Legal Bulletins

Q: When can health care providers resume elective and non-urgent procedures and appointments?

A: On May 6, 2020, Maryland Secretary of Health Robert R. Neall issued an order that allows Maryland health care providers to resume elective and non-urgent procedures at 7 a.m. on May 7, 2020.

Q: Should providers resume seeing all patients in person?

A: No. The order notes that there is still widespread community transmission of COVID-19 and that providers must “exercise their independent professional judgment” in determining what procedures should resume and which patients should be seen in person at this time.

Q: Are there conditions providers must meet to resume elective and non-urgent procedures?

A: Yes. First, providers must have at least one week’s supply of personal protective equipment (PPE) for all staff, and as appropriate, for patients. The state will not provide any PPE to providers for use in elective procedures, so providers are responsible for procuring their own PPE through traditional supply chains. If providers cannot obtain the necessary PPE, they cannot conduct elective or non-urgent procedures. Second, all medical offices must enforce social distancing protocol in waiting areas. To meet this requirement, providers are encouraged to promulgate alternate arrangements, such as having patients wait for appointments in their vehicles and conducting registration over the phone before entering the building. Third, everyone entering the provider’s office, including staff and patients, must be screened for COVID-19 symptoms. Finally, providers must follow all advanced workplace infection control measures in accordance with current Centers for Disease Control and Prevention (CDC) guidelines, including wearing masks.

Q: What other steps should providers take in regard to PPE?

A: Providers are required to immediately implement the CDC’s Strategies to Optimize the Supply of PPE and Equipment, which includes using masks beyond printed shelf life, reusing masks in some limited circumstances and prioritizing the use of masks for essential procedures or activities with prolonged face-to-face contact.

Q: Do state laws granting some legal immunity to providers during a public health emergency cover providers resuming elective procedures?

A: No. While Maryland does have some immunity laws for health care providers acting in good faith under a catastrophic health emergency, disease surveillance and response program or catastrophic health emergency proclamation, the Maryland Department Health has stated that it does not interpret those protections to extend to any health care provider or facility performing non-COVID-19 related procedures or appointments.

Please contact the Gordon Feinblatt Health Care team if you have questions about how the current status of any regulations or executive orders impacts your practice.

Barry F. Rosen
410-576-4224 • brosen@gfrlaw.com

Alexandria K. Montanio
410-576-4278 • amontanio@gfrlaw.com

For additional information on the impact of the coronavirus, visit our COVID-19 information hub for a list of up-to-date content.