New Mexico Register / Volume XXXI, Issue 23 / December 15,
2020
EXECUTIVE ORDER
2020-083
On March 11, 2020, I issued
Executive Order 2020-004, which declared a state of public health emergency
under the Public Health Emergency Response Act and invoked powers provided by
the All Hazards Emergency Management Act ("AHEMA ") and the Emergency
Licensing Act ("ELA"). That public health emergency was declared for
a period of 30 days. The President of the United States approved a Major
Disaster Declaration for the State of New Mexico on April 5, 2020. I have
renewed and extended the public health emergency in Executive Orders 2020-022,
2020-026, 2020-030, 2020- 036, 2020-053, 2020-55, 2020-059, 2020-064, 2020-073,
and 2020-80. That declaration is likely to be extended and renewed on an
ongoing basis for the foreseeable future.
The facts precipitating my
invocation of emergency powers under the AHEMA and ELA are well documented. On
December 31, 2019, several cases of pneumonia with an unknown cause were detected
in Wuhan City, Hubei Province, China, and repo11ed to the World Health
Organization ("WHO"). The underlying virus giving rise to those
rep011ed instances of respiratory illness was later identified as a novel
coronavirus disease which has been referred to "COVID-19." By the
time the first COVID-19 cases had been confirmed in New Mexico, on March 11,
2020, COVID-19 had already spread globally and throughout the United States.
Cases of COVID-19 and deaths related to COVID- 19 continue to proliferate at an
alarming pace. As of December 4, 2020 the WHO rep011ed nearly 64 million
worldwide infections and more than 1,490,000 related deaths. According to the
United States Centers for Disease Control and Prevention, more than 13.8
million people have been infected in the United States, including confirmed cases in
every state, with more than 272,000 related deaths. The numbers of reported cases and deaths are
continuing to increase exponentially throughout many parts of the world and in
many pa1ts of the United States. It is also highly likely that there are many
unreported cases and deaths.
The numbers have also risen
dramatically m our State since I declared a public health emergency. As of
December 1, 2020, the New Mexico Department of Health rep01ted more than 99,000
confirmed cases of COVID-19 in New Mexico and over 1,589 related deaths.
Since March 11, 2020, New Mexico
has seen multiple surges of COVID-19 cases in different areas of the state. In
October and November, 2020, the state has seen an unprecedented spike in
COVID-19 cases, deaths and hospitalizations in every region of the state.
Moreover, high test positivity rates in every region of the state suggest that
the actual number of cases is significantly greater than test results indicate.
Modelling performed by Los Alamos National Laboratory indicates that
hospitalizations will continue to increase significantly throughout the month
of December even if case counts begin to drop in December.
New Mexico is in the midst of an
urgent medical crisis caused by the COVID-19 pandemic which has strained the
ability of both institutional and individual providers to deliver the quality
of care New Mexicans generally, and reasonably, expect. Particularly for our
hospitals, this crisis - and the most recent surge of COVID-19 cases -has
created extraordinary medical circumstances that will severely handicap health
care workers in almost every kind of care they provide, and it will require
providers to change their normal perspective to a crisis perspective. Normally,
providers have an ethical and legal obligation to do whatever is in the best
interest of each of their patients; under crisis standards of care, providers
instead have an ethical and legal obligation to do what is best for everyone in
the state, not just what is best for their individual patients.
While healthcare providers are
always held to a legal standard that requires them to do what reasonable
providers would do under the circumstances, it is vital to realize that those
circumstances
are now determined
by factors which are unique in the public health history of the State of New
Mexico. While providers' adherence to their professional and ethical
obligations has precluded them from threatening not to work without additional
protection, they are deserving of our admiration and support. They cannot be
expected to do what no hU111an being reasonably can do.
