Q&A: Can Providers Refuse to Treat Patients Who Are Unvaccinated Against COVID-19?

Can providers refuse to treat patients who are unvaccinated against COVID-19?

The NYS Boards for Medicine and Veterinary Medicine; and State Committees for Athletic Training, Medical Physics, Pathologists’ Assistants and Perfusion recently responded to an inquiry on this topic with the following answer:

Telemedicine is an option for any patient at any time if the provider deems it appropriate. Providers can refuse care on any basis and vaccination status isn’t a legally protected status like race or religion.

While this statement does suggest a provider may refuse to care for patients who refuse to be vaccinated, we urge caution, as you also need to avoid a claim of abandonment which is considered professional misconduct under Education Law sec. 6530. It can also be grounds for a professional liability claim against you.

When it comes to patients in your practice who have declined to be vaccinated against COVID-19, we recommend taking the following steps:

1. Post signage at your door stating that masks are still required for entrance. You should also include this requirement in your telephone messaging, and on your website.
2. Continue to follow all CDC and NYS DOH guidelines regarding infection control in your practice setting;
3. Encourage all patients who qualify to receive a COVID-19 vaccine. Here is a good CDC resource that can assist in this endeavor: https://www.cdc.gov/coronavirus/2019-ncov/vaccines/forum/resources.html;
4. For patients who still refuse to be vaccinated, determine whether a telehealth encounter is appropriate for their condition;
5. Should it become necessary to see an unvaccinated patient in your practice setting, there are a few steps you can take:
   • Inform the patient upon scheduling the appointment and upon confirmation, that wearing a mask or other appropriate face covering is required while at the practice.
   • Insist the patient wear their mask. Depending upon the patient’s needs, a face shield may be an appropriate alternative.
   • Dependent upon the practice’s specialty, you and the staff may also want to consider face shields for close contact.
   • Upon arrival, have the patient check-in via telephone, rather than in-person at the registration desk.
   • Where feasible, have the patient wait in the car until you are ready for their appointment.
   • Have the patient go directly to the exam room to wait for their appointment.
   • If available, have the patient use a side entrance, or some other entrance that has less traffic.
   • Wear a mask yourself, and follow all appropriate protocols when providing care to the patient.

Ultimately, if you wish to discharge patients who refuse to be vaccinated, you may do so, subject to the following:

1. Advise patients that it is practice policy for all qualified patients to be vaccinated against COVID-19.
2. If this is your practice policy, consider signage to that effect.
3. Verify that the patient does not have any immediate medical needs, where dismissal would impact their ongoing care.
4. Determine whether the patient’s refusal is based upon a medical condition or genuinely held religious belief. If either is the case, we would not recommend dismissing a patient upon these grounds.
5. Follow standard advice regarding the dismissal of a patient. This includes dismissal in writing, and at least 30 days notice (offering to treat in an emergency only), so the patient has an opportunity to obtain appropriate care elsewhere.

The law firm of Fager Amsler Keller & Schoppmann, LLC, has resources on the appropriate dismissal of patients from care.  Their attorneys are also available for consultation on these issues.

For more Q&As, information on industry news and research, and best practices, visit the MLMIC Insider. For the latest on COVID-19, visit our dedicated resource page.