May 6, 2022

William L. Harp, M.D.

Executive Director

Board of Medicine

9960 Mayland Drive, Suite 300

Henrico Virginia 23233

Re:       Comment on Petition for Rulemaking: Prohibition of Requirements for Mask Wearing, Receipt of Vaccines, and Disclosure of Vaccine Status to Receive Medical Care

Dear Dr. Harp,

For reasons discussed in further detail below, the Virginia Hospital & Healthcare Association (VHHA) urges the Board of Medicine to reject the petitioner’s request to amend its regulations to prohibit requirements for mask wearing, receipt of vaccines, or disclosure of vaccine status. 

The ability to require patients or prospective patients or their accompanying representatives to wear masks when present in health care settings, including physician offices or clinics and hospital inpatient and outpatient departments, is essential to proper infection control practices necessary for the protection of patients, staff, and the public.  Interference with this ability could not only expose individuals to disease, disability, or death, but could also result in health care providers being liable for negligence and being out of compliance with applicable laws and regulations that require proper infection control practices. 

For example, the Medicare conditions of participation for hospitals at 42 CFR § 482.42 require hospitals to have active hospital-wide programs for the surveillance, prevention, and control of infectious diseases and such programs must demonstrate adherence to nationally recognized infection prevention and control guidelines, such as those established from time to time by the Centers for Disease Prevention and Control (CDC).  Depending upon the circumstances, proper infection control practices may require the wearing of masks in sterile and non-sterile environments and in patient care and non-patient care areas.  As we have seen with COVID-19, wearing of masks in health care settings has been and continues to be included in guidelines adopted by the CDC.   

Current CDC guidelines for COVID-19 have included masking as a recognized source control in healthcare settings and continue to prefer that it be applied universally.  It has recently, however, included some allowances for individuals who are up to date with all recommended COVID-19 vaccine doses in healthcare facilities located in counties with low to moderate community transmission. Similarly, health care providers who are up to date with all recommended COVID-19 vaccine doses can chose not to wear masks when they are in well-defined areas that are restricted from patient access (e.g., staff meeting rooms, kitchen), but are instructed to wear source control when they are in areas of the healthcare facility where they could encounter patients (e.g., hospital cafeteria, common halls/corridors).

CDC continues to instruct that the safest practice is for patients and visitors to wear masks, particularly if at risk for severe disease or are unvaccinated. 

Accordingly, it is the case now, and would likely be for any future pandemics or outbreaks of infectious disease, that health care settings, including hospitals, will be required to enforce masking requirements in order to maintain proper infection control practices and compliance with applicable regulations.  The requested regulations’ prohibition on mask wearing requirements would be in direct interference with such obligations.  The regulations would also appear to place health care providers in the untenable position of either complying with the regulations or violating other applicable requirements as the prohibitions are to apply even “when following policies of insurers or organizations or when following guidance issued by the Centers for Disease Control, local health departments, or the Virginia Department of Health.” 

Further, as demonstrated by the CDC guidance, it will be necessary to inquire about or request disclosure of vaccination status of patients or prospective patients or accompanying representatives to determine whether applicable requirements are being complied with.  If it is determined that an individual is not vaccinated, additional steps would be required to ensure compliance, including, but not limited to requests for the individual to wear a mask.  Consequently, the requested regulations’ prohibition on disclosure of whether they have received any vaccine would likewise be in direct interference with existing obligations.

As it relates to any prohibition against disclosure of vaccination status or provision of medical care to any patient or prospective patient based on the vaccination status of the patient, vaccination may be clinically indicated to produce the best possible outcome for a patient, could be a contraindication for treatment, or serve as an appropriate factor in scarce resource allocations.  As such, information about vaccination status cannot and should not be eliminated from clinical decision-making.  Ultimately, the patient controls consent to receiving any vaccination, but vaccination status is clinically relevant and there should not be interference in communication about vaccination status between patients or potential patients and their health care providers.

Virginia’s hospitals and health systems strive to provide the best possible care experience for patients and visitors in the least restrictive manner possible; however, it is essential that they retain the flexibility to implement proper infection control practices when necessary in response to threats to the health and safety of those patients and visitors and their dedicated staff.  The requested regulations would be in conflict with this mission and are therefore not supported by VHHA.  We again respectfully urge you to reject the petitioner’s request.

Sincerely,

R. Brent Rawlings

Senior Vice President and General Counsel