Any standard of care applied to
assess the liability of providers offering healthcare during the period of the
declaration of this crisis must consider the fact that during this period there
will be an inadequate numbers of physicians, nurses and other healthcare
workers available given the nU111ber of cases; many providers work
substantially more hours than good practice would suggest under normal
circumstances; some providers must continue to work even when sick - and even
when sick with COVID-19 if treating COVID-19 patients; many essential clinical
services have been limited, postponed or discontinued because of the urgent
requirements of patients with COVID-19; much treatment has been delayed because
of strains on the systems in place for transferring patients from one facility
to another; many supplies are unavailable, or unavailable in amounts necessary
to provide adequate treatment under normal circumstances; many patients must be
treated without access to adequate medical records (or any medical records at
all), and without access to close faintly members who can provide information
and make decisions; many providers must provide care within the scope of
practice of their license but beyond their normal scope or practice; many
hospital facilities are in short supply and some are unavailable at some time;
medications are not fully available and some are not available at all; earlier
than recommended discharge of patients is common because of the desperate need
for inpatient facilities; care is limited by lack of adequate medical supplies
or PPE; procedures normally provided only to inpatients must be provided to
patients who have been discharged; and there will be a host of other
modifications of normal practice necessitated by the pandemic.
Further, the special
circumstances that must be considered when determining whether a provider met
the standard of care expected of that provider during a pandemic crisis are not
all-or- nothing circumstances which turn liability on and off. Rather, they are a continuU111 of
circumstances that begin to be significant factors when providers enter levels of care for which they have done contingent planning and continue to the
point at which crisis standards are in place, when the ordinary negligence
standard is virtually indistinguishable from a standard that would allow for
liability only upon a finding of gross negligence or reckless or willful conduct.
Due to the nature of the public
health emergency and the impact on medical resources, the State has convened a
group of experts in health, ethics, and law (referred to hereafter as "the
Medical Advisory Team") to, inter alia, address best practices in the
treatment and care of New Mexicans suffering from COVID-19. To that end, the
Medical Advisory Team has developed the "New Mexico Statewide Acute Care
Medical Surge Plan for COVID-19 Pandemic Response" (hereafter referred to
as the "COVID-19 Medical Surge Plan". The COVID-19 Medical Surge Plan
supplements New Mexico's 2018 Crisis Standards of Care, which address the
allocation of health resources during this public health emergency. Among other
things, the COVID-19 Medical Surge Plan identifies numerous markers that show
when hospitals move from normal (conventional) standards of care to lower and
higher levels of contingency care and eventually to the most acute of these
standards, identified as "Crisis Care" and occurs only "where
the demand for care surpasses resource supply despite contingency care
strategies. The normal standard of care cannot be maintained and allocation and
triage strategies must be implemented." Current projections indicate that
"Crisis Care" standards may need to be implemented over the next
several weeks and our State should prepare for that possibility.
Contingency care has already
been implemented in hospitals throughout New Mexico, requiring some healthcare
professionals to work outside their usual scope of practice. In addition,
hospitals throughout the State are coordinating care of patients and
transferring patients to facilities with available beds, staff and resources to
provide care. If "Crisis Care" standards are implemented, healthcare
professionals will be asked to assist in additional areas outside their scope
of practice and to provide support, in any way possible, with the treatment and
care of those infected with the COVID- 19 virus and to stretch limited
resources beyond usual and customary practice.
Providers have raised concerns about their legal protections when asked
to address the extraordina1y demands of treating New Mexicans with and without
COVID-19 during this heightened medical surge.
For these reasons, I find that
it is in the public interest to invoke ce1tain provisions of AHEMA and ELA to
ensure that physicians will not hesitate to respond and provide necessary
assistance as "Contingency Care" standards have been implemented in
many hospitals and in the potential event that "Crisis Care"
standards are brought into effect.
