Following Governor Greg Abbott's issuance of Executive Order GA-09 (“Executive Order”), the Texas Medical Board (“TMB”) adopted rules on March 24, 2020 on an emergency basis to enforce the Executive Order’s prohibition against performing surgeries and medical procedures that are not immediately medically necessary through April 21, 2020.

Health care services are an exception to the various “Shelter in Place” and “Stay Home/Work Safe” orders issued by Counties and Cities throughout the State. As reported by Seyfarth on March 23, 2020, Governor Abbott issued the EO providing an exception to the exception for elective surgical procedures.

On March 24, 2020, the TMB issued emergency rules putting additional teeth into the EO’s restriction. First, TMB amended Rule 187.57 (22 Tex. Admin. Code § 187.57) to authorize temporary suspension or restriction of a physician’s license for performing a procedure in violation of the EO. Such a violation, according to the amended rule, constitutes a “continuing threat to the public welfare.” The amended rule contains exceptions, consistent with the AO, for procedures that do not use hospital beds or personal protective equipment (“PPE”).

Second, TMB amended Rule 178.4 (22 Tex. Admin. Code § 178.4) requiring facilities and other licensees with a reporting obligation to TMB to file a complaint with TMB immediately upon discovery of any scheduled procedure in violation of the EO. Such complaint must be filed even though any peer review process related to the scheduling of the procedure is completed.

The TMB did not provide clarification or guidance as to what types of procedures come within the prohibition but noted further general guidance and FAQs would be forthcoming.