Liability Concerns When Practitioners Return to the Office

Planning ahead to avoid legal liability when returning to the office.

Posted Jun 29, 2020

During the COVID-19 health pandemic many mental health professionals have relied upon telehealth options to provide clinical services to their patients. However, not everyone made this switch and whether by choice or circumstance, many people stopped their counseling altogether. When states started to shut down in mid-March many practices continued to function in some capacity via online platforms, such as providing clinical services by telephone and video conference, but other aspects of these services were simply put on hold.

Now, three months later, the country is starting to reopen. Patients are now starting to resurface and inquire about the clinical options available. This new world looks very different, with masks and hand sanitizer stations as well as new policies and protocols to ensure everyone’s health and safety.

Photo by Polina Zimmerman from Pexels
Source: Photo by Polina Zimmerman from Pexels

While states enter various phases of reopening, it is time for mental health professionals to evaluate whether they can safely return to the office and resume in-person appointments. Practitioners must review state and local orders as well as CDC guidelines to find out whether in-person appointments are advised and/or whether they can continue to use telehealth methods as much as possible. It is also time to reach out to patients who opted out of telehealth during this time.

While psychiatrists, psychologists, therapists, and other professionals continue to meet the ever-changing needs of their patients during this next transition, they must also be aware of potential legal liability concerns when returning to the office. Practitioners should contact malpractice and liability insurance providers before returning to the office to discuss whether additional coverage may be warranted. On the other hand, if providers wish to continue telehealth, it is important to monitor state telehealth policies and licensure laws. If a patient requests an in-person visit and the practitioner cannot offer this service yet, documentation is key. Record the patient’s progress, discussions about the benefits of continued telehealth, the risks associated with in-person visits, and the rationale for continued use of telehealth services, if appropriate.

Clear communication with patients is essential to the success of your return-to-office plan. They must know your office protocols and procedures as well as those of the building. It is important to prepare informed consent forms reflecting the updated policies and procedures related to COVID-19 and share them with patients before their first in-person session. Informed consent forms as well as a health questionnaire, inquiring about fever, cough, and other symptoms, can be emailed to patients to complete before their in-office visit, further minimizing personal contact. Payments can also be made via an online system prior to each visit.

Before returning to the physical office space, protocols must be in place to reduce the spread of COVID-19 in your office. Setting up a safe office environment may include, but is not limited to, deep cleaning and disinfecting the office, continuing daily or weekly cleaning services, rearranging furniture so that chairs are six feet or more away from each other, and supplying visitors with masks and hand sanitizer. Remove items that visitors may touch such as water coolers, toys, pens, credit card processors, or magazines.

Practitioners should attempt to reduce all social interactions. If a patient is typically accompanied by a parent or other family member, ask that person to remain outside rather than entering the office. Additionally, practitioners may want to stagger appointments further apart to limit or eliminate the use of a waiting room.

Practitioners must also be aware of their building’s protocols and safety measures that will affect their practice. This may include, but is not limited to, access to bathrooms, elevators, or other shared spaces.

Last, but certainly not least, practitioners must also have a plan in the event that a patient or the practitioner develops symptoms and/or tests positive for COVID-19. Immediately closing the office to disinfect and clean, informing patients of the potential exposure, and following CDC guidelines such as a 14-day quarantine, are all recommended.

The process of reopening a physical office takes a lot of planning and preparation to ensure everyone’s health and safety. All mental health professionals must continuously monitor state-specific telehealth policies, health insurance, and license issues related to providing telehealth services, and CDC guidelines. Consulting a lawyer when developing your informed consent forms as well as your updated procedures and policies will ensure that you minimize exposure to legal liability and places you in the best defensive position, as needed.