Therefore, for the reasons
above, I, Michelle Lujan Grisham, Governor of the State of New Mexico, by
virtue of the authority vested in me by the Constitution and the laws of the
State of New Mexico, hereby ORDER and DIRECT:
1. Pursuant to the authority vested in me by NMSA 1978,
Section 12-10-4, and in accordance with
NMSA 1978, Sections 12-10-4, 12-10-11, and 12-10-13, the New Mexico Department
of Health is hereby directed to undertake all steps necessary to credential
physicians and other licensed healthcare providers with authority under New
Mexico law to provide medical care independently and not under the supervision
of a physician ("advanced practice clinicians") who are providing
care to a person infected with the COVID-19 virus or providing care to a person
that a physician or advanced practice clinician reasonably believes may be
infected with COVID-19 virus. Such
physicians shall be identified as "COVID-19 Credentialed Physicians".
Such advanced practice clinicians shall be identified as "COVID-19
Credentialed Advanced Practice Clinicians". For purposes of this Order,
"physicians" include medical doctors and doctors of osteopathic
medicine. For purposes of this Order, "advanced practice clinicians"
include certified nurse practitioners (licensed by the New Mexico Board of
Nursing in accordance with NMSA 1978 § 61-3-23.2), certified registered nurse
anesthetists (licensed by the New Mexico Board of Nursing in accordance with
NMSA 1978 § 61-3-23.3), clinical nurse specialists (licensed by the Board of
Nursing in accordance with NMSA 1978 § 61-3-23.4), and certified nurse-midwives
(licensed by the Board of Nursing pursuant to the Nursing Practice Act and
licensed by the Department of Health as a certified nurse-midwife pursuant to
NMSA 1978 § 24-1- 3(R) and NMAC 16.11.2).
2. The Secretary of Health (the "Secretary")
shall designate physicians as "COVID-19 Credentialed Physicians" and
advanced practice clinicians as "COVID-19 Advanced Practice
Clinicians" based upon findings that: (1) the physician/advanced practice
clinician services will materially further the State interest in public health
and welfare and (2) the physician/advanced practice clinician possesses the
requisite skills and background necessary to provide care during the pendency
of the existing health emergency. The Secretary may weigh and consider any
additional factors the Secretary deems appropriate given the operative facts
and circumstances.
3. "COVID-19 Credentialed Physicians" and
"COVID-19 Credentialed Advanced Practice Clinicians" shall be
considered public employees for purposes of the Tort Claims Act when performing
the COVID-19-related duties for which they received that credential. NMSA 1978, §§ 41- 4-1 et seq. See NMSA 1978, § 12-10-4; NMSA
1978, § 12-10-11, and § 12-10-13.
4. I further order the Secretary to request the New Mexico
Medical Advisory Team to consult with hospitals throughout the State and make a
recommendation to the Secretary, based on criteria developed by the Medical
Advisory Team, if and when the New Mexico Medical Advisory Team determines that
it is appropriate for the Secretary to declare that the State should apply
Crisis Care standards.
5. The directives contained in paragraphs 1-3 within this
Order become effective and may be invoked only after "Crisis Care"
standards have been activated by the New Mexico Medical Advisory Team and upon
the Secretary's determination that such measures are necessary.
6. I further order the Superintendent of Insurance to take
action to ensure that healthcare providers continue to receive professional
liability coverage while providing health care services to patients under
standards for Contingency and Crisis Standards of Care as reflected in the
COVID-19 Medical Surge Plan and that patients are covered for treatment even if
it is received in a hospital outside the patient 's
health plan's usual provider network.
7. This Order supersedes any previous orders,
proclamations, or directives in conflict. This Executive Order shall take
effect immediately, and shall remain in effect for thi1ty (30) days.
ATTEST: DONE
AT THE EXECUTIVE OFFICE
THIS
4TH DAY OF DECEMMBER 2020
/ S
/ / S
/
MAGGIE
TOULOUSE OLIVER WITNESS
MY HAND AND THE GREAT
SECRETARY
OF STATE SEAL
OF THE STATE OF NEW MEXICO
MICHELLE
LUJAN GRISHAM GOVERNOR