surgical procedures that may be performed, and issuing further guidance concerning certain other healthcare services that may be provided, during the declared statewide COVID-19 public health emergency. This updated notice/order is effective on and after April 27, 2020 “until further notice.”
Medical and Surgical Procedures
The April 20 updated notice/order expands the categories of medical and surgical procedures that may be performed during the declared statewide COVID-19 public health emergency to include procedures necessary to treat “time-sensitive medical conditions.” As previously reported, the Department’s earlier March 21 updated notice ordered all medical and surgical procedures to be postponed except for those procedures that fall into one of two categories:
- Medical and surgical procedures necessary to treat an “emergency medical condition” as defined at 42 C.F.R. § 489.24 (e., “(1) [a] medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances and/or symptoms of substance abuse) such that absence of immediate medical attention could reasonably be expected to result in (i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy; (ii) [s]erious impairment to bodily functions; or (iii) [s]erious dysfunction of any bodily organ or part; or (2) [w]ith respect to a pregnant woman who is having contractions—(i) [t]hat there is inadequate time to effect a safe transfer to another hospital before delivery; or (ii) [t]hat transfer may pose a threat to the health or safety of the woman or unborn child); and
- Medical and surgical procedures necessary to avoid further harm from an underlying condition or disease.
The April 20 updated notice/order continues to permit these two categories of medical and surgical procedures to be performed during the declared statewide COVID-19 public health emergency and, effective April 27, 2020, also permits a third category of medical and surgical procedure to be performed during this emergency, specifically:
- Medical and surgical procedures necessary to treat “time-sensitive medical conditions”.
Although the April 20 updated notice/order does not define the term “time-sensitive medical conditions”, it does emphasize that “any medical or surgical procedure in which a delay will not adversely affect the particular patient or the underlying disease process should continue to be postponed.” The April 20 updated notice/order also provides that medical or surgical procedures necessary to treat time-sensitive medical conditions may only be performed during the declared statewide COVID 19 public health emergency if each of the following six enumerated conditions/requirements are fully satisfied:
- Each patient undergoing such a medical or surgical procedure must undergo an appropriate pre-operative clinical evaluation to minimize the risk that the patient has COVID-19 and, if available, such clinical evaluation must include appropriate COVID-19 testing;
- Each patient undergoing such a medical or surgical procedure must be required to comply with strict social distancing measures from the time of the pre-operative clinical evaluation through the day of the surgery;
- The facility and healthcare provider must have an adequate and appropriate supply of personal protective equipment (PPE) to treat the patient, as well as any other patient, including COVID-19 positive patients, in the facility; at no time shall a facility’s PPE supply to treat COVID-19 positive patient fall below a 5-day supply on hand at the facility; and the facility must not be dependent on the state or another governmental body to supply the 5-day requirement;
- There must be an adequate supply chain to the facility and healthcare provider for medical equipment, supplies, and medications;
- The facility and healthcare provider must have adequate medical staff, including surgical, surgical support, recovery, and nursing staff, to meet the needs of all patients;
- The facility and healthcare provider must conduct constant monitoring of hospital, regional, and state resources, as well as Emergency Support Function #8 (ESF-8) reports, indicating the coronavirus burden of disease and impact.
The April 20 updated notice/order further provides that the Louisiana State Health Officer may, at any time upon providing notice, rescind the authorization for healthcare providers to perform medical and surgical procedures for the treatment of time-sensitive medical conditions. In determining whether to rescind such authorization, the Louisiana State Health Officer may consider the number of new admit COVID-19 cases in Louisiana and the statewide (or regionwide) availability (or non-availability) of ventilators, ICU beds and med surg beds.
Healthcare Services Other Than Medical and Surgical Procedures
Also effective April 27, 2020, in connection with healthcare services other than medical and surgical procedures, the April 20 updated notice/order mandates that “any in-person healthcare services be postponed when patient outcomes would not be compromised.” In fulfilling this mandate, the updated notice provides that healthcare providers (a) “shall use their best medical judgment within the scope of their license to make this determination,” (b) “shall consider the entire clinical picture when determining if a service can be safely postponed, including the consequences to the patient of postponement and the consequences to the healthcare system,” and (c) “[if] acting in good faith shall not be found to be in violation of this directive.” Consistent with this mandate, the April 20 updated notice/order further directs all healthcare providers to “offer – when medically appropriate and when the same standard of care can be met – a telehealth mode of delivery, rather than an in-person visit.” In complying with this directive, the updated notice provides that healthcare providers (a) “shall make a determination about the appropriateness of telehealth on a case-by-case basis,” (b) “may encounter legitimate and valid barriers to telehealth delivery and may not be able to shift all services to telehealth,” and (c) “[if] acting in good faith shall not be found to be in violation of this directive.”
Monitoring and Reporting Requirements
Also effective April 27, 2020, a healthcare provider must, within 10 to 14 days of performing any medical or surgical procedure on, or providing other healthcare services to, a patient in accordance with the April 20 updated notice/order, contact the patient to determine whether the patient has any signs or symptoms consistent with COVID-19 or has tested positive for COVID-19 since the procedure was performed or service provided. This contact must be documented in the patient’s medical record and, if the patient (a) reports signs or symptoms consistent with COVID-19, the healthcare provider must make recommendations to the patient in connection therewith, including that the patient obtain appropriate testing, or (b) reports that he or she has tested positive for COVID-19, the healthcare provider must immediately inform the Louisiana Office of Public Health via electronic notification. It is recommended that the patient’s medical record also document what the patient reports, any recommendations provided, and any report made to the Louisiana Office of Public Health as a result of this required follow up contact.
Additional Guidance from CMS
The April 20 updated notice/order also recommends that any healthcare provider who performs any medical or surgical procedure on, or provides other healthcare services to, a patient in accordance with the April 20 updated notice/order, comply with the recommendations issued by the Centers for Medicare and Medicaid Services (CMS) on April 19, 2020, regarding “Re-opening Facilities to Provide Nonemergent Non-COVID-19 Healthcare: Phase I” (as well as any subsequent applicable recommendations or guidance issued by CMS).
Finally, the April 20 updated notice/order confirms that its mandates apply to all licensed health care facilities in Louisiana and all healthcare professionals licensed, certified, authorized, or permitted by any board, authority or commission under the Department.