By Jeanine Lehman, Attorney at Law
An eternity seems to have passed since the City of Austin cancelled the SXSW festival due to COVID-19 in early March. Austin was spared the influx of over 400,000 visitors from around the world and a possible fate akin to New Orleans. That said, dental practices have suffered greatly due to their closure pursuant to the Governor’s Executive Orders GA-09 and GA-15, which limited health care providers to certain emergency services – to preserve personal protective equipment (PPE) for frontline healthcare workers fighting COVID-19.
Reopening. On April 27, 2020, Governor Abbott announced that effective May 1, 2020, dentists may reopen their practices per Executive Order GA-19, which allows dentists to no longer be limited to emergency services. Dentists must comply with Texas State Board of Dental Examiners (TSBDE) emergency rule 108.7(16) which requires compliance with the rule’s and CDC guidelines. These include having COVID-19 procedures, screening of dental health care personnel (DHCP), as well as patient pre-appointment screening, in-office screening, and post appointment instruction, use of standard precautions, transmission-based precautions (including N-95 respirator masks, KN-95 masks, or their substantial equivalent for procedures likely to involve aerosols), and emphasis on proper use of personal protective equipment and reduction of aerosol production. An example is that for hygiene services, only hand instruments and low-speed polishing tools may be used. The guidelines also have office considerations and many more requirements. The rule is available on the TSBDE website. The Governor also provided a manual with minimum health protocol checklists for employers, businesses and individuals, which should be used, at: gov.texas.gov/opentexas Patients and others should be directed to wear face coverings while not in the dental chair. Dental practices should follow applicable guidelines, including TSBDE, CDC, OSHA, public health authorities, and other governmental entities, and make reference to ADA and TDA resources. The Texas Dental Association’s “Guidelines for Reopening Dental Offices Safely During the COVID-19 Pandemic” is helpful and includes resource references.
Employees. When Order GA-09 was issued in March, many practices fired or furloughed some or all of their employees, who then filed for unemployment. To bring back fired employees, they need to be rehired and customary new hire paperwork is required. Hopefully, fired and furloughed employees will want to come back to work and realize there is a limit to unemployment benefits. That said, many employees will receive more money from unemployment benefits than from working at their past wage levels, due to added pandemic federal unemployment benefits of $600/week. To estimate an employee’s unemployment benefits, $600/week is added to the results from the Texas Workforce Commission’s benefits calculator: https://apps.twc.state.tx.us/UBS/benefitsEstimator.do
COVID-19 in the Office. A COVID-19 positive patient, visitor, or team member may be present in the dental office. Such person may be asymptomatic but spreading the virus. Therefore, the practice needs to have a plan in place for what to do if notified by a patient, team member or visitor of COVID-19 infection, including compliance with the requirements of State and local public health authorities. For eligible employees, the practice also needs to comply with the Families First Coronavirus Response Act administered by the U.S. Department of Labor, including for paid sick leave and enhanced family medical leave requirements. A poster concerning employee rights is required.
PPP Loans. Practices receiving Paycheck Protection Program loans should carefully track and document allowable expenses that apply to loan forgiveness. To avoid or limit the reduction in loan forgiveness, they need to be aware of and minimize the reduction in the number of full time equivalent employees and employee compensation.
Costs & Adjustments. Dental practices will incur significant costs, including for enhanced PPE, office improvements, and probable reduction in patient capacity. For example, a hygienist doing hand scaling will see fewer patients in a day. The American Dental Association has issued a statement on third party payer reimbursement for costs for increased standards for PPE. Dentists should also carefully track and document their loss of revenue and increased expenses caused by the pandemic. Those data will be helpful if they choose to sell their practices.
Changing Requirements. The reopening of dental practices will be subject to changing orders, rules, laws, and opinions. Therefore, ongoing vigilance and consultation with a knowledgeable attorney concerning changes will be critical.
Jeanine Lehman is an Austin, Texas dental, health and business law attorney with a statewide practice – www.jeanine.com. She can be reached at (512) 918-3435 or Jeanine@Jeanine.com. © Jeanine Lehman 2020. This article is not legal advice.