To Our Valued Clients:
Yesterday, as you likely know, the Governor of California issued an Executive Oder (the “Order”) related to COVID-19 and directing all California residents to “immediately heed the current State public health directives” regarding COVID-19. The Order cited the Order of the State Public Health Officer which orders “all individuals in the State of California to stay home or at their place of residence except as needed to maintain continuity of operations of the federal critical infrastructure sectors…” The Order continued “[t]he federal government has identified 16 critical infrastructure sectors whose assets, systems, and networks…are considered so vital to the United States that their incapacitation or destruction would have a debilitating effect on security, economic security, public health or safety, or any combination thereof. I order that Californians working in these 16 critical infrastructure sectors may continue their work because of the importance of these sectors to Californians’ health and well-being.”
The US Department of Homeland Security issued a Memorandum identifying the essential critical infrastructure workers during the COVID-19 response. Quoting the President of the United States mandate, the Memo provides “[i]f you work in a critical infrastructure industry…such as healthcare services….you have a special responsibility to maintain your normal work schedule.” “Healthcare / Public Health” is specifically identified as one of the 16 critical infrastructure sectors. The Memo delineates which areas of Healthcare are included therein. Included, and relevant to my clients, are the following: (1) caregivers (e.g. physicians, dentists, nurses and assistants, etc.), and (2) workers in medical facilities (e.g. ambulatory surgery centers, home health care, and hospices).
From the review of the Public Health Order and Memo, the purpose of the critical infrastructure sectors is to provide continued care for the health of California residents, without interruption. While not explicitly stated, it is my interpretation that the Order does not apply to cosmetic procedures, med spas, and elective surgeries that are purely cosmetic in nature. This interpretation is based on the overall purpose of the Order and the critical infrastructure sectors. i.e. that the health of residents would be jeopardized without continued operation. To further support this, certain municipalities (e.g. Beverly Hills) have put a moratorium on cosmetic procedures. From a liability and insurance standpoint, a physician who performs cosmetic procedures in light of the Order may not covered by his/her professional liability carrier. The carrier may, and likely would, cite that the cosmetic procedure was prohibited at the time it was performed as a basis for excluding and denying coverage.
Providers and staff may continue providing services in the outpatient setting (e.g. surgery centers, clinic, medical offices) to the extent the purpose for doing so is to provide healthcare to patients that is not purely cosmetic in nature. This certainly would include ongoing treatments, post-operative visits and care, as well as procedures and surgeries that the provider deems are for the health and well-being of the patient. Further, support staff may continue in their current roles. All businesses must develop and implement a plan for social distancing and keeping visitors to a minimum.
I am continuing to closely monitor this situation as more information becomes available. We are also seeking to get additional clarification from the California Governor’s office. We will provide updates moving forward.
For more information contact:
Richard E. Haskin is a partner at Gibbs Giden. Mr. Haskin has a lengthy and impressive history as a litigator in commercial, construction, real estate, and general liability matters in both California and Nevada federal and state courts. His practice concentrates on all phases and legal aspects related to the formation, development, syndication, construction and operation of outpatient surgery centers and private medical practices. Mr. Haskin counsels outpatient surgery centers, medical clinics, private medical practices, and physicians. Mr. Haskin often serves as outside general counsel, serving client needs in several health care related areas, including regulation, compliance, and employment.