April 17, 2020

Governor Eric Holcomb extended the state’s Stay at Home order until May 1. Please note this is separate from the public health emergency, which has no end date.

 

April 6, 2020

Citing continued spread of the COVID-19 virus in the state despite containment efforts, Governor Eric Holcomb issued an additional Executive Order placing further restrictions on medical and dental procedures that require the use of personal protection equipment (PPE).

“It appears the Governor’s intent is for dentists to postpone treatment whenever possible, provided the delay doesn’t compromise the patient’s health or leave the patient in pain,” said IDA President Dr. Steve Ellinwood.

“To preserve PPE for health care providers who are battling the COVID-19 pandemic, beginning April 1, 2020, and extending to April 20, 2020 at 11:59 p.m., all health care providers, whether medical, dental or other … are directed to cancel or postpone elective and non-urgent surgical or invasive procedures. An ‘elective and non-urgent’ procedure, for the purpose of this Executive Order, includes any surgery or invasive procedure which can be delayed without undue risk to the current or future health of the patient as determined by the patient’s treating physician, dentist or health care provider. The order remains in effect for the duration of this public health emergency.”

The order does not apply to procedures that would not in any way utilize PPE, with the exemption of gloves. Like the previous order issued on March 23, the directive allows providers to use professional judgment in determining what procedures can be delayed without undue risk to the patient. However, its intent is clearly to postpone as many procedures as possible that require the use of PPE, thereby impacting most dental procedures.

The order addresses a number of additional issues, including expanding the availability of medical personnel by easing the licensing requirements for retired medical professionals, medical professionals from other states, and new medical professional graduates. A complete copy of the Executive Order may be found on the Indiana state government website.

Click here to view a PDF of the ADA’s fact sheet on what constitutes a dental emergency.

Click here to view FAQs on Indiana’s Stay at Home Order

Click here to view the ADA’s COVID-19 online resource page.

Our three-part podcast on COVID-19 employment law will be helpful to dentists trying to navigate the options for paying staff during office closures. We thank employment attorney Joe Cohen from from Barrett McNagny law firm in Fort Wayne for providing the information.

Click here to listen to the podcasts.

As you make plans to either close or transition your office during this time, here are some suggested steps to developing a thorough business response plan:

Gather copies of all Insurance Policies
Relevant policies purchased from the Indiana Dental Association Insurance Services (IDAIS) could include:

1. General Liability: Most standard commercial property policies include “business income “or “business interruption” coverage.  This type of coverage typically applies when a covered “cause of loss” triggers a slowdown or suspension of operations. So, the existence of business interruption coverage for a COVID-19 caused slowdown or suspension depends on whether communicable diseases can be characterized as a covered “cause of loss.” Most often, a covered “cause of loss” is defined to include only direct physical loss or damage like  a hurricane or fire. However, every policy is different and others contain language or endorsements that modify standard coverages. Even under traditional insurance policies, there are circumstances where coverage may still be available. For instance, actual contamination of physical property (like telephones, HVAC systems, etc.) may be a direct physical loss. Additionally, most policies have separate coverage that is triggered when a civil order prohibits access to a property or building. Even if you have doubts about your eligibility for coverage, continue to document all losses you experience during this time, as it may be covered under another policy.
2. Employment Practices Liability: With employee reductions, layoffs, and furloughs resulting from shutdowns, there will likely be an increase in retaliation and wrongful termination claims brought by terminated employees. You should gather and review these policies in preparation for any potential litigation.
3. Workers’ Compensation: Workers’ compensation insurance is designed to compensate employees injured during the course and scope of their employment. For example, if a healthcare worker is exposed to COVID-19 or a salesperson is required to travel overseas and becomes infected by the virus. While highly unlikely, the coronavirus could be considered an occupational disease under certain circumstances. Worker’s compensation statutes generally provide that an employee is entitled to benefits for “occupational diseases” but typically exclude “ordinary diseases of life” (i.e., those to which the general public is equally exposed). However, if an employee can establish a direct causal connection to the workplace, there may be a valid argument for worker’s compensation coverage. The key is to confirm it is a workplace exposure and not a general life exposure.

