COVID 19 Update: Minnesota’s Ban on Elective Procedures, Providers May Be Compelled to Donate or Sell Medical Equipment

In a previous blog post, Stoel Rives’ health care team discussed orders issued by Washington and Oregon that banned elective procedures in an effort to preserve the states’ supply of certain medical equipment. Minnesota has issued similar orders to ensure its healthcare facilities have adequate capacity and medical equipment to treat COVID-19 patients.

After banning non-essential surgeries and procedures, Minnesota has compelled certain providers and businesses to prepare an inventory of personal protective equipment (“PPE”), ventilators, respirators, and anesthesia machines (collectively “Medical Equipment”) that are not being used to provide “critical health care services or essential services.”¹ Providers were required to submit an inventory of their Medical Equipment online by March 25, 2020. Businesses who produced Medical Equipment for sale were excepted from this inventory submission requirement.

The chart below summarizes Minnesota’s ban on elective procedures and order preserving medical equipment:

Inquiry	Minnesota2
What is banned?	“All non-essential or elective surgeries and procedures, whether medical, dental, or veterinary, that utilize PPE or ventilators must be postponed indefinitely.” All Minnesota businesses, nonprofits, and non-hospital healthcare facilities must refrain from using “consumable equipment” (e.g., PPE, ventilators, respirators, anesthesia machines, etc.) other than for providing “critical health care services or essential services.”
Medical Equipment Confiscation?	Any “consumable equipment” not being used to provide “critical health care services or essential services” must either be donated at-will, or providers should be prepared for the possibility of being compelled to donate or sell such excess equipment in the future.
Are there any exceptions?	Nursing homes, and any facilities that provide inventory information to the “MnTrac System” are not subject to the order compelling preservation of Medical Equipment (Order 20-16), but such facilities must comply with the order banning elective procedures (Order 20-09).
Who must comply?	For the order banning elective procedures, no express parties are listed. Arguably all individuals or entities that perform “non-essential or elective surgeries or procedures” must comply with that order. For order compelling preservation of Medical Equipment, all businesses, non-profits, and non-hospital health care facilities (including veterinary and dental providers, research and higher learning institutions, construction businesses, etc.) must comply.
For how long?	Both orders will expire if the peacetime emergency ceases or when the respective order is rescinded.
Miscellaneous Information	A non-essential surgery or procedure is one “that can be delayed without undue risk to the current or future health of a patient.” Non-exhaustive factors include: (a) threat to life if surgery is not performed; (d) “threat of permanent dysfunction of an extremity or organ system, including teeth and jaws;” (c) “risk of metastasis or progression of staging;” and (d) for veterinary medicine, threats to public health, and to the health/safety of the animal’s owner (e.g. service animals) and the animal.
Penalties	Willful violators of the order prohibiting elective procedures are guilty of misdemeanor, and upon conviction may be fined no more than $1k or imprisoned no more than 90 days.

Order compelling preservation of Medical Equipment does not expressly define certain key terms such as “consumable equipment,” “critical health care services,” or “essential services.” We anticipate lack of such information may lead to confusion among providers as to the scope of the order. Additionally, Minnesota has chosen not to expressly except certain procedures from its order banning elective procedures, thus the onus is on the providers to determine what procedures are essential.

While “essential” is not defined, the term “non-essential elective surgeries or procedures” is defined in the order banning elective procedures (as discussed above). Providers may rely on this definition to infer what procedures are “essential.” Nonetheless, more guidance is needed to fully understand what equipment in the provider’s inventory is subject to future donation or sale. Specifically, providers may need clarification regarding whether “consumable equipment” includes equipment other than PPE, ventilators, respirators, or anesthesia machines. If Minnesota compels providers to “donate” the equipment, then constitutional issues may arise as to whether such a donation amounts to a “taking” and whether providers may have a constitutional right to receive just compensation.

These ambiguities may make it challenging for providers to comply with the orders. Nonetheless, providers in Minnesota may choose to consider the following compliance measures:

1. To the extent that the services being provided squarely qualify as “essential” procedures (i.e. procedures that cannot be delayed without undue risk to the current or future health of the patient) (“Eligible Services”), providers likely don’t need to get special permission to continue providing such services; and
2. Providers who are continuing to provide Eligible Services should:
   1. document on the provider’s website, client facing documents, and/or signs that the provider is complying with the order banning elective procedures and limiting services;
   2. document in the patient’s medical record that the procedure being performed is “essential” and provide a written explanation regarding why the procedure is “essential” (i.e. current or future impact on the patient’s health if the procedure was delayed); and
   3. maintain a detailed inventory of the equipment used to provide Eligible Services, and regularly track the consumption against the provider’s total equipment inventory to determine how much, if any, is “excess” equipment that may be subject to a compelled donation or sale.

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¹ MN Governor’s Executive Order 20-16.

² MN Governor’s Executive Order 20-09, 20-16, 20-17, 20-20.