Michigan’s Chief Medical Executive Clarifies Executive Order Restricting Non-Essential Procedures

On May 3, 2020, the Michigan Department of Health and Human Services’ Chief Medical Executive and Chief Deputy Director for Health, Joneigh S. Khaldun, M.D., published a letter to Michigan clinicians clarifying Governor Whitmer’s Executive Order 2020-17, which imposes temporary restrictions on non-essential medical and dental procedures for certain Michigan facilities while the state of emergency declared in Executive Order 2020-4 is in effect.

In her letter, a copy of which can be accessed here, Dr. Khaldun provides guidance on determining necessity of care under Executive Order 2020-17 and how clinicians can begin to reengage with patients for important care, especially in light of the recent plateau in the number of cases of COVID-19 across Michigan.

Importantly, Dr. Khaldun makes clear that the language outlining the temporary restrictions under Executive Order 2020-17 was purposely flexible, intentionally preserved clinical judgment, and gives providers “broad discretion” when determining “which patient services can be safely delayed without resulting in a significant decline in health.” While not legally binding, Dr. Khaldun’s letter implies that the State of Michigan will not second guess a clinician’s reasoned clinical judgement as to what medical or dental procedures are necessary to address a medical emergency or to preserve the health and safety of a patient.

To help guide Michigan clinicians in their efforts to safely reengage with patients within the scope of Executive Order 2020-17, Dr. Khaldun offered various specific guidelines and principles for medical providers to consider. Of particular note, Dr. Khaldun recommends the following:

1. Limiting in-person contact as much as possible and implementing best practices for infection prevention and control. This includes maximizing the use of telehealth, eliminating or reducing waiting room time, providing surgical masks to patients and visitors, performing frequent cleanings, and categorizing patients based on risk for COVID-19 exposure and potentially reserving specific days for seeing high risk patients.
2. Systematically prioritizing in-person appointments for the most vulnerable patients and stratifying care to be provided based on urgency or need.
3. Reassuring patients of appropriate safety measures, utilizing diagnostic testing for COVID-19 when available and as appropriate, and providing appropriate PPE for staff and patients.
4. Assuring appropriate surge capacity and developing plans for incrementally reengaging patients, assuring adequate equipment and supplies, and reacting to a potential sharp rise in COVID-19 cases.

It is noteworthy that while Dr. Khaldun’s letter provides clarity, it does not undo any current restrictions in separate Executive Orders issued by Governor Whitmer. For example, Executive Order 2020-72, which remains in effect through May 31, 2020, still requires that all health care facilities and residential care facilities perform a health evaluation on all individuals that are not under the care of the facility each time an individual seeks to enter the facility. This would apply to all patients, visitors, and employees. Therefore, while Dr. Khaldun’s letter is insightful, it is also important to be mindful of the contents of all current Executive Orders and how they impact efforts to reengage with patients.