On March 19, 2020, the Mississippi Department of Health (“MSDH”) issued a press release advising that “elective medical procedures and non-essential medical visits must be postponed.”  (emphasis added). (See https://msdh.ms.gov/msdhsite/_static/23,21854,341.html) Specifically, the MSDH directed that:

• Physicians, hospitals and medical centers must defer elective surgical and diagnostic procedures until COVID-19 spread has diminished and the supply of protective medical equipment is restored.
• Physicians and providers should reschedule non-urgent medical appointments for a later date.
• Dentists must delay non-emergency or routine dental procedures.
• Patients should reschedule any non-essential procedures, surgeries or medical visits until the threat of COVID-19 is diminished.

The Mississippi State Board of Medical Licensure (“MSBML”), joined by Mississippi State Medical Association, promptly published a statement in support of the MSDH’s recommendation “for all physicians, physician assistants and podiatrists to delay all elective surgery and non-essential invasive procedures during the State of Emergency for the COVID-19 pandemic.” (See https://www.msbml.ms.gov/sites/default/files/slides/COVID-19_MSBML_031920.pdf).

WHAT IS AN “ELECTIVE” PROCEDURE?

Neither the MSDH nor the MSBML define or elaborate on what constitutes an “elective” procedure; therefore, Mississippi healthcare providers must look to other sources for guidance when determining whether to proceed with or postpone a procedure.

Mississippi Medicaid

According to Mississippi Medicaid provider rules, an “elective” procedure is one where the “patient’s condition permits adequate time to schedule the availability of a suitable accommodation.”  As this definition is quite broad, it is not very instructive in this particular situation.  As the AHA noted in a March 15, 2020 letter to the U.S. Surgeon General, Jerome Adams, M.D., the term “elective”’ simply means a procedure is scheduled rather than a response to an emergency. For example, ‘elective’ surgeries could include replacement of a faulty heart valve, removal of a serious cancerous tumor, or a pediatric hernia repair” which if delayed could cause the patient’s condition to get “rapidly worse” or  “even be life threatening.”

CMS

Perhaps in response to the AHA’s letter, on March 18, 2020, CMS issued a tiered framework to help providers determine the types of procedures that warrant postponing as elective.  CMS explains that the guide is designed to assist “health systems as they consider resources and how best to provide surgical services and procedures to those whose condition requires emergent or urgent attention to save a life, preserve organ function, and avoid further harm from underlying conditions.” CMS notes that decisions “remain the responsibility of local healthcare delivery systems, including state and local health officials, and those surgeons who have direct responsibility to their patients. However, in analyzing the risk and benefit of any planned procedure, not only must the clinical situation be evaluated, but resource conservation must also be considered.”  CMS further advises that “at all times, the supply of personal protective equipment (PPE), hospital and intensive care unit beds, and ventilators should be considered, even in areas that are not currently dealing with COVID-19 infections.”

CMS suggests the following factors be considered when determining whether a procedure should proceed:

• Current and projected COVID-19 cases in the facility and region;
  • consider the following tiered approach in the table below to curtail elective surgeries. The decisions should be made in consultation with the hospital, surgeon, patient, and other public health professionals
• Supply of PPE to the facilities in the system;
• Staffing availability;
• Bed availability, especially intensive care unit beds;
• Ventilator availability;
• Health and age of the patient, especially given the risks of concurrent COVID-19 infection during recovery; and
• Urgency of the procedure.

CMS breaks elective procedures in the following tiers, with helpful examples:

While the CMS recommendations provide significant guidance, they do not definitively determine “what is an elective procedure.” Instead, CMS recommendations indicate that, during this pandemic, the definition of “elective” is fluid (e.g. recommendations appear to suggest a more conservative approach to delaying surgery or office visits should be taken in areas with high concentrations of COVID-19 cases, current or expected, limited supplies of PPE).  However, this does not mean that a procedure/visit that is truly elective should proceed even if there is a low incidence of COVID-19 existing or expected;  these procedures should be postponed in any event.

Guidance from Other States

How other states have defined “elective procedures” in response to COVID-19 measures may also be instructive. For example:

New York: Hospitals are “directed to identify procedures that are deemed ‘elective’ by assessing which procedures can be postponed or cancelled based on patient risk considering the emergency need for redirection of resources to COVID-19 response.”

Ohio: “A non-essential surgery procedure is a procedure that can be delayed without undue risk to the current or future health of a patient.” Examples of criteria to consider include: (a) threat to the patient’s life if surgery is not performed; (b) threat of permanent dysfunction of an extremity or organ system; (c) risk of metastasis or progression of staging; or (d) risk of rapidly worsening to severe symptoms (time sensitive).

Minnesota: “A non-essential surgery or procedure is a surgery or procedure that can be delayed without undue risk to the current or future health of a patient.” Examples of criteria to consider in making this determination include: (a) threat to the patient’s life if surgery or procedure is not performed; (b) threat of permanent dysfunction of an extremity or organ system, including teeth and jaws; or (c) risk of metastasis or progression of staging.

Other Considerations.

In addition to the considerations discussed above, it may also be helpful to consider whether another professional in the same specialty, with all relevant information about a patient,  would agree (or at least not disagree) with the conclusion to proceed or postpone.

CONCLUSION AND PRACTICAL TAKE-AWAYS.

Ultimately, what is and is not an “elective” medical procedure in Mississippi during the COVID-19 pandemic should be based on the professional judgment of the physician or surgeon.  While Mississippi healthcare providers are, for the time being, being given discretion to make this determination, it is important to avoid a “business as usual” approach.  Violations of the requirements regarding procedures and patient visits can result in licensure action against individuals and facilities.  Such violations as well as the provider’s decision regarding the necessity of the procedure may also increase the provider’s exposure to malpractice claims.

To mitigate risk, practices should establish clear policies and procedures regarding elective procedures during the COVID-19 pandemic such that any regulator who follows up on a complaint or otherwise is looking into the practice is able to see what steps were taken to address this issue. Additionally, in instances where the “elective” nature of a procedure is not clearly obvious, the provider should fully document, in the patient’s medical record, the rationale supporting his/her decision to move forward with or postpone a procedure and any discussions with the patient about the decision.