Updated October 7, 2022: On September 23, the Centers for Disease Control lifted its recommendation for mandatory universal masking in all healthcare settings. Medical and dental practices can now determine for themselves, based on transmission levels within their community, whether to require the wearing of masks for staff and patients within their office setting.
While COVID restrictions have been lifted in most parts of the country and vaccination efficacy continues to decline, healthcare professionals must continue to monitor SARS-CoV-2 variants circulating within their communities. Practices can monitor community transmission levels by county through the CDC’s COVID Data Tracker.
According to the CDC, SARS-CoV-2 “is constantly changing and accumulating mutations in its genetic code over time. New variants of SARS-CoV-2 are expected to continue to emerge. Some variants will emerge and disappear, while others will emerge and continue to spread and may replace previous variants.”
The FDA approved new “updated boosters” on August 31, 2022. These new bivalent vaccines will target current BA.4 and BA.5 variants, in addition to the original coronavirus seen in 2019 and 2020. To learn more about the updated boosters, see the FDA’s news release, “Coronavirus (COVID-19) Update: FDA Authorizes Moderna, Pfizer-BioNTech Bivalent COVID-19 Vaccines for Use as a Booster Dose.”
As we re-enter flu season, practices must remain mindful that they may continue to see both SARS-CoV-2 infections and the flu within their office settings. Once again, medical and dental offices must continue to monitor the situation.
CDC Safety Guidelines and Provider Liability
On September 23, 2022, the CDC updated its recommendations for infection prevention and control for healthcare personnel. The CDC updated their guidance “to reflect the high levels of vaccine-and infection-induced immunity and the availability of effective treatments and prevention tools.”
Currently, the CDC shows that the rate of hospital admissions continues to trend downward from January’s peak by a noteworthy 84.3 percent. As new variants emerge, it is possible for community transmission to surge and for hospital beds to be in short supply once again.
Liability becomes a concern for healthcare providers if treatment of non–COVID-19 patients is delayed due to affected hospitals and emergency rooms. Invariably, the question becomes: Did the hospital comply with community standards regarding access and delivery of services? Following an adverse event—when plaintiff’s counsel would attempt to prove that the facility failed to follow what other similarly situated medical centers did in the same or similar situations—much would depend on whether the hospital complied with CDC guidelines and executive orders then in effect.
As communities around the country face potential new subvariants while simultaneously lifting restrictions for public health, what are the latest considerations for keeping patients and staff safe within medical and dental office settings? Consider the following strategies.
Managing the Unvaccinated
According to the CDC’s “COVID Data Tracker,” vaccination rates across the U.S. have slowed over the past months as restrictions have been lifted. As of October 6, 2022, 79.7 percent of the U.S. population had received at least one dose of the COVID-19 vaccine, while 68 percent (225.9 million) have completed the primary series as defined by the CDC. For those age 65 and over, 95 percent have received one dose, while 92.6 percent of Americans in that demographic have completed the primary series. For boosters, 48.9 percent of those who completed the primary series have received first boosters (110.6 million), and 71.3 percent of those age 65 and older have received first boosters since August 13, 2021. Second booster doses are substantially lower, with 37.9 percent for those over 50 years of age and 45.2 percent for those over 65 years of age. Since compliance with booster injections has dropped in recent months, healthcare providers must continue to have meaningful discussions with patients about vaccines and to provide them with fact-based information.
Many practices continue to ask, “How do we handle our unvaccinated patients?” While some read “unvaccinated” as shorthand for “antivaccine” or “against the COVID-19 vaccine,” in fact, the unvaccinated population includes adults and children with certain medical conditions, as well as young children not yet eligible for a COVID-19 vaccine. Admittedly, however, most provider questions about unvaccinated patients pertain to those who are eligible for a COVID-19 vaccine but have declined it for various reasons. Many parents with young children and adolescents, for example, fail to seek the vaccine due to its novelty.
Consider why a patient is not vaccinated. Some patients who are members of Christian Scientist, Jehovah’s Witness, Seventh-Day Adventist, Orthodox Jewish, or other religious communities may decline a vaccine on those grounds. Others may decline the vaccine due to concerns about its efficacy, potential side effects, and adverse events.
