On May 3, 2020, Michigan’s Chief Medical Executive, Joneigh Khaldun, MD, MPH, FACEP, sent a letter to Michigan clinicians providing further guidance related to Executive Order 2020-17 and the delivery of health care procedures deemed to be non-essential. In her letter, Doctor Khaldun strongly encouraged providers to resume services and procedures that are important for patient health and well-being, while also adopting protocols to ensure staff and patient safety.

Executive Order 2020-17, which imposes temporary restrictions on certain non-essential medical and dental procedures, has generated a number of questions as hospital and medical practices look to resume currently postponed medically necessary, time sensitive procedures. The Executive Order defines “non-essential procedure” as “a medical or dental procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” Under the Executive Order, covered facilities, including hospitals, freestanding surgical outpatient facilities, medical and dental facilities, are required to implement a plan to temporarily postpone non-essential procedures until the termination of the state of emergency. Per Executive Orders 2020-67 and 2020-68, the state of emergency presently is set to expire on May 28, 2020. Although the Michigan legislature recently filed a lawsuit to challenge Governor Whitmer’s authority to re-declare and continue the state of emergency, it is advisable for medical practices and physicians to continue to comply with all Executive Orders unless and until they expire, are rescinded or are declared unenforceable by competent legal authority.

Language in Executive Order 2020-17 has created confusion and inconsistent interpretations among the medical community regarding whether or not a medical encounter or procedure is required to be postponed, and if so, for how long. For example, although joint replacement surgeries may be medically necessary to preserve the health and safety of a patient (and therefore may qualify as an essential procedure), Executive Order 2020-17 specifically requires joint replacement surgeries to be postponed, unless postponement would “significantly” impact the health, safety and welfare of the patient.

According to Doctor Khaldun, the language in the Executive Order “is intended to be flexible, preserve clinician judgment, and encourage consideration on an individual basis of which patient services can be safely delayed without resulting in a significant decline in health. [Executive Order] 2020-17 gives providers broad discretion to apply this standard.”

Doctor Khaldun also stated, “I have had the pleasure of speaking to many physician and health system leaders in recent days and applaud current efforts to re-engage with patients in the safest way possible and within the scope of Executive Order 2020-17.”

Doctor Khaldun’s letter encourages clinical judgment for purposes of complying with Executive Order 2020-17. However, many have expressed concerns that neither Executive Order 2020-17 nor Doctor Khaldun’s letter give physicians the necessary reassurances that their good faith clinical decision-making in determining which medical procedures may be safely performed will not be second-guessed by the State and its agencies, including licensing authorities. Many physicians have also expressed concerns that Executive Order 2020-17 may not effectively ensure patient access to necessary care.

MSMS continues to seek greater clarity on these issues. It is anticipated that further updates, clarifications, and/or guidance may be provided in the near future. Based on Doctor Khaldun’s letter, as well as follow-up discussions with Doctor Khaldun and representatives of the Governor’s Office, MSMS encourages physician medical practices to assess which medically necessary procedures including, but limited to, non-urgent ambulatory office and clinic visits, ambulatory diagnostic testing, imaging procedures, and inpatient and outpatient surgery and procedures, may be safely resumed in compliance with Executive Order 2020-17. Physicians should keep in mind that in addition to emergency care, Executive Order 2020-17 excludes from postponement surgeries related to advanced cardiovascular disease (including coronary artery disease, heart failure, and arrhythmias) that would prolong life; oncological testing, treatment, and related procedures; pregnancy-related visits and procedures; labor and delivery; organ transplantation; and procedures related to dialysis.

The following guidance is intended to assist physicians in understanding their obligations and options to resume non-essential patient encounters and procedures furnished by their medical practices. It will be necessary for medical practices to monitor for changes to Executive Orders issued by Michigan’s Governor, any Emergency Orders issued by county and local authorities, CDC guidelines, and related developments, which may impact the ability to resume furnishing non-essential encounters and procedures.

Determining Which Non-Essential Medical Encounters and Procedures May be Resumed

• As stated in Doctor Khaldun’s letter, “procedures or visits that were not time-sensitive several weeks ago may now be, based on clinical judgment.” Physicians should identify and prioritize which medical visits and procedures may be safely resumed and when. Important factors physicians should consider include:
  • Community progress towards reducing the incidence of COVID-19.
  • Availability of staff and PPE supplies.
  • Protocols established by inpatient or outpatient facilities .
  • The overall necessity of the medical visit or procedure, which may vary on a case-by-case basis, including whether continued postponement may negatively impact the ability to manage the patient’s condition, outcomes, or risk.
  • For office visits, whether the visit may be effectively performed through telehealth.

