Health Care Law Blog

During this time, health care systems and clinicians have broad discretion to determine which patient services can be safely delayed without resulting in a significant decline in health. There are four guiding principles that MDHHS recommends providers implement to safely re-engage with patients who require essential medical and dental procedures. Providers are encouraged to:

• limit in-person contact and implement infection control practices;
• systematically prioritize in-person patient interactions;
• reassure patients of appropriate safety measures; and ​​​​
• assure appropriate surge capacity and develop emergency plans.

To limit in-person interaction, MDHHS encourages maximum use of telehealth services to reduce the number of in-patient visits. MDHHS recommends covered facilities eliminate waiting room times by asking patients to wait in their cars, or re-arrange the waiting rooms to comply with social distancing guidelines. Patients that do require an in-person visit should wear a face covering or be provided one if necessary. MDHHS also recommends categorizing patients based upon their risk to COVID-19 and scheduling patients within the same risk category on the same day. For example, a covered facility may choose to have a separate day or block of time to see higher risk patients.

Covered facilities are still required to comply with the visitor and screening requirements of Executive Order 2020-72. Overall, providers are encouraged to limit the number of patients seen in-person and limit the amount of time those patients spend at the covered facility by discharging as early as safely possible.

MDHHS recognizes that certain patients and certain procedures may be put at risk if their medical visits continue to be delayed. Therefore, MDHHS encourages covered facilities to prioritize patient interactions based on need or urgency. Through this guidance, clinicians are reminded that patients who had prior appointments postponed may now have time-sensitive issues, such as patients with chronic diseases or those needing immunizations.

In order to reassure patients that the covered facility has implemented appropriate safety measures, MDHHS recommends utilizing diagnostic testing for COVID-19 whenever it is clinically appropriate. Covered facilities should also continue providing appropriate personal protective equipment (PPE) for both staff and patients in compliance with the Centers for Disease Control and local health department guidance.

Finally, covered facilities are encouraged to develop written plans that address how the facility will incrementally begin seeing patients and performing medical procedures in a way that protects patients and staff. Covered facilities should maintain their surge plan and continue to conserve PPE so they are prepared if an increased demand for care arises.

This guidance does not create additional, binding requirements for covered facilities or indicate when providers will be able to provide non-essential medical care. However, it urges providers to use their best judgment in providing care in a manner that is safe for patients and staff and provides suggestions on how to do so. The full guidance from MDHHS is available here.

Foster Swift continues to track updates on the guidance and regulations for health care providers related to COVID-19. Please contact a member of Foster Swift’s health care group or one of the authors of this communication with any questions: 

• Jennifer Van Regenmorter; jvanregenmorter@fosterswift.com
• Richard Kraus; rkraus@fosterswift.com
• Caroline Renner; crenner@fosterswift.com

While the information in this article is accurate at time of publication, the laws and regulations surrounding COVID-19 are constantly evolving. Please consult your attorney or advisor to make sure you have the most up to date information before taking action.