Re-Opening During the Half-Life of a Pandemic

Peter Martin, Esq.

The virus known as SARS-CoV-2 is among us and will remain with us always. As the disease caused by that virus ceases to be a pandemic and the virus itself becomes part of the background viral environment, health care providers need to integrate that new reality into their office operations and practices. Keeping in mind potential disease variants and resurgences, practitioners are being forced to re-evaluate a great number of practice issues, some new and some appearing in a new light or with new urgency. What follows is a high-level scan of some of these issues, offered as a guide to stimulate consideration and further action.

The Patients How to encourage patients who may be reluctant to return to the office even for routine care will be an ongoing issue. As always, practitioners are well-advised to listen closely to their patients and family members to understand their concerns and to respond with clear, concise information about health and safety protocols that will deal with patient anxieties as they evolve with the disease’s prevalence. Practitioners should also review which patients have skipped routine visits and reach out to those patients to encourage their return to the office for ongoing care.

Telehealth services have been widely adopted where appropriate and will likely continue. Given that fact, providers should review patient consent documents to ensure that patients are informed of the availability, risks, and benefits of such new treatment forms. The continuing availability of the telehealth option will also require providers to make individualized determinations about the appropriateness of recommending telehealth versus face-to-face treatment modes to patients.

It is likely that patients will continue to find comfort in the obvious presence of hygienic supplies and distancing practices at the office, as well as common practices as asking for cell phone numbers for contact tracing purposes and maintaining logs of office visitors. It is possible that providers will find it advisable to maintain such practices and procedures even after they appear strictly required by COVID-19; they may become expected precautions during the annual flu season, for example.

The Staff Ongoing compliance with state, CDC and OSHA guidance regarding employment setting safety and health practices will, of course, be required as those rules change over time, requiring ongoing monitoring of the latest issuances of applicable state and federal guidance documents. Certain of these practices may endure even after no longer being required, such as asking staff to do self-screening prior to arriving at the office, re-arranging shifts to minimize the total number of staff in the office at any given time, and adopting new remote working policies and procedures.

Providers who have been paid on some form of productivity basis may seek some form of adjustment to their compensation due to an inability to meet bonus thresholds due to no fault of their own. Obviously, a practice’s response is going to be primarily governed by the specific contractual terms that establish incentive compensation. Practices may want to review those agreements for fairness and flexibility in anticipation of future pandemics and similar events.

The extraordinary costs of COVID-related unemployment claims are paid through the Massachusetts Unemployment Trust Fund; given that Fund’s resultant multi-billion-dollar deficit, Massachusetts employers are and will continue to experience a significant increase in unemployment insurance tax rates in 2021 and beyond. This increase should be factored into practice budgets currently and for the foreseeable future.

For those practices with staff members who formerly commuted from other states who are now working remotely, be aware that Massachusetts is extending Massachusetts income tax withholding to those remote workers. This action is being challenged by New Hampshire, but in the meantime Massachusetts employers are required to withhold Massachusetts income taxes from non-residents telecommuting during the pandemic or face significant penalties. Practices should evaluate whether this applies to their staff and whether further remote work benefits both parties, particularly if continuing that arrangement subjects the practice to other states’ laws.

Practices are rightly concerned about the vaccination status of staff members, and recent guidance from the U.S. Equal Employment Opportunity Commission permits practices to ask or require staff to show proof of vaccination. However, practices must be careful to reasonably accommodate employees with disabilities and sincerely held religious practices or beliefs that might prevent them from getting vaccinated. Obviously, all information about staff vaccination status must be held securely and confidentially.

Practices should be aware that the American Rescue Plan Act of 2021 extended the employee retention credit under the 2020 CARES Act through the end of 2021. The refundable credit against Social Security taxes has been increased to $7,000 per employee per calendar quarter and is now available to employers who suffered a pandemic-related suspension and whose gross receipts for the calendar quarter were less than 80% of gross receipts for the same calendar quarter in 2019 (this was increased from 50% under the original CARES Act). Practices that thought themselves ineligible for this credit under the original statute should re-evaluate that eligibility and compare the benefits under this program versus under the PPP loan program.

The Office Remote working expands the workspace to employees’ homes, and thus requires employers to adjust their policies and practices to secure electronic assets located in remote locations. Increased use of electronic records increases the threat of hacking and other security breaches. Practices should re-evaluate workstation security protocols and HIPAA privacy policies to adjust to this new reality. Remember that maintaining such new policies requires training and monitoring of remote workers, which is especially challenging.

While we emerge from the pandemic, practices may want to establish separate zones in the office space for those patients with and without COVID-19. Practices may also want to maintain cleaning and personal hygiene supplies and PPE in anticipation of possible disease resurgences, keeping in mind previous experiences of supply shortages. In addition to these steps, ongoing attention to office ventilation and higher-frequency cleaning will likely survive the pandemic as a best practice.

Engineering controls can reduce the spread of disease and exposure to infected individuals in the office. For example, investing in touchless faucets and dispensers, automatic door openers, replacing electrical switches with motion sensors, and the continued use of plexiglass barriers, where appropriate, may be worthwhile and in time considered standard.

The Money For those providers who have managed to obtain rental payment relief from their landlords, it may soon be time to review whatever payback obligations have been negotiated. The same applies to other ongoing financial obligations that may have been suspended or otherwise modified during the public health emergency. Examples may include vendors, utilities, PPP loans and third-party payers. As a further consideration, the new “work from home” trend may reduce the need for office space, leading to re-negotiation of how much leased space is desirable either now or upon lease renewal.

Practitioners providing newly-covered telehealth services will need to monitor any new billing and coding rules applicable to those services. Similar attention should be paid to such rules pertaining to services specific to COVID-19 treatments. It may be prudent to alert practice insurance carriers of a resumption of full-time practice, or if telehealth services will become a permanent part of the practice’s services.

Like other businesses, health care providers enter into many contracts, and have found that their, or their counterparties’ performance under these contracts may have been compromised during the pandemic. A review of those contracts’ “force majeure” clauses would now be timely to understand when the parties may be excused from performance under the contract in the event of another pandemic or public health emergency.

Budgeting will have to account for increased operational expenses, any anticipated ramp-up in patient volumes, payback of deferred obligations and any financing of capital expenditures. Practices may find that their budgeting assumptions will not be “normal” for quite some time, as the longer-term financial consequences of the pandemic play themselves out.