 

In the dental practice setting, mitigate your employees’ exposure to the virus by practicing infection control, social distancing, and appropriate hygiene. In addition, the ADA has recommended that dental offices only see patients who require emergency care, which it defines as “potentially life threatening [issues which] require immediate treatment to stop ongoing tissue bleeding.” In addition, dental practices should take precautions and follow any additional OSHA and State department of health guidelines prescribed during this time.

Identify Potential coverage categories under the above provisions

• Document everything.  Keep a detailed account of all losses you experience during this pandemic including (but not limited to) lost revenue, expenses, and other costs.
• Review your rights and responsibilities to give prompt notice of claims. Many of the above policies are “claims made” policies, which require that your company make a claim during the appropriate period. Your practice should give notice of a claim before the policies expire, while documenting any and all correspondence you may have with your provider.

 

For additional information on business response planning during the COVID-19 outbreak, see the following articles:

Five Ways Distressed Businesses Should Respond to the COVID-19 Crisis

COVID-19 Guidance: SBA Disaster Loan Program

COVID-19 and Business Interruption: How Insurance Can and Cannot Mitigate Losses

 

More Helpful Links

IDA Insurance

Will My Insurance Cover This?

On March 18, HR 6201 passed through the Senate and was signed into law by President Trump. The bill is large, comprehensive, and ever-changing. We will continue to update this post as new information becomes available.

Emergency paid sick leave

Small businesses will be required to provide two weeks of paid sick leave to an employee who:

• Has a current diagnosis of COVID–19, or is under quarantine at the instruction of a health care provider, employer, or a local, state, or federal official.
• Is engaged in caregiving for an individual who has a current diagnosis of COVID–19 or is under quarantine.
• Is engaged in caregiving, because of the COVID–19-related closing of a school or other care facility or care program, for a child or other individual unable to provide self-care.

 

This does not apply to businesses with over 500 people and small businesses with under 50 employees may avoid the requirements if they “would jeopardize the viability of the business as an ongoing concern.” However, the U.S. Department of the Treasury has not yet clarified the exemption procedures and requirements. The ADA is working with several organizations to secure an exemption for dental offices. The above provisions are set to expire at the end of calendar year 2020.

 

Family medical leave

The bill expands the Family and Medical Leave Act (FMLA) to include leave needed to care for an employee’s child whose school or care provider is closed due to COVID-19. This leave can be used by employees who have been employed by their current employer for at least 30 days. This applies to any private sector employers under 500 employees.

• The first 10 days of FMLA leave may be unpaid. Beyond that time, employers must compensate employees for the remainder of FMLA leave taken (up to 10 work weeks) at 2/3 of their regular rate of pay.
• FMLA paid leave is capped at $200 per day and $10,000 per employee total.

 

Tax credits for paid family and medical leave

The legislation has a refundable tax credit equal to 100 percent of paid family or medical leave wages paid by the small business each quarter. The credit can be used against the employer’s social security taxes and applies to amounts paid to employees who are sick or quarantined. A smaller credit applies to amounts paid to employees caring for a family member or for a child whose school or place of care has been closed.

Individuals who are self-employed also qualify for refundable credits. Limits apply.

 

Emergency unemployment stabilization

• Provides $1 billion for emergency grants to states for activities related to processing and paying unemployment insurance benefits.
• $500 million would be used to provide immediate additional funding to all states for staffing, technology, systems, and other administrative costs, so long as they met basic requirements about ensuring access to earned benefits for eligible workers.
• $500 million would be reserved for emergency grants to states which experienced at least a 10 percent increase in unemployment.
• States that experience an increase of 10 percent or more in their unemployment rate (over the previous year) and comply with all the beneficiary access provisions will qualify for 100 percent funding for extended benefits.
• Extended benefits are triggered when unemployment is high in a state and provide up to an additional 26 weeks after regular unemployment insurance benefits exhausted. This section also suspends the financial penalty for states that waive the usual one-week waiting period for benefits.