Therefore, in addition to conducting patient visits via telemedicine when appropriate, practices might consider other options for seeing unvaccinated patients. One option is maintaining the office policies and practices for infection control that were in effect before vaccinations became available while considering community transmission levels. These include the use of drive-through visits, pre-examination questions and screening, masking by patients and staff, social distancing, and disinfecting patient care areas frequently. Another option is designating one exam room only for the treatment of unvaccinated patients by fully vaccinated clinicians wearing personal protective equipment (PPE), while maintaining rigorous screening for patients entering the facility. Alternatively, unvaccinated patients might be seen only during certain hours, such as at the beginning or end of the day. It is not recommended that practices follow a blanket policy of refusing to see unvaccinated patients. (For more on this topic, see the suggested recommendations in the “Staying Diligent” section below, or read our article “FAQs About COVID-19 Vaccinations.”) Evaluate individual patients for risk, acuity, and treatment options.
Masking is no longer mandated in all states, and the CDC no longer requires universal masking in healthcare settings for patients and healthcare workers. Hospitals and out-patient settings are making them optional depending on local transmission rates. Should it become necessary to require masking once again within a specific community, practice staff who are responsible for making in-office patient appointments will need to communicate patient expectations for established infection-control protocols prior to the patient’s arrival in the office.
For patients who are sick, immunocompromised, and are in close proximity to one another, the wearing of masks continues to be clinically prudent. Continue to make masks available to these patients.
Vital Pandemic Recordkeeping
Continue to maintain records of staff-patient contact (i.e., who was assigned to work with the patient), either in a log or in the EHR. Document so that you can track and notify contacts in case of a COVID-19 diagnosis or probable exposure of the patient or provider.
To further protect your practice, document administrative records of community transmission rates and current protocols and updated policies followed by your office. Considerations may include records of PPE supplies/shortages, cleaning protocols followed, communications with patients, case incidence, and available medical and dental resources within your community. Documentation that you have taken steps to follow recommended infection-control protocols may be your best defense if litigation related to COVID-19 should occur in the future. For more details, see our article “COVID-19 Administrative and Medical Record Documentation: Prepare for Future Lawsuits.”
- Vaccine Distribution: With vaccines being readily available within most communities (e.g., from local pharmacies and grocery chains), evaluate your patients’ access to the vaccine and make plans to determine how your practice would handle administering vaccines, should this be a consideration. Many medical practices are partnering with state and local governments to provide vaccine clinics within the community, particularly in rural areas. For those interested, the Office of the Assistant Secretary for Preparedness and Response provides information to become a vaccine provider.
- Informed Decision Making: As the rollout of COVID-19 boosters continues across the U.S., medical and dental practices should implement plans to educate patients and guide them to an informed decision about the vaccines available within their community. Vaccine fact sheets for recipients and caregivers are available through the Food and Drug Administration (FDA) website: Pfizer-BioNTech, Moderna, Novavax, and Janssen (Johnson & Johnson). The CDC also provides easy-to-understand fact sheets for patients on its website: “Benefits of Getting a COVID-19 Vaccine”and “Myths and Facts about COVID-19 Vaccines.” For additional information, see The Doctors Company “Communicating With COVID-19 Vaccine-Hesitant Patients: Top Tips.”
- Vaccine Administration: If your practice is designated as a vaccine administration site, establish policies and procedures for storage and inventory, scheduling and patient screening, patient education, documentation, patient follow-up, and managing medication errors and emergencies. If you are assigned a state-sponsored vaccination team to administer vaccines on your behalf within your facility, review the state’s protocols to ensure safe practices, and inform patients that the vaccine administration is being conducted by the state. The CDC provides guidance on vaccine storage and handling best practices, a training module for healthcare professionals, and reference material for training and education, as does the World Health Organization (WHO) through its online training. The FDA offers fact sheets (Pfizer-BioNTech, Moderna , Novavax, Janssen) for healthcare providers administering the different vaccines under emergency use authorization and gives information on vaccine administration, safety, storage, informed consent, and reporting adverse events specific to the manufacturer’s vaccine. Other resources include the CDC’s patient screening tool and The Doctors Company’s “FAQs About COVID-19 Vaccinations.”
- Reimbursement: See the Health Resources and Services Administration’s “What Providers Need to Know About COVID-19 Vaccine Fees and Reimbursements.”
The following recommendations will assist in ongoing screening and management of suspected COVID-19 patients in your practice:
- Legislation and Guidance: Reference the CDC, your state licensing board, professional societies, and federal, state, and local authorities daily for public health guidance and new legislation, as even now, the situation continues to be fluid. Monitor for outbreaks of COVID-19 cases within your community. Stay on top of current trends to protect your patients and your practice.
- Infection Control Protocols for the Office Setting: Per the CDC, The updated Interim Infection Prevention and Control Recommendations for Healthcare Personnel During the Coronavirus Disease 2019 (COVID-19) Pandemic provides specific instructions for healthcare facilities based on community transmission levels and healthcare settings (medical and dental).
