Desperate Times, Desperate Measures: Elective Medical Procedures Banned, PPEs at Risk of Confiscation

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Apr 6, 2020

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In an effort to conserve the state’s medical supplies and equipment, specifically personal protective equipment (PPE), Washington and Oregon (among other states) have banned non-urgent, elective procedures.^[1] A move that the states hope will help ensure adequate supply of PPE and other medical equipment (e.g., ventilators) to address the COVID-19 pandemic. Here is a comparative chart summarizing the prohibitions promulgated by Washington and Oregon:

Inquiry	Washington^[2]	Oregon^[3]
What is banned?	All “health care services, procedures, and surgeries that, if delayed, are not anticipated to cause harm to the patient within the next three months.”	“All elective and non-urgent procedures across all care settings that utilize PPE.”
PPE confiscation?	Not as of March 20, 2020.	Yes, prior to March 27, 2020, entities with surplus PPE supplies must notify the state’s PPE Coordinator by calling (971) 900-9952 and deliver surplus supplies to the PPE Coordinator.
Are there any exceptions?	(1) “Does not include outpatient visits delivered in hospital based clinics”; (2) “Does not apply to the full suite of family planning services and procedures or to treatment for patients with emergency/urgent needs” (e.g., heart attack, stroke, or car accidents); and (3) “Hospitals and ambulatory surgical facilities may perform any surgery that if delayed or canceled would result in the patient’s condition worsening” (e.g., removing tumor, dental care to relieve pain or manage infection).	(1) Surgery or procedure is exempt if a three-month delay in procedure or surgery would put the patient at risk or cause irreversible harm; and (2) Non-exhaustive factors for determining “irreversible harm” include (a) threat to patient’s life; (b) threat of irreversible harm to patient’s physical or mental health; (c) threat of permanent dysfunction of an extremity or organ system; (d) risk of metastasis or progression of staging; and (e) risk of rapidly worsening to severe symptoms (time sensitive).
Who must comply?	All hospitals; ambulatory surgical facilities; and dental, orthodontic, and endodontic offices.	Including, but not limited to, hospitals, ambulatory surgery centers, outpatient clinics (including community health clinics and student health centers), dental clinics, veterinary clinics, etc.
For how long?	Until May 18, 2020.	From March 23, 2020 to June 15, 2020.
Miscellaneous information	Examples of procedures that must be delayed include “most joint replacements, most cataract and lens surgeries, non-urgent cardiac procedures, cosmetic procedures, some endoscopy, and some interventional radiology services.”	“Individuals and entities in other industries that utilize PPE, including but not limited to the commercial, construction, farming, and manufacturing sectors are strongly encouraged to cancel or postpone non-essential uses of PPE.”
Penalties	Violators guilty of gross misdemeanor.^[4] Potential disciplinary action by licensing board.^[5]	Violators guilty of Class C misdemeanor.^[6] Potential disciplinary action by licensing board.^[7]

As evident from the chart, both states have an outright ban (or postponement) on the provision of non-urgent surgery or other procedures that require use of PPE. Oregon has gone a step further and is mandating that providers account for any “surplus PPE” and requiring providers to “arrange for delivery” of the surplus to the state. Note that the order does not discuss whether the providers whose PPEs are confiscated will be compensated by the Oregon government. In light of such drastic measures, providers are scrambling to ensure that they take appropriate compliance measures. There are various compliance measures that providers may choose to consider, such as:

To the extent that the services being provided fall squarely within the exceptions discussed above, providers likely don’t need to get special permission to continue providing the excepted services;
Providers who are continuing to provide services that fit within an exception should document on the providers’ websites, client facing documents, and/or signs that the providers are complying with the order and limiting services; and
Providers who are continuing to provide services because they fit within the exceptions permitted should document in the patient’s medical record that the procedure being performed meets the exception criteria and provide a written explanation regarding why the procedure qualified for the exception.

It remains to be seen whether such prohibitory measures will materially assist the states in improving their COVID-19 response. Providers in states where such prohibitions are not currently in place should consider preparing and implementing anticipatory policies so that if and when the time comes, they are prepared to comply.
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^[1] See WA Proclamation by the Governor No. 20-24; See also OR Governor’s Executive Order No. 20-10.
^[2] WA Proclamation by the Governor No. 20-24.
^[3]OR Governor’s Executive Order No. 20-10.
^[4] RCW 43.06.220.
^[5] See, for example, Washington Dental Quality Assurance Commission COVID-19 Pandemic Statement (April 2, 2020).
^[6] ORS 401.990.
^[7] See, for example, Oregon Board of Dentistry’s COVID-19 Frequently Asked Questions (stating that violations of the order prohibiting elective and non-urgent procedures may constitute unprofessional conduct in violation of the Dental Practice Act).

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