What do I need to know about HR 6201?
HR 6201, signed into law by President Trump on March 18, established requirements for emergency paid sick leave to employees. The law requires small businesses to provide two weeks of paid sick leave to an employee who:

• Has a current diagnosis of COVID–19, or is under quarantine at the instruction of a health care provider, employer, or a local, state, or federal official.
• Is engaged in caregiving for an individual who has a current diagnosis of COVID–19 or is under quarantine.
• Is engaged in caregiving, because of the COVID–19-related closing of a school or other care facility or care program, for a child or other individual unable to provide self-care.
• This does not apply to businesses with over 500 people, and small businesses with under 50 employees may avoid the requirements if they “would jeopardize the viability of the business as an ongoing concern.” However, the U.S. Department of the Treasury has not yet clarified how these exemptions will be made.
• These provisions are set to expire at the end of calendar year 2020.

 

Click here to read more details about HR 6201.

Listen to our three-part podcast focusing on employment law and COVID-19.

 

Will my unemployment insurance rates increase if my employees have to receive unemployment benefits?
In a declaration on March 19, Gov. Eric Holcomb announced that the Department of Workforce Development, “shall not assess certain experience rate penalties to employers as a result of employees receiving unemployment benefits related to COVID-19.” In essence, your practice’s unemployment insurance rates will not escalate due to any claims made as a result of COVID-19 mandated or voluntary closures.

If I decide to close my office, do I have to pay my employees?
For exempt (salaried) and non-exempt full-time employees, you will have to pay them if they are willing and able to come to work but are unable to do so because of the closed office. You may direct these staff members to take vacation or debit their time off account during a disaster, whether for a full or partial day’s absence, provided the employees receive in payment an amount equal to their guaranteed salary.

You do not have to pay hourly employees who do not have paid time off. If they don’t work, they don’t get paid. However, you are legally allowed to pay them as a gesture of goodwill if you are able to do so.

If an employee contracts the coronavirus, does workers’ compensation provide coverage?
An employee who contracts the coronavirus while at work might have coverage under workers’ compensation, but the burden of proof would be on the employee to prove that the illness was contracted through the course of employment and not elsewhere. Your insurance carrier will evaluate each claim on its own individual set of circumstances.

Can employers revise paid sick time policies to allow for “quarantine” situations?
Many employers are offering relaxed and/or additional paid leave benefits in response to the current situation. Most common is allowing the use of paid sick time to cover time off work due to restrictions against coming onsite for coronavirus prevention purposes. Paid sick time may also be allowed for other coronavirus-related reasons for absence, such as the need to care for children whose schools are closed.

Some employers are simply paying for “quarantine time” separately from any existing paid time off policies, but that is not always feasible, especially given the uncertainty about the potential total cost at a time when revenues may be down. Some employers are considering adopting “leave-sharing” programs to allow employees to donate a portion of their paid time off to coworkers who are off work for extended periods due to the coronavirus. Because leave-sharing programs can be complex to administer, and if not properly designed, donor employees may be subject to payroll taxes on donated leave, we advise consulting benefits counsel before adopting such a program.

Do employer-instituted quarantines or temporary shutdowns or mass layoffs entitle workers to unemployment benefits?
Yes, workers are generally entitled to unemployment insurance if they are furloughed when a business temporarily shuts down and all other unemployment requirements are met.

 

The State of Indiana is hosting a webinar on unemployment benefits. Click here to learn more.

