July 4, 2020

Volume X, Number 186

July 03, 2020

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July 02, 2020

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Considerations for Florida Health Care Providers as They Resume Elective Surgeries

On May 4, 2020, Executive Order 20-112, went into effect and contains certain measures adopted by Governor DeSantis as part of Phase 1 of the “Safe. Smart. Step-by-Step. Plan for Florida’s Recovery.” One such measure ended the prohibition on Florida health care providers providing elective surgery, where certain conditions are met.

Background

Governor DeSantis executed Executive Order 20-72 on March 20, 2020, which prohibited hospitals, ambulatory surgical centers, office surgery centers, dental, orthodontic and endodontic offices, and other health care practitioners’ offices in the state of Florida from providing any medically unnecessary, non-urgent or non-emergency procedure or surgery, and prohibited health care practitioners licensed in the State of Florida from performing such elective surgeries. The prohibition was intended to respond to the outbreak of Coronavirus Disease 2019 (COVID-19), incorporate guidance from the state surgeon general and the secretary for the Agency of Health Care Administration, and conserve medical supplies, including personal protective equipment (PPE).

Executive Order 20-112, which became effective on May 4, 2020, ended the prohibitions contained in Executive Order 20-72, allowing Florida health care providers to resume providing elective surgeries, subject to certain conditions. The decision to undo the prohibition was based, in part, on data from the Florida Department of Health that shows a downward trajectory of hospital visits for influenza-like illness and COVID-19-like syndromic cases, a decrease in percent positive test results, and a significant increase in hospital capacity since March 1, 2020. The data meets certain criteria outlined in President Trump’s Guidelines for Opening America Up Again and recommendations from the Task Force to Re-Open Florida.

Certain Conditions

Applicable health care facilities must meet the following four criteria to support elective surgeries:

  • The facility has the capacity to immediately convert additional surgical and intensive care beds for treatment of COVID-19 patients in a surge capacity situation;

  • The facility has adequate PPE to complete all medical procedures and respond to COVID-19 treatment needs, without seeking additional federal or state assistance regarding PPE supplies;

  • The facility has not sought any additional federal, state, or local government assistance regarding PPE supplies since resuming elective procedures; and

  • The facility has not refused to provide support to and proactively engage with skilled nursing facilities, assisted living facilities, and other long-term care residential providers.

Furthermore, Florida health care providers will be subject to any applicable rulemaking from the Agency for Health Care Administration and the Florida Department of Health.  

Impact

Many health care providers experienced a notable decline in revenue due to the cancellation of elective surgeries, a category which includes some of the more lucrative procedures for hospitals, and the majority or sole procedures for certain ambulatory care providers. As Florida providers resume providing elective surgeries, they may want to consider the following suggestions: 

  • Additional safety measures and precautions should continue to be observed, implemented, and applied, including the use of masks and other personal protective equipment, COVID-19 testing, separate treatment areas, increased cleanliness and janitorial services, observing and promoting recommendations for personal hygiene, and social distancing, where feasible.

  • Providing and billing for elective surgeries should be appropriately reconciled with respect to funds received pursuant to the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). Providers should review applicable terms and conditions, guidance, and requirements for the use of funds and loans received pursuant to the CARES Act.

  • Providers should remain prepared for restrictive measures to be re-implemented, as additional data and reporting is collected, and services are re-opened.

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 128

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About this Author

David Peck, Greenberg Traurig Law Firm, Fort Lauderdale, Corporate and Healthcare Law Attorney
Shareholder

David C. Peck is Co-Chair of the Life Sciences & Medical Technology Practice and works with emerging growth companies, established entities and private equity firms in executing their strategic plans. He assists companies beginning with corporate formation, obtaining and structuring both equity and debt financing, mergers and acquisitions, as well as the integration of acquired operations, undertaking initial public offerings, and continuing through to liquidity and exit strategies.

David understands the unique needs of high growth companies...

954-768-8265
Brittany E. Allison Associate Greenberg Traurig Fort Lauderdale Corporate Private Equity Health Care & FDA Practice Mergers & Acquisitions
Associate

Brittany E. Allison focuses her practice on health care and private equity transactions, including mergers, acquisitions, joint ventures, and other affiliations. She has wide-ranging experience working with clients across the health care continuum, including physician groups, health systems, and hospitals, as well as experience with trade associations and government agencies.

Concentrations

  • Asset purchase transactions

  • Stock purchase transactions

  • Membership substitution transactions

 

954-768-8228