News & Insights

Documentation and Informed Consent in Arkansas During the Time of COVID-19

April 30, 2020

By Kelly Carithers, Attorney, CJD Law Firm, Fayetteville, Arkansas

Documentation and Informed Consent in Arkansas During the Time of COVID-19
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COVID-19 has brought great challenges and adjustments in both practice and protocol decisions. While the primary concern is always protection of the patient and healthcare provider safety, critical documentation, particularly within the guidelines and restrictions of the Arkansas Department of Health’s recent directive, has heightened significance.

Resumption of Elective Procedures

Effective April 27, 2020, the Arkansas Department of Health’s latest directive allows resumption of elective procedures with very specific requirements and limitations.

Those key requirements are as follows:

  1. Only outpatients with no plans for overnight stay.
  2. An American Society of Anesthesiologists rating of I or II. If they are a II-rating, their disease process should be well controlled.
  3. No contact with known COVID-19 patients during the past 14 days.
  4. Patients must be asymptomatic for COVID-19 per ADH guidelines.
  5. Start with a small initial volume of cases and increase incrementally as PPE availability and number of statewide occurrences dictate.
  6.  Each institution must have an ample supply of PPE for resuming elective procedures while maintaining a reserve should there be a resurgence of the virus. The acquisition of PPE is a matter for each institution to address and is not the responsibility of ADH.
  7. For an asymptomatic patient to be a candidate for a procedure, he/she must have at least one negative COVID-19 NAAT test within 48 hours prior to the beginning of the procedure.

Documentation and Informed Consent

In the current climate, it has been suggested by a number of medical professional groups, including the American College of Surgeons, the American Society of Plastic Surgeons, and others that special emphasis should be placed on providing patients with particular information relevant to COVID-19 as a part of the informed consent process. While tailored to the specific patient, each procedure, and the facility where the treatment is to be provided, there are certain key items in light of the ADH directive that should be considered.

In the Arkansas Department of Health required elements for resuming elective procedures, items 1, 2, 3, 4, and 7 fall squarely on the evaluation shoulders of the healthcare provider rather than on the facility where the procedures occur. It is recommended the healthcare provider confirm in writing the patient has met the threshold requirement for proceeding with the procedure.

Thus, in addition to the customary documentation of the discussion of the risks and benefits of doing or not doing a procedure, other points should be included and confirmed in the medical records:

  1. The patient’s status as to COVID-19 as outlined in the directive (no contact with known COVID-19 patients during the past 14 days, patient asymptomatic per ADH guidelines).
  2. Acknowledgment the patient has had a negative COVID-19 NAAT test within 48 hours prior to the beginning of the procedure. Those test results should be maintained within that patient’s medical record.
  3. Clear acknowledgment by the patient of the risk of COVID-19 exposure in the procedural climate has been addressed and all questions answered in order for the patient to give informed consent to the procedure.

In any event, it is a best practice recommendation for the healthcare provider to include documentation in the medical records the patient has been given the opportunity to defer their treatment or proceed to a later date but has acknowledged their desire and informed decision to proceed with the elective procedure, despite any risks as currently known to be associated with COVID-19.

The provider should also anticipate a number of wide ranging questions from the patient and/or the patient’s family about COVID-19 testing, risks, safety and prevention initiatives and other process issues. The provider should be prepared and knowledgeable about their facility’s strategy and institutional protocols for COVID-19 concerns. Be prepared to have clear and open communication with the patient and/or the patient’s family in light of the fear and uncertainty associated with COVID-19.

Finally, providers should also consider upgrading, modifying, or adjusting their patient discharge instructions and information regarding follow-up to adhere to standardized protocol specific to COVID-19 in line with recommendations made by the CDC, the Arkansas Department of Health or the provider’s medical professional organization.

For questions, contact the LAMMICO Claim Department at 800.452.2120.

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