The development of the Covid-19 vaccine and its release has heralded the return of some semblance of normalcy for Americans (or at least as much as can be expected given the times). For many clients of mental health practices, this means they are now finally willing (and able) to resume in-person therapy appointments. And, as practitioners begin to consider how to reopen their practices for in-person appointments, one of the hottest topics has been the vaccination of clients and what practitioners’ options are regarding providing services to clients who may be unvaccinated. However, before making any decisions, practitioners looking to reopen (or who already have) must be aware of a number of important considerations regarding clients and Covid-19 vaccinations.

So, let’s start with perhaps the biggest question first:  Can practitioners require their clients to get the Covid-19 vaccination?  While it might be legally permissible to require clients to be vaccinated to receive services, it really will depend on your state and jurisdiction. As of the time of this blog, we feel that the legal answer has not yet been firmly established.  Thus, generally, we are of the opinion that practitioners should not be requiring existing clients to be vaccinated in order to continue to receive clinical mental health services.  This is because of the potential for claims of client abandonment otherwise, and because an individual’s decision to be vaccinated is still a personal healthcare decision. A client may also have medical, personal, or religious reasons for why they may decline to get the vaccine, none of which you, as the practitioner, may have any knowledge about, and for privacy reasons, shouldn’t be asking about. If a client volunteers this information on their own, though, that is up to the client.

Another consideration being widely discussed among practitioners is also the source of a major misconception: Can practitioners ask about a client’s vaccination status, and does HIPAA (and its related updates) prohibit practitioners from asking?  So, let’s start with the simple answer: no, HIPAA, which is federal law, does not prevent a practitioner from asking about a client’s vaccination status. As a reminder, HIPAA provides requirements regarding the storage, safeguarding, and access to a client’s protected health information (PHI); a state could potentially create additional laws prohibiting asking about proof of vaccinations without violating federal law.

HIPAA also does not prevent you from asking for and making a copy of a client’s vaccination card to verify their receipt of the vaccine.  In our own law practice, for example, we do recommend that our practitioner-clients get a copy of their clients’ vaccination cards and put them in their clients’ files. However, while HIPAA does not prevent asking for a copy of the vaccine card, HIPAA does require you to protect that information, including the card’s image, once you receive it.  Thus, it is extremely important to know and understand the current rules and regulations in your specific state or local jurisdiction before implementing any policy related to vaccines.  If you are unsure what these are, it is very important that you consider consulting with an attorney. 

So, what are some protocols and procedures practitioners should be considering then? One point to know is that reopening your office does not mean you have to discontinue the use of teletherapy.  Where clinically appropriate and based on client preference, you likely will have some clients who wish to continue with teletherapy.  For those clients who wish to return to in-person therapy, though, you must ensure you are not discriminating against them or refusing to provide services to clients simply because of their vaccination status.  The one thing you should avoid is having one standard or set of services for vaccinated clients and another set for unvaccinated ones.  For example, you want to avoid providing in-office clinical services to vaccinated clients only while allowing unvaccinated clients  to only receive clinical services via teletherapy; that likely could raise a potential claim of discrimination, and thus that type of differential treatment should be avoided. If you offer services in the office to vaccinated clients, you should be also making them available to your unvaccinated clients as well.   

However, what you can do is make use of facemasks to help address possible concerns over health and safety if you do have clients coming into the office who are potentially unvaccinated. Here again, you will be governed by what your state or local rules are if any are in place currently.  As of now, many states, including Maryland, have lifted their mask mandates.  So long as your local or state rules do not require masks, as a private business owner, you have the right to decide what is the right option for your practice when it comes to facemasks.  So some use of facemasks can be very helpful and it does not need to be fully required for everyone. For instance, you may consider allowing vaccinated clients into your office without facemasks while requiring unvaccinated clients to wear masks. A policy like this is not likely going to raise claims of discrimination because you still provide the same services to both vaccinated and unvaccinated clients. The justification here is that your practice is implementing procedures (such as facemasks) to prevent the spread of a communicable virus for health and safety reasons; you are not denying service to anyone, or abandoning clients simply because they are not vaccinated.

          Another point for practitioners to consider is how to handle minor clients.  As of this blog’s publishing, the Covid-19 vaccine is not available to children under the age of 12.  So, suppose you have unvaccinated adult clients coming into your physical office space along with minor clients (particularly under the age of 12 and/or any who are not vaccinated themselves). In that case, you may want to consider requiring masks for all minor clients under the age of 12 (or minor clients who are not vaccinated) to prevent the spread of Covid-19 to your minor clients.  Ultimately, each practice will need to determine what is the right approach when it comes to facemasks and their office. A warning  for practitioners to be aware of regarding the termination of unvaccinated clients, though. You want to be very careful regarding discontinuing services to existing clients simply because they are not vaccinated; this is very risky due to the potential for claims of abandonment .  We strongly recommend you consult with an attorney before making any drastic decisions related to terminating clinical services for unvaccinated clients of your practice if there are issues due to their vaccination status.

          Finally, it is also important to note that everything we discuss in this blog is potentially subject to change.  What are accurate or reasonable suggestions now may be irrelevant or not applicable in the coming months or the following year.  Depending on how the Fall and Winter of 2021 go, there may be a resurgence of Covid-19 or new variants that emerge that pose new risks or which potentially can be spread among vaccinated populations (the Delta variant is an example of this risk).  Local municipalities and states may reenact mask laws or renew other restrictions depending on whether there is a resurgence of Covid-19.  Renewed regulations could impact efforts by practices to reopen or the policies and procedures they implement.  Thus, it is supremely important that you stay aware of your current local and state regulations and consult with an attorney if you are unsure or need guidance. 

In conclusion, by considering the points we have discussed in this blog, practitioners can begin to consider policies they may want to implement regarding clients as they start to reopen their physical office.  As always, these should be done carefully, and if you are unsure, you need to be consulting with an attorney or other compliance-related individual or entity (such as your liability insurance company) to determine how to best implement policies.

For more information, to set up a consult, to get help with determining policies for your own office as you start to re-open, or for other legal considerations regarding your practice, please contact Mayer Law, LLC today at (443) 595-M-Law or by email at contact_us@danielmayerlaw.com.

 

DISCLAIMER:

This article is legal information and is not provided as a source for legal advice. It is made available by Mayer Law, LLC firm for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this blog, you understand that there is no attorney-client relationship established between you and Mayer Law, LLC. This blog should not be used as a substitute for competent legal advice and you should consult with an attorney before you rely on this information.