Recommendations for every practice to consider.
There have been numerous videos shared on social medial of individuals entering businesses and refusing to wear a required mask. This has happened at restaurants, stores, and is becoming a common occurrence at dental and medical practices. Whether or not this scene has played out yet at your practice, you should be training your staff on how to best respond when, and if, it does occur.
In many states, masks are currently mandated by law. Additionally, they are recommended by OSHA, CDC and all medical specialty organizations. Whether or not you personally believe masks should be worn, it’s important to know that the wearing of masks, and other recommended precautions, will minimize liability for your practice if a claim is brought against you by a patient or employee who is exposed to COVID-19.
Every practice must consider the steps that will be taken if a patron refuses to wear a mask or to comply with other precautions put in place, such as social distancing, waiting outside the office to be called, or having their temperature taken. The following are some recommendations that I make to my clients on how to best prepare for a possible run-in with an uncooperative patient:
Practice protocols should be posted on the practice website and provided to patients via email, messaging and/or a call made to patients before their appointment. Patients need to know what to expect when they arrive at the practice and to understand that they will not be seen if they find the guidelines unacceptable. This will allow patients to cancel/reschedule an appointment or to seek services elsewhere if they cannot agree before they show up at the practice office.
Contacting patients in advance of their established appointment is also advisable, in order to be sure the patient is not known to be positive for COVID (unless COVID patients are being treated in the practice) and does not have any COVID-19 symptoms. In particular, patients can also then be reminded to bring a mask with them to the appointment. Most importantly, the practice can create a dialogue with patients at this time if the patient legitimately believes they have a medical condition that prevents the wearing of a mask. Physicians can work with patients on legitimate concerns and find a way for them to visit the practice for care in a manner that will not jeopardize other patients or employees, such as after hours.
Most practices are asking patients a series of COVID-19 questions, taking the patient’s temperature and asking patients to clean their hands/use sanitizer. To the extent that a patient has not brought a mask, the practice should have masks available for patient use. I recommend to my practices that this interaction with patients occur outside the front door of the practice or within an inner lobby, if possible. Some practices even go to the patient’s car outside. While the goal is to prevent patient congregation, this also helps prevent a patient from creating a scene in the waiting area where others are present.
Patients should be firmly reminded that they were told that a mask would be required to enter the practice. Patients can be asked if they would like to reschedule their appointment for another day when they are willing to wear a mask. There should be no exceptions made to allow a patient to enter the practice without a mask. This is a mistake that many practices make to avoid a scene. However, it is important that the policy of the practice be firmly observed. Some practices designate a particular person to be called if a patient creates a scene (such as practice manager or physician leader). Having a chain of command can be reassuring to staff who may not be comfortable handling a difficult patient.
Patients have been known to spit, break things, scream, physically touch others and otherwise engage in unacceptable behavior. It is important that either the number for security of the building or 911 be called as needed. Remember that if the practice does record the events, the patient’s identity is considered protected by HIPAA and thus it should not be shared on social media. Based on events that occur, it may be needed for law enforcement.
Although I have yet to see this used at a medical practice, it should be clear that there is no exception to wearing a mask unless a specific condition has been discussed with a practice physician (in which event other precautions can be taken). Be aware that there are laminated cards being presented from a non-existent government organization that would “exempt” people from wearing masks due to claims of HIPAA and/or ADA violations. These are not real cards and these are not real legal violations. A practice is required to accommodate only the reasonable needs of their patients, which is handled by having a patient speak with a physician in advance of any medical concerns, and working with the physician to find a plausible solution. Of course, patients can always wait to seek services in many cases or find a less compliant practice to visit if the medical services are not medically necessary or emergent. Patients do not generally have a right to demand or receive services from any particular practice or physician.
Such claims are scare tactics and bullying. A lawyer who has done their research will know that a business is well within its rights to generally set the standards under which it will provide services, and to deny services to those who do not comply with reasonable accommodations. “No mask” can mean “no service” in your practice.
Training your staff and planning in advance will minimize the possibility that patients will react poorly to meeting minimum standards of precaution. Protecting providers, employees and other patients of the practice must be the priority at all times!
Ericka L. Adler, JD, LLM has practiced in the area of regulatory and transactional healthcare law for more than 20 years. She represents physicians and other healthcare providers across the country in their day-to-day legal needs, including contract negotiations, sale transactions, and complex joint ventures. She also works with providers on a wide variety of compliance issues such as Stark Law, Anti-Kickback Statute, and HIPAA. Ericka has been writing for Physicians Practice since 2011.