Guidance for Resumed Surgeries and Other Invasive Procedures

• Physicians must continue to postpone joint replacement, bariatric surgery, and any cosmetic surgery unless, in the exercise of their clinical judgment, such surgery is related to an emergency or trauma where postponement would significantly impact the health, safety, and welfare of the patient.
• Physicians should incorporate resumed surgeries and procedures into their non-essential procedure postponement plan in accordance with Executive Order 2020-17. 
• As with any surgical or other invasive procedures, it is important to ensure a patient understands the benefits and risks associated with the procedure, and for the patient for furnish informed consent for the procedure.
• Physicians should ensure that patients understand the additional risks of any surgical or other invasive procedure due to the COVID-19 pandemic, and obtain the patient’s informed consent of those risks including, but not limited to the following:
  • Patients should undergo COVID-19 testing no more than 72 hours prior to surgery.
  • Patients should understand the risk of false negatives associated with COVID-19 and the increased risk of morbidity/mortality in patients who undergo surgery while COVID-19 positive.
  • Patients should understand the possibility of exposure to COVID-19 in between the time of testing and surgery and the risk of exposure during and after the procedure while at the facility.
  • Patients should understand the possible need to self-quarantine before and following the procedure.

Providing a Comprehensive COVID-19 Response Plan

• Medical practices should prepare a workplace policy identifying all the protective measures that will be taken to ensure COVID-19 does not spread within the workplace. These protective measures should include daily screenings, proper cleaning protocols, responses to a COVID-19 patient, responses to a COVID-19 staff member, and any other protective actions taken by the practice.
• MSMS has developed a sample workplace policy, which medical practices may use as a template and modify to incorporate any additional policies, procedures and protective measures specific to that medical practice. Medical practices should monitor when the declared national and Michigan public health emergencies are ended, and monitor CDC guidance to determine whether modifications to any employment-related policies, procedures or protective measures may be necessary (e.g., modifications to staff member screenings and testing, which are subject to the Americans with Disabilities Act (“ADA”) standards).

Implementing Daily Screening Forms

• Clinical and non-clinical staff members should be evaluated daily to ensure they are not exhibiting any of the principal symptoms of COVID-19.
• Medical practices should take staff member temperatures only if they have a touchless thermometer. If a touchless thermometer is unavailable, medical practices may accept a staff member’s verbal confirmation that he or she does or does not have a fever.
• If a touchless thermometer is available, medical practices should:
  • Designate one individual to take temperatures and perform screening of staff members and other individuals entering the medical practice;
  • Supply the designated individual with appropriate personal protective equipment, including face masks, gloves, and even goggles; and
  • Provide cleaning solutions such as hand sanitizer and household cleaner.
• Ensure all individuals waiting to be evaluated are waiting outside the medical practice and standing at least 6 feet apart from one another.
• To comply with the ADA, staff members should be evaluated out of sight from other staff members. Any medical information acquired by the medical practice related to any screening or testing activities should be kept confidential by the medical practice and not disclosed to staff members outside of management or Human Resources.
• Staff members exhibiting symptoms of COVID-19 should be sent home immediately. Once they are out of the medical practice facility, they should call and report the areas they visited within the facility and who they had close contact with so the medical practice may respond appropriately.
• MSMS has developed a sample screening form which medical practices may use as a template to document staff member screenings.

Ensuring Daily CDC-Compliant Cleanings

• Practice routine cleaning and disinfecting of frequently touched surfaces.
• Encourage staff members to routinely clean their own workspaces first using soap and water and then using a disinfectant.
• Clean and disinfect all areas used by a person who is ill, such as offices, bathrooms, common areas, shared electronic equipment like tablets, touch screens, keyboards, remote controls, etc. If more than 7 days have passed since a person who is sick visited or used the facility, additional cleaning and disinfection is not necessary under current CDC guidelines.

Encouraging Social Distancing

• Continue social distancing measures as recommended by the CDC.
• Individuals should remain, to the extent feasible, six feet apart from each other at all times.
• Group meetings should be postponed or held via telephone or video conference.
• Physical contact should be avoided where it is not necessary for patient care or medical practice operations.

Additional guidance is available via MSMS’s Safe Return to Clinical Practice Recommendations, the American Medical Association’s Physician Practice Guide to Reopening, and national specialty society’s recommendations.