- Screening Criteria: Follow the CDC’s 3-criteria screening process for those entering your office setting: 1. A positive viral test for SARS-CoV-2; 2. Symptoms of COVID-19; and 3. Higher-risk exposure (for healthcare personnel (HCP). Check the CDC website regularly for any updates to screening criteria. Assess visitors to your facility for symptoms and contact exposure and direct them to remain outside if COVID-19 infection is suspected.
- Comparing COVID-19 and the Flu: Both the flu and COVID-19 are respiratory illnesses and can present in similar ways. For further guidance, see our article “Flu or COVID-19? Convergence of Two Viruses Creates Risk of Diagnostic Errors.”
- Accepting Patients: It is strongly recommended that practices not turn away patients who are not fully vaccinated or simply because a patient calls with acute respiratory symptoms. Triage all patients over the phone or via telemedicine and manage them according to CDC recommendations. Refusing assessment/care may lead to concerns of patient abandonment.
- Designated Triage Location: To limit exposure in your facility when transmission levels are high, check with your local public health authorities for locations designated to triage suspected patients. Community emergency preparedness plans would be activated so that parties are coordinating efforts to deliver effective public health intervention.
- Telehealth Triage: For communities with high transmission rates, the CDC recommends alternatives to face-to-face triage and visits, particularly for high-risk patients, if screening can take place over the phone, via telemedicine, through patient portals or online self-assessment tools, or through a designated external triage station. Licensed staff should be trained in triage protocol to determine which patients can be managed safely at home versus those who need to be seen at the office or at a designated community facility. The CDC provides a “Phone Advice Line Tool” with recommendations for children ages two to 17 or adults (≥18 years) with possible COVID-19. The Doctors Company offers resources on telehealth.” For a list of telehealth COVID-19 rules by state, see State-by-State Emergency Telehealth Information from the Federation of State Medical Boards (FSMB).
- Patient Testing: Medical and dental practitioners should determine which patients require testing based on presenting symptoms, history, contact exposure, community transmission of disease, and for early identification in special settings (such as nursing home admission or elective surgery). See the CDC’s “COVID-19 Testing: What You Need to Know” and “Overview of Testing for SARS-CoV-2, the Virus That Causes COVID-19.” The CDC provides instructions for reporting COVID-19 cases. Dial and ask for the Clinician Call Center.
- Elective Services: If cases of COVID-19 trend upward within your community, check with regional health authorities on the provision of nonessential and elective healthcare visits and group-related activities. States and counties vary depending on the number of cases, availability of PPE, and availability of hospital beds. For diagnostic and therapeutic interventions, including surgery, the CDC provides “Managing Healthcare Operations During COVID-19.” The American College of Surgeons (ACS) has also published “Clinical Issues and Guidance” on triage and management of surgical cases, including specialty guidelines. Some states may reinstate restrictions on the provision of nonurgent, elective surgeries and procedures. (See the FSMB’s “COVID-19 Related Legislation.”) In some states, violations may result in fines or complaints to the medical or dental board. Check with state and local regulatory agencies for any related mandates.
- Office Messaging: Post front-door signage requiring patients and visitors who are exhibiting COVID-19 symptoms or who have had contact exposure to immediately notify facility personnel by telephone for instructions on accessing care. (See the CDC’s “Symptoms of COVID-19.”) Include information on the practice website regarding office policies for appointments, telephone assessment/telemedicine, and visitors. Also, post COVID-19 resources for patients with a reminder to maintain physical distance, wear a face mask if exhibiting symptoms of cough, and follow local orders to lessen community spread.
- Physical Distancing: The CDC still recommends physical distancing within healthcare facilities. Require patients and staff to sit at least six feet or more apart. Patients can be asked to wait in their vehicle if that option is possible. Reconfigure seating as needed. Remove magazines and toys from the waiting room. Disinfect the waiting room routinely throughout the day. Develop a cleaning schedule and checklist for your facility, and document in administrative files that it is followed.
- Limit Exposure: Limit staff exposure to suspected COVID-19 patients by keeping the exam room door closed. Ideally, the designated exam room should be at the back of the office, away from other staff and patients. Only employees should interact with these patients.
- Surface Disinfection: Disinfect surfaces once the patient exits the room. Ensure that participating staff members continue to wear PPE. For general guidance, see the CDC’s “Cleaning and Disinfection of Environmental Surfaces.” For information about cleaning agents, see the Environmental Protection Agency’s About List N: Disinfectants for Coronavirus (COVID-19)."
