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Texas Medical Board Issues Guidance Related to Emergency Rule Adopted in Response to Governor Abbott’s Executive Order GA-19

Yesterday, the Texas Medical Board (“TMB”) issued guidance in the form of frequently asked questions in response to the adopted emergency rule issued to enforce Texas Governor Greg Abbott’s Executive Order GA-19, effective May 1, 2020 at 12:00 a.m. until it is terminated, modified or extended by the Governor.  As previously outlined here, the adopted rule sets required minimum standards for safe practice related to COVID-19 and requires posting notice of those minimum standards. A few key takeaways follow:

What requirements are implanted in the new emergency rule?

The emergency rule outlines the minimum standards for safe practice that physicians and their delegates must follow for so long as this emergency rule remains in effect.  Further, physicians must post notice of the minimum standards for safe practice in each public area and treatment room or area of the office, practice or facility to ensure patients understand the measures.

What are the minimum standards for safe practice under the new emergency rule?

All physicians providing patient care or engaging in an in-person patient encounter must implement the following COVID-19 standards of safe practice:

  • A mask must be worn by the patient and the physician or the physician’s delegate when the patient and the physician or the physician’s delegate are less than six-feet apart;
  • All policies the physician, medical and healthcare practice, or facility has in place regarding COVID-19 screening and testing and/or screening patients must be followed;
  • Before any encounter, patients must be screened for potential symptoms of COVID-19 or it must be verified that the patient was previously screened within last 20 days; and
  • Prior to care involving a medical procedure or surgery on the mucous membranes with a high risk of aerosol transmission, a physician or physician’s delegate should use N95 masks, or an equivalent protection from aerosolized particles, and face shields.

Do the minimum standards for safe practice apply regardless of practice setting?

Yes, the minimum standards for safe practice apply in all practice settings.

Can office-based visits be performed?

Yes, so long as a physician and delegates comply with the minimum standards for safe practice and post the required notice.  TMB further encourages healthcare practitioners to consider taking additional safety measures if necessary, beyond the minimum standards for safe practice.

Is there a required form of notice needed to comply with the new emergency rule?

No.  Any design/form of notice is okay so long as it contains the required information and is visible to a physician’s patients.  However, TMB has created a PDF notice that may be utilized by physicians, which can be found here.

Are physicians required to provide masks to patients?

Yes, if a patient does not have a mask, the practice must provide a mask or face-covering.  There is not a requirement as to the specific type of mask/face-covering patients must wear.  A physician may refuse to treat a patient who is not wearing a mask.  The decision to treat a patent is at the discretion of the physician or physician’s practice.  The patient’s mask can be removed if needed during the course of examination or during treatment, a procedure or surgery. A patient is not required to wear gloves. 

What should a physician do if the physician performs a surgery or procedure to show compliance with the emergency rule?

TMB notes that documentation is key even though there is no requirement to document compliance with the emergency rule.  TMB recommends that physicians consider documenting they informed the patient of the measures taken for the patient’s safety in the medical record or indicate if a patient is given copies of documents regarding the minimum standards for safe practice. For any procedures or surgeries that involve mucous membranes, TMB reminds physicians that the minimum standards for safe practice require specific equipment standards to be utilized.