On November 24, 2020, in connection with the statewide public health emergency that he declared on March 11, 2020, and noting that the State of Louisiana moved into Phase 1 of recovery on May 15, 2020, Phase 2 of recovery on June 4, 2020, and Phase 3 of recovery on September 11, 2020, Louisiana Governor John Bel Edwards issued a proclamation, effective November 25, 2020, returning Louisiana to Phase 2 of recovery. Although the return to Phase 2 reinstitutes various restrictions on businesses and events in Louisiana as further discussed in this blog entry, no additional restrictions have been placed on (or reinstituted in connection with) permissible medical and surgical procedures in Louisiana. As a refresher, the following medical and surgical procedures, as originally described in the June 4, 2020 notice/order issued by the Louisiana Department of Health as extended by the July 2 emergency order subsequently issued by the Department, are currently permissible:
Permissible Medical and Surgical Procedures
The June 4 notice/order, which remains in effect “until further notice” (pursuant to the July 2 emergency order), permits the following categories of medical and surgical procedures to be performed during the declared statewide COVID-19 public health emergency:
- 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);
- Medical and surgical procedures “based on the needs of the specific patient, appropriately documented in the medical record, subject to the following conditions:”
(a) The facility/healthcare provider shall perform an appropriate pre-operative clinical evaluation on each patient to minimize the risk that the patient has COVID-19; such clinical evaluation shall include appropriate COVID-19 testing, if available;
(b) The facility/healthcare provider shall educate and encourage each patient undergoing such a medical or surgical procedure to comply with appropriate nonmedical interventions and with strict social distancing measures from the time of the preoperative clinical evaluation through the day of the surgery;
(c) The facility/healthcare provider shall have an adequate and appropriate supply of personal protective equipment (PPE) to treat the patient, as well as treat any other patient, including COVID positive patients, in the facility, per CDC guidance;
(d) The facility/healthcare provider shall have sufficient and adequate resources across the phases of care to safely meet the needs of the patient, including staffing, medical equipment, supplies, testing capacity, post-acute care, and medications; and
(e) All staff of the facility/healthcare provider shall utilize appropriate PPE at all times. Further, procedures involving the mucous membranes including the respiratory track, with a higher risk of aerosol transmission, should be done with great caution and staff shall utilize appropriate respiratory protection such as N95 masks and face shields.
Significantly, the June 4 notice/order makes clear that the decision to proceed with any medical or surgical procedure thereunder “will be up to the professional medical judgment of the medical professional acting within his or her scope of practice and pursuant to the standard of care for [the applicable] procedure,” and that providers acting in “good faith” will not be found in violation of this notice/order.
Permissible Healthcare Services Other Than Medical and Surgical Procedures
In connection with healthcare services other than medical and surgical procedures, the June 4 notice/order permits the following categories of healthcare services other than medical and surgical procedures to be performed during the declared statewide COVID-19 public health emergency:
Telehealth Services: The June 4 notice/order encourages maximum use of all telehealth modalities, but recognizes that valid barriers to telehealth delivery may exist. Accordingly, the June 4 notice/order further encourages healthcare providers to determine on a case-by-case basis whether telehealth is an appropriate modality of healthcare delivery.
In-Person Services: To the extent that telehealth is not appropriate in a particular case, the June 4 notice/order recommends that “any in-person healthcare services be postponed when patient outcomes would not be compromised,” but recognizes that “many in-person healthcare services are important, vital and essential, including chronic disease care/management and preventative/primary care.” Consistent therewith, the Department encourages preventative/primary care visits to detect health conditions that cannot be diagnosed by telehealth.
In fulfilling its obligations in connection with in-person services, the June 4 notice/order provides that healthcare providers (a) “shall use their best medical judgment within the scope of their license to make the determinations concerning the provision of in-person healthcare services”, (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) shall require the following for in-person visits: (i) all patients shall wear cloth face coverings, (ii) all staff of the facility/healthcare provider shall wear surgical face masks at all times, (iii) all patients hall be screened for COVID-19 symptoms pursuant to CDC guidance, and (iv) staff shall be routinely screened for COVID-19 symptoms pursuant to CDC guidance.
Significantly, the June 4 notice/order makes clear that providers acting in “good faith” in seeking to comply with their obligations under this order in making decisions concerning healthcare services other than medical and surgical procedures will not be found in violation thereof.
Additional Guidance from CMS
The June 4 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 June 4 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, such as the subsequent recommendations issued by CMS on June 8, 2020).
Finally, the June 4 notice/order, which again remains in effect “until further notice” (pursuant to the July 2 emergency 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.