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Order of Public Health Emergency No. 2

Overview of Executive Order of the Governor and State Health Commissioner

Governor Ralph Northam and Dr. Norm Oliver, Commissioner of the Virginia Department of Health (VDH, issued today an Order of Public Health Emergency No. 2 in response to the COVID-19 disaster. The Governor has issued Executive Order 51, declaring a disaster related to COVID-19, and this Order is in furtherance.

Duration and Effect
This Order is effective March 25, 2020 and is in effect until April 24, 2020. The Order may be extended or renewed as the April 24 date approaches, depending on the COVID-19 status. Any patients you have elective procedures scheduled for during this time should be rescheduled.

The recent recommendation made by the VDA Board of Directors on practice closures due to COVID-19 was voluntary and did not carry the force of law. The Order is mandatory. This Order carries the effect of law. You must follow it.

Overview of Order
The Order applies to certain procedures and surgeries in the Commonwealth in an effort to reduce use of personal protection equipment (PPE) and has certain exclusions and parameters, addressed below. 

General Rule
The Order prohibits all inpatient and outpatient surgical hospitals, freestanding endoscopy centers, physician offices, dental offices, orthodontic offices and endodontic offices in the Commonwealth from providing procedures and surgeries that require PPE, which if delayed are not to be anticipated to cause harm to the patient or negatively effect the patient's health outcomes or leading to disability or death. There is no specific reference to offices of oral surgeons, nor ambulatory care centers, but the intent of the Order as articulated by the Governor's remarks in the press conference today, infers inclusion of these two practice settings.

This blanket prohibition is further emphasized in that the Order to provide that procedures or surgeries may be performed by health care providers if the delay or cancellation would result in the patient's condition worsening. Health care providers should be cautious not to interpret this emphasis as being a pathway to circumvent the prohibition in every case. 

Exclusions
There are exclusions from applicability of this Order. The exclusions include: 1) outpatient visits delivered in hospital-based clinics; 2) any family planning service or procedures; or 3) treatment of patients for "emergency" or "urgent needs." The word "emergency" and the phrase "urgent needs" are not defined in the Order. These are left to the appropriate clinical judgment of the dentist or oral surgeon consistent with the standard of care. 

Statutory Immunity
While not addressed in the Order, there are two statutes that protect dentists and all health care providers, responding during emergencies or disasters, such as COVID-19.

In 2003, the Virginia General Assembly passed 8.01-§ 225.01, which provides immunity for acts of simple negligence for the "abandonment" by a health care provider to a patient to whom the health care provider owes a duty.

In 2008, the Virginia General Assembly passed 8.01-225.02, which provides immunity for acts of simple negligence when a health care provider "delivers or withholds" health care to anyone in response to an emergency or disaster.

Read together, both statutes are intended to provide protection to health care providers as they make treatment decisions during times of emergencies or disasters. Note, neither statute provides immunity for willful misconduct or gross negligence.

Best Practices
As you navigate the applicability of this Order and these statues on your practice, with patients' best interest in mind, you are encouraged to document your thought process. If you are presented with clinical symptoms that prompt you to determine in your professional judgment that the symptoms "do" or "do not" constitute an emergency, document why and what options you considered.

Documentation of patient instructions and follow-up communications to monitor for worsening symptoms or new signs of infection are recommended.

Be mindful to consult your peers for second opinions. If you determine that an emergency does exist or clinical symptoms warrant a procedure or surgery to be performed, it never hurts to ask a peer what they think or what they would do. Then document, document, document.

Violation
Any willful violation or refusal, failure or neglect to comply with this Order is punishable by a Class 1 misdemeanor. A Class 1 misdemeanor is a criminal offense and is punishable by up to one year in jail or a fine of up to $2,500 per offense.

Virginia Board of Dentistry
Note: Nothing in the Order precludes the Virginia Board of Dentistry for taking appropriate actions against licenses relative to unprofessional conduct. Such action can be in addition to the criminal penalties imposed by a violation of this Order.

Please Note: As General Counsel to the Virginia Dental Association (VDA) I provide this analysis to VDA for the purpose of educating members. This memorandum is not considered to be legal advice, as the VDA is a tax-exempt organization put to 501 C(6) and cannot provide legal advice to members. Each member is encouraged to consult their own attorney regarding the impact of this Order.

​See the full executive order

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