As we enter week two of the White House’s issuance of guidelines urging all Americans to take steps for “15 days to stop the spread,” many physician practices, particularly specialty practices, are faced with a host of issues that they must address in the near-term. Below we discuss five things that physician practices need to do now in response to the novel coronavirus disease (COVID-19) public health emergency.
1. Limiting Non-Essential Services and Procedures
On March 18, 2020, Centers for Medicare and Medicaid Services (CMS) issued guidance to limit non-essential elective surgeries and medical procedures, including dental procedures, in an effort to conserve personal protective equipment (PPE) and protect patients and healthcare providers from exposure to the virus. The related press release notes that healthcare providers should encourage patients to remain home unless there is an emergency.
CMS also has stressed that “patients avoid travel, when possible, to physicians’ offices, clinics, hospitals, or other health care facilities where they could risk their own or others’ exposure to further illness.” Similarly, the Centers for Disease Control (CDC) guidance emphasizes rescheduling non-urgent outpatient visits as necessary, reducing face-to-face contact, and generally implementing methods to minimize the chance for exposure for both patients and practitioners.
Ultimately, at this stage, the final decision is left to the healthcare provider, barring any additional state or local guidance. In fact, the above-mentioned press release states that “the decision about proceeding with non-essential surgeries and procedures will be made at the local level by the clinician, patient, hospital, and state and local health departments.” Although current state level guidance mirrors the federal guidance in focusing on procedures that require PPE, the possibility exists that restrictions will eventually encompass other patient visits to physician practices, as officials continue to take measures to slow the spread of the virus. If such restrictions are put into place either at the state or federal level, exceptions will likely exist for services deemed essential, as is seen in the current federal guidance on surgeries and medical procedures requiring PPE. In states where a “shelter-in-place” or “stay-at-home” order has been issued, providers should be particularly cautious to provide only essential services.
In the interim, healthcare providers can make determinations by balancing the benefit of the purpose of the patient visit versus the risk of patient exposure to the virus and the use of PPE, and take steps described below to limit potential exposure.
2. Screen Patients and Employees Appropriately
The CDC recommends that providers ask patients with respiratory symptoms and a fever to contact the office prior to the patient’s visit. (See CDC Recommended Infection Control Procedures ) In addition, providers should establish triage protocols to screen patients for fever and respiratory symptoms before patients enter the office. If patients present with such symptoms, depending upon the purpose of the visit, the provider may: (1) implement appropriate measures to isolate the patient, such as using separate waiting rooms or (2) assuming the patient will not be medically disadvantaged by a delay in the appointment and the provider’s specialty is not capable to treat the patient’s respiratory illness, request that the patient reschedule the visit. We recommend that practices contact their medical malpractice carrier to make sure that any such measures would be covered should a future claim be alleged – it may be that the carrier has specific guidelines to be followed in order to warrant coverage.
Providers also should follow CDC guidance and instruct healthcare providers who develop symptoms of COVID-19 to stay home. Providers can screen employees who report to work for fever and other respiratory systems and instruct any employees who present with such symptoms to return home or, if warranted, report to the employee’s healthcare provider for treatment. Practices should ensure that any policies with respect to employee time off related to COVID-19 comply with labor and employment laws, as discussed below.
3. Consider Telehealth and Home Visits as an Option
Implementing or expanding telemedicine services is another tool available to physician practices that is encouraged by the CDC and other experts. Physician practices who are exploring their telehealth options should consider the legal risks and barriers outlined in our earlier alert highlighting best practices and legal considerations related to COVID-19.
As this crisis unfolds, federal agencies have begun to take steps to make implementing telehealth services more feasible and effective, including the following:
Additionally, several state governments, such as Connecticut, Ohio and Massachusetts, have issued orders or enacted emergency regulations to allow for the expansion of certain telehealth services. For further guidance on state-specific telehealth declarations or regulations, please contact the authors of this alert or any attorney in our Healthcare Practice Group.
4. Develop Strong Communication Plans
The CDC recommends that healthcare providers be proactive about communication with public health agencies, employees and patients during the COVID-19 public health emergency.
Between the Practice and Public Health Resources
Providers should review and develop plans to:
- Stay current on the local state of COVID-19, including monitoring updates from the CDC and state and local departments of health.
- Establish lines of communication with other healthcare providers and local public health resources.
- Maintain an emergency contact list and ensure all employees have access to such information.
Between the Practice and Employees
Providers should develop and implement plans for frequent and consistent communication with all employees with respect to the current status of COVID-19 in the community, the practice’s preparedness plan, and any changes to such plan.
Between the Practice and Patients
Providers should develop and implement plans to communicate with patients regarding changes to the practice’s policies and appointment procedures in connection with the virus. Such plans could include:
- Clear signage at the entrance to the practice, in appropriate languages, asking patients to call first if they have symptoms of a respiratory infection, asking patients to inform staff if they have respiratory symptoms and reminding patients about correct hygiene and cough etiquette.
- Phone calls to patients prior to appointments.
- Emails or other electronic forms of communication, when patients have consented to such methods of communication.
- Communication via the practice’s website and social media pages.
5. Consider Employee Hours Reduction, Leave and Furloughs
Reduced staffing needs or temporary closures
As state and local governments continue to pass orders mandating the temporary closure of certain non-essential business, healthcare providers may find themselves with severely decreased staffing needs. Many employers are placing employees on an unpaid furlough, which allows employees to remain on the employer’s benefit plans depending on the terms of the plan. If not, COBRA coverage would commence. An employer may allow an employee to use accrued PTO to pay for at least a portion of the furlough. Subject to applicable state law, the employee may be eligible to receive unemployment compensation for the unpaid portion of the furlough. Some employers also are choosing to provide paid leave for a limited amount of time to assist their employees during this difficult time. We are finding that physician practices that have employment agreements with providers that provide for compensation based on a percentage of collections or shift-based approach are more easily adapting to the “new normal” in the face of COVID-19 than those that have guaranteed salary compensation models. Absent a robust force majeure clause or willingness of the employee to reduce his or her hours and compensation, physician practices may find themselves in breach of these employment contracts if they do not honor guaranteed compensation for providers who are available to work, notwithstanding temporary office closures.
Employers also should consider the WARN Act and any applicable state mini-WARN laws that may apply in the event of a location closing, a group layoff, or a furlough lasting for an extended period of time. Generally, the federal WARN Act does not apply to layoffs lasting less than six months, and there is an “unforeseeable business circumstances” exception and “faltering company” exception that may relieve the employer from being required to provide WARN notice 60 days in advance.
Families First Coronavirus Response Act (FFCRA)
Last week, President Trump signed into law the FFCRA, which generally provides for two weeks of paid sick leave to employees for certain COVID-19-related reasons, as well as 12 weeks of FMLA leave for employees who cannot work (or telework) as a result of the need to care for a child under the age of 18 if the child’s school or place of care has been closed or the child care provider of such child is unavailable, due to a public health emergency. The FFCRA goes into effect on April 2, 2020 and expires on December 31, 2020. The Secretary of Labor has been empowered to issue regulations for good cause exempting employers with fewer than 50 employees when the imposition of the FFCRA’s requirements would jeopardize the viability of the business as a going concern. Also, employers of healthcare providers and emergency responders may elect to exclude such employees from the leave benefits of the FFCRA.