As the COVID-19 pandemic continues to evolve, health and wellness professionals are wrestling with some of the more complicated questions about how and when to return to in-person sessions. Here, we’ll address some of the more common questions associated with your practice’s policies and procedures around reopening for in-person care.
Please note that COVID-19 is an ongoing and constantly evolving concern, so you still need to remain up-to-date and informed on all CDC guidelines and regulations. As always, state and local laws can vary, and none of this is intended as legal advice. You may want to consult with an attorney for guidance regarding your practice.
Can I require clients to wear masks in my office? What about my waiting room?
At publication time for this article, state mask rules vary wildly from state-to-state. It’s also frequently unclear which rules apply to private practitioners. Even as a licensed professional, you may not be working in a licensed healthcare facility, which has been the standard some states are using to determine where masks are still required.
Several states explicitly require masks in healthcare facilities. Several states allow businesses, regardless of type, to continue requiring their customers to wear masks. Refer to this comprehensive breakdown of state-by-state rules. Many cities have their own regulations to consider as well, so be sure to check what local regulations may differ from state rules.
Aside from the strictly legal aspects, there are also practical aspects to consider. Are your clients physically healthy, vaccinated adults? Are they a mix of vaccinated and unvaccinated individuals? How busy does your waiting room get during a normal day? How frequently is it thoroughly cleaned? How big and well-ventilated is your office?
You should never have to choose between your work and your safety. If you don’t feel safe and comfortable to return to in-person sessions, you can continue to provide telehealth services until vaccination rates improve, vaccines are available for children, or other elements of progress against the pandemic are more visible.
Can I wear a mask with clients?
If you prefer to wear a mask, the answer is almost certainly yes, you can. Almost all states maintain recommendations that adults wear masks when indoors with others who may not be vaccinated. At this time, no states are prohibiting mask-wearing. Many employers are explicitly required to make masks and other protections available to employees.
If you’re going to wear a mask when meeting with clients, they may naturally inquire about why you are doing so, especially if the client is vaccinated. What to self-disclose is up to you, but you may want to be prepared in advance for such questions.
Can I require clients to show proof of their vaccination status if they want to return to in-person sessions?
Contrary to popular belief, such a requirement does not appear to be a HIPAA violation, nor does it appear to be discriminatory. A few states, like Colorado, specifically allow business owners to require anyone entering the premises unmasked to show proof of vaccination status. (Again, I’m not a lawyer, but the “unmasked” here may be doing some of the legal heavy lifting. Anyone who doesn’t want to reveal their status can simply wear a mask, so there’s no forced disclosure.)
According to a May report from Capital Public Radio debunking misinformation spreading on social media, “Businesses can generally deny entry to unvaccinated customers, provided they offer reasonable accommodations for people who might be unable to receive a vaccine because of a disability, a medical condition or their religious beliefs.”
Reasonable accommodations do not appear to require you to provide unvaccinated clients with in-person treatment, especially if you offer telehealth. Providing services via telehealth could be a good alternative option for those who are unvaccinated or who refuse to share their vaccination status.
If you do require clients to provide proof of vaccination status, and you’re a HIPAA covered entity, you would need to treat client vaccination status as Protected Health Information, and only disclose it to others with proper authorization.
Can I refuse to treat unvaccinated clients?
What, then, to do when telehealth is not an option? Can you summarily refuse treatment to those who are not vaccinated? Here, the question becomes more complicated.
Pediatricians have long debated whether it is appropriate to refuse to take on unvaccinated children as patients. In private-practice settings, such refusal appears to be legal, according to a 2014 review. However, the authors noted two cautions based on existing case law. First, refusing treatment to a potential patient is different from refusing treatment to an existing patient. Second, the reason for the patient’s vaccination status matters.
To the first point, there’s no duty of care when a clinician-patient relationship has not yet been established. However, when you refuse treatment to an existing patient and don’t make provisions for their ongoing care, you run the risk of client abandonment. That’s typically an ethical violation—and often a legal one as well. This risk is lessened when you do these three things: work with the client to address any crisis needs, provide referrals to other well-qualified providers who will provide the kind of treatment the client wants, and when you (with permission) share records or take other steps to ensure a warm handoff of care.
To the second point, a potential client who refuses vaccination because they don’t trust vaccinations is likely to be one you can turn away without legal concern, especially in a private practice context. But a potential client who is unvaccinated due to a religious belief or disability may raise concerns about discrimination if they’re refused service entirely.
Can I require clients to sign a COVID-19 related waiver to protect me from liability?
As a policy question, many states have considered or enacted state laws to shield businesses that are following safety protocols from COVID-19-related liability. If such a law isn’t in place where you are—or if you just want the added peace of mind—you could ask clients to sign a waiver. Several templates are available online, using generally similar language.
Asking clients to sign a waiver isn’t the same as requiring them to sign a waiver. However, as with your informed consent, if the client isn’t willing to sign a document that you’re providing to all clients as part of your practice, you may prefer to refer the client to other providers.
I work in a group practice, hospital, or other setting as an employee. Can my employer require me to get vaccinated?
Several hospital workers in Texas were fired for refusing to get vaccinated. When they sued, the court said that the employer’s interest in ensuring a safe environment for healthcare outweighed the employees’ individual preferences. That seems to be the crux of the legal question: If you work in healthcare and your unvaccinated status poses a severe and significant threat to client or patient safety, then your employer can mandate vaccination.
You can see how this might be more complicated in outpatient mental healthcare. If your clients are healthy adults—and vaccinated—would you being unvaccinated be dangerous to them? If you work with children or unvaccinated adults, it would be a potentially easier case for your employer to require vaccinations. But as case counts continue to decline across the country, it may be that the level of risk you might pose even in those situations also declines.
Can I phase in my return to the office?
If you’re in private practice, it’s largely up to you to determine who you will see via technology and who you will see in person. Some practitioners may be phasing in their return to the office, starting with just one or two days of in-person care each week.
One policy issue to keep in mind is that for state and federal rules surrounding telehealth that have been temporarily waived during the pandemic, those waivers may soon be coming to an end. When that happens, the rules will typically revert to those in place before the pandemic began. You’ll need to ensure you meet any state requirements to provide telehealth—and that you are using a HIPAA-compliant telehealth platform.
I’m not interested in returning to my office. Can I break my office lease?
Last year, I spoke with Texas real estate attorney Joe Balsiger about questions related to private practice office leases during the pandemic. As he noted at that time, many office leases don’t have clauses that would allow you to suddenly and unilaterally break your lease—even in a large-scale public emergency like the pandemic. The property owner could sue for breach of contract if you attempted to do so.
However, as Balsiger noted then, having a strong relationship with the owner can go a long way. If you’re interested in remaining solely a telehealth provider, you may be better served by working with the owner to negotiate an early end to your lease, or to sublease your office to someone who will be working in-person.
What should I tell my clients about masks and vaccine requirements?
Draft a policy letter for your practice, or customize a letter template. Bear in mind that each practice is different and that emergency orders are changing quickly. It’s recommended to run your final version through your attorney to be sure it’s appropriate under current circumstances.