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Fast Moving Outbreak Shifts Regulatory Ground for Health Lawyers

March 24, 2020, 10:15 AM

Health-care attorneys are fielding tons of questions from their clients about how the industry is affected in the rapidly changing era of Covid-19.

Whether it’s telehealth or elective procedures, privacy protections or Covid-19 screening, Bloomberg Law has the top questions—and answers—from lawyers helping health-care professionals respond to the pandemic.

The Department of Health and Human Services’ Office for Civil Rights eased HIPAA’s privacy compliance requirements for health-care providers using telehealth platforms during the Covid-19 pandemic. In addition, the Trump administration has pledged to reimburse providers who use virtual patient care at the same rate as in-person care. What are the changes to the leniency and expandability of telehealth services?

“Under this expansion of use, health-care providers can use common video chat applications like Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Zoom, or Skype to provide healthcare services without the risk that OCR will impose a penalty for noncompliance,” said Savera Sandhu, a partner in Newmeyer Dillion’s Nevada office. “The thought behind it is to limit providers and other patients’ exposure to the virus. OCR is not limiting the use of such applications for the diagnosing and treatment for COVID-19 only but also any other medical issues to reduce the strain on limited office, staff, and equipment resources.”

Are there other limitations on telehealth that health-care providers should still be worried about?

“Although the federal waivers help, providers must still comply with state laws that may restrict telehealth, including those that may require an existing physician-patient relationship, provider licensure in the state, limit telehealth prescriptions, or require specific consents,” said Kim Stanger, a partner with Holland & Hart in Idaho. “Some states have suspended those state regulations pending the emergency. For example, Idaho suspended enforcement of its telehealth restrictions and encouraged providers to engage in telehealth.

“We are going through extraordinary circumstances,” he added. “It is not clear whether the applicable standard of care would be lowered for telehealth encounters. Providers should assume that the same standard of care that would apply to an in-person visit would apply to a telehealth encounter.”

What about when a client is a health-care provider but also an employer? How do they balance privacy and access issues with employee needs?

“First and foremost, keeping everyone in the office healthy is paramount,” said Bruce Armon, a partner in the Philadelphia Office of Saul Ewing Arnstein & Lehr. “Taking steps to minimize staff anxiety is critical. This includes potentially eliminating non-urgent patient visits and procedures, limiting the number of guests who can accompany a patient during a visit, and using telemedicine options where medically necessary and appropriate.

Must hospitals provide Covid-19 screening to patients in the emergency room?

“Not necessarily,” said Ann McCullough and Colleen Faddick, of Polsinelli’s Denver office. “This requires clinical judgment of trained professionals. The physician or other health-care professional who screens the individual may assess whether the person has symptoms that warrant further testing for COVID-19.”

“The CDC has published guidance on whom should be tested for COVID-19,” they added. “But a hospital is required to perform an adequate screening only within its capabilities. Currently, testing for COVID-19 is limited to those patients who fall within the CDC or similar protocols as there is a shortage of testing supplies such as swabs, and a limited number of labs doing the testing.”

May a hospital or other health care provider screen employees and visitors for potential exposure to Covid-19—for example, taking temperatures or requiring disclosure of any recent travel?

“Hospitals and other health-care providers can and should screen employees for symptoms of acute respiratory illness before entering the health-care facility, as recommended by the CDC and CMS,” said Lindsay Ryan, of Polsinelli’s Los Angeles office. “While health care providers should also document the screening results, employers should maintain all employee medical documentation confidentially and separate and apart from personnel records.

“For employers outside of health-care or with no direct patient contact who might have concerns about violating the ADA, the EEOC has updated their guidance to confirm that because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendance precautions, employers may measure employee’s body temperature,” she added. “However, the EEOC also cautions employers that ‘some people with COVID-19 do not have a fever.’”

How are health-care providers—like dentists—who perform elective procedures affected by Covid-19?

“On March 16, 2020, the American Dental Association recommended dentists nationwide postpone elective procedures for at least three weeks in order to concentrate on emergency dental care and alleviate the burden that dental emergencies would place on hospital emergency departments,” said Phil Kim, a partner with Haynes and Boone in Dallas.

If our clinic offers elective services, then do I need to remain open to the public?

“Most states allow (not mandate) ‘essential’ service providers to remain open,” said Paul Kim, an attorney with Cole Schotz in Baltimore. “Otherwise, providers of ‘non-essential’ services generally must either close their doors or appeal to the state. Therefore, if your clinic offers ‘essential’ services as determined by your state, then you may (but are not required to) keep your clinic open. However, if your clinic does not offer ‘essential’ services as determined by your state, then you must close your clinic.”

May hospitals or other clinics legally make their own “Do it Yourself” personal protective equipment, such as masks?

“CDC guidelines provide allowances for DIY PPE where supply shortages interfere with the availability of approved PPE and there are no other engineering or administrative controls that would eliminate the hazard to which employees are exposed,” said William Robbins, of Polsinelli’s Kansas City office. “The question remains whether OSHA will follow those same guidelines in deciding whether to cite an employer for violation of the PPE standards.”

To contact the reporter on this story: Valerie Bauman in Washington at vbauman@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Andrew Childers at achilders@bloomberglaw.com

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