Some patients are more at risk for severe complications from COVID-19. Patients with the following conditions or circumstances should be strongly encouraged to reschedule appointments:

• Anyone who has recently traveled to a country with large outbreaks of COVID-19.
• Patients related to anyone who has been exposed to someone diagnosed with COVID-19 or who was quarantined as a precaution.
• Patients exhibiting cold or flu-like symptoms.
• Patients 60 years of age or older.
• Adults of any age with underlying medical conditions, including diabetes, kidney disease, lung disorders, heart ailments and high blood pressure.

Social media posts, website notices and patient emails can help keep patients informed. Feel free to modify the following information template for your practice:

 

If your office is closing:

The health and well being of our patients and the community of [city or town] is our highest priority. For this reason, we have made the difficult decision to close our practice temporarily to try and reduce the spread of the COVID-19 virus. We will make a decision about re-opening or extending our closure by [date]. Thank you for your understanding. We will continue to communicate with our patients as much as possible during this closure and after re-opening to accommodate dental needs as much as possible.

 

If your office is remaining open, even for emergency procedures only:

Your health and well-being are our highest priority. At all times, we take the highest level of precautions to prevent the spread of any type of infection, including the new coronavirus. You can learn more about these protocols, as well as how you can help keep yourself and those around you healthy, from the American Dental Association’s website at mouthhealthy.org/virus.

 

[Provide any office-specific protocols surrounding scheduling/rescheduling of appointments, available procedures, emergency number, precautions to limit contact in waiting areas, etc.]

 

Please contact our office if you have any questions about an upcoming appointment or your oral health needs. We will continue to closely monitor updates from the CDC, and the American Dental Association. If there are any changes to our procedures or appointments, we will update our patients immediately.

What is emergency care? What is an elective procedure? On March 16, Indiana Governor Eric Holcomb encouraged hospitals and surgical centers to cancel and/or postpone elective and non-urgent surgical procedures, but he advised that physicians should continue to perform critical procedures necessary to prevent short-term and/or long-term adverse effects to their patients’ overall health. When deciding what types of procedures constitute “emergency care,” consider the following:

• Routine cleanings, cosmetic procedures and any treatment that can be reasonably postponed for three weeks or longer are considered elective.
• Beyond the list above, as a provider, you are the leader of your health care team and are in the best possible position to evaluate what types of care can be considered urgent or emergencies.
• If you plan to treatment emergencies over the next few weeks, draft a list of procedures you consider to be “urgent” and direct your staff to reschedule all routine exams, cosmetic treatments, elective procedures, and non-emergency services where possible.
• Record a new voicemail message to inform your patients about how your practice is dealing with this public health crisis, and encourage them to leave a message or seek additional treatment if they have a medical emergency.
• Send emails and/or texts, and update your website and social media channels to list the types of procedures you consider an emergency and will be willing to treat in the next few weeks or months.
• Check your voicemail regularly to ensure that any patient emergency is dealt with quickly and effectively.

 

The ADA has compiled guidelines for emergency vs. non-emergency conditions. Click here to view the guidelines.

Difficult situations like this is one of the reasons why business insurance is a prudent choice. Most general liability policies have Business Interruption coverage, which may help your practice recover damages such as business expenses or losses during periods of upheaval or unrest. To prepare to make a claim:

• Gather your insurance policies and determine if one or more policies have Business Interruption provisions or anything similar.
• Keep accurate records of all expenses and losses you suffer during this crisis, and be sure to keep detailed notes of any time you communicate with your insurance company or representative.
• Even if you are unsure about whether your Business Interruption expenses will be covered under your policy, file a claim anyway. While underwriters and insurance agents have issued no formal position on coverage during this time, given the severity and frequency of claims stemming from this crisis, there is a possibility that they may all be joined under a “Catastrophic Claim” and disbursed accordingly.
• Contact your insurance agent. He or she may not have immediate answers, but it’s important to take this important first step.

 

These important first steps will protect your staff, ensure the health and safety of your patients and hopefully provide protection for your practice in the long run.

 

Need more information? Visit our Business Insurance Coverage: Information for Dentists post.