- Dental Office Considerations: The CDC’s” latest recommendations apply to all healthcare settings, including dentistry. Continue to screen patients for coronavirus symptoms and postpone nonurgent dental care if the patient has tested positive at home or is symptomatic for COVID-19. Urgent febrile patients may be seen if the fever is suspected to be due to a dental condition, but the dentist should make this determination. Continue to follow the most current PPE guidelines as defined by the CDC and Occupational Safety and Health Administration (OSHA). Periodically review state health department COVID-19 guidance and county infection rates. Devices such as ultrasonic scalers, high-speed dental handpieces, and air/water syringes produce aerosols during use, creating additional exposure risk for clinicians. The CDC recommends additional precautions, such as four-handed dentistry, high-evacuation suction, and the use of dental dams during these procedures to reduce the risk of droplets. Participating staff should wear NIOSH-approved N95 masks or higher-level respirators in areas with high rates of coronavirus transmission. Review the CDC’s setting-specific guidelines for dentistry in their entirety (scroll down to “Dental Facilities”).
- Patient Education: Refer to CDC resources for providing suspected COVID-19 patients and their close contacts with up-to-date, factual information about the virus. Provide information about how to follow infection-control practices at home, such as in-home isolation and quarantine, hand hygiene, cough etiquette, waste disposal, and the use of masks. Remind patients and their families to access information about the virus through reputable sources such as the CDC, not through social media.
- Provider/Staff Exposure: Encourage vaccination among your staff. Screen healthcare personnel daily for symptoms/contacts relevant to COVID-19. Any unprotected occupational exposure by staff members should be assessed, monitored, and documented in administrative files. See the CDC’s “Interim Guidance for Managing Healthcare Personnel with SARS-CoV-2 Infection or Exposure to SARS-CoV-2.” If any providers and/or staff test positive within your facility, conduct and document a risk assessment identifying contacts, type of interaction, and PPE in use, then contact local health authorities for additional instruction. The CDC provides guidance under the section “Infection Control” for management. Disclosure to patients may be necessary depending on the type of exposure that occurred, if any, but always take necessary steps to protect the privacy of the infected employee. Telephone calls directly to patients are the most efficient method of notification, followed by a letter. Suggested notification includes, “We are calling to inform you that someone in our office tested positive for COVID-19 on the day of your visit...” followed by recommendations for assessment and any needed follow-up. If deemed necessary, your local health department may assist with patient notifications. Contact your patient safety risk manager at The Doctors Company, as needed, for additional guidance. For return-to-work guidance, review the CDC’s “Return to Work Criteria.”
- Staff Training: Assess the need for additional staff training to review screening and triage protocols, patient management, use of PPE, patient communications, and any revision in policies and procedures that have been made to adapt to the evolution of the virus. Document all training provided to staff and maintain records in administrative files.
- Team Briefs: Conduct daily staff briefs/huddles and end-of-day debriefs. These provide all staff with opportunities to discuss issues anticipated during the day and identify concerns, pre- and post-clinic, including COVID-19 updates. (See The Doctors Company’s on-demand course, TeamSTEPPS® Teamwork Training in the Office Practice, and the Agency for Healthcare Research and Quality’s TeamSTEPPS Fundamentals.) Acknowledge the need to provide emotional support to staff who may be dealing with fear or other stressors by making employee assistance programs or other support mechanisms available. Communicate resources to employees.
Managing Legal Risks
According to the COVID-19 Dashboard by the Center for Systems Science and Engineering at Johns Hopkins University, the influx of variants in the U.S. will continue to present unique challenges. Government authorities in some states may mandate additional restrictions of public activities, while other states will likely maintain unrestricted business operations. Medical and dental offices will continue to face multiple challenges, including CDC recommendations for operation, vaccinations, managing sick employees, and providing “catch-up” care for patients who had clinical services postponed while offices were closed or put off contacting healthcare providers because of fears.
The bottom line: Even with the availability of the vaccine, medical and dental practices must not become complacent or be less vigilant. Because the virus continues to be a moving target, all healthcare providers and facilities must remain well-informed and current on public health guidance for screening protocols and patient management, as well as regulatory requirements affecting their practices. Continued careful screening with a bias for suspicion that a patient might have COVID-19 will serve healthcare providers well in this situation.
As the pandemic moves forward, we emphasize that the key to future litigation defense is keeping office policies and procedures current while following recommended guidelines and documenting adherence (in both administrative files and medical and dental records).
The dynamics surrounding the virus will continue to evolve, particularly with the potential spread of variants this winter and as the population’s vaccination status evolves. What does not change is that healthcare providers and care teams must remain vigilant and adapt their practices accordingly. Remain exceptionally proactive in asking the right questions, documenting interactions, rigorously following protocols, and keeping abreast of emerging insights and data as they become available from the CDC.