News & Insights
Apr 14, 2020
Welcome to PointByPoint, conversations, interviews and legal commentary for today's business professionals, brought to you by Waller.
Molly Huffman is a partner in Waller’s healthcare compliance and operations group and brings a unique perspective, having worked with healthcare providers across the country. Molly will help us gain insights about risk and crisis management for providers in the age of COVID-19.
Here is a transcript of the conversation:
Morgan Ribeiro, Host
Thanks for joining us today, Molly. Before we jump into specifics, I think our listeners would be interested in hearing your perspective on the current COVID-19 pandemic in the U. S. and its impact on your healthcare provider clients. How has the COVID-19 pandemic created different risks, crisis management situations for hospitals, and what are some that are the same?
Thanks, Morgan. I'm glad to be here with you all today. I know I join everybody in just being completely amazed and appreciative of all of the healthcare providers who are out there working to improve and get through this situation. It is certainly unlike any we've seen before. From the risk management perspective, I've spent much of the last 18 years of my career working in the healthcare space with hospitals, health systems and physicians, and much of the rescue crisis is similar to, although not the same. But certainly there are some different aspects to this that we have never seen before.
Some of the things that are the same are the physician engagement. I'm working with the physicians and the administration at the facilities to say what is needed both on the side for the physicians and for the patients. In many instances, as the news has shown everybody, there's been a lack of personal protective equipment. There are many discussions across the country on who will get respirators and ventilators if and when we get to that surge point.
I practice in Virginia, and across the country, but I’m physically located in Virginia, and I know we've been having discussions with hospitals and health systems here in recent days on what that would look like and how to ensure there's a matrix or a decision making grid such that it is equitable to all patients coming into a hospital or other care treatment situation, and ensuring that it is not fraught with emotion but really determined in advance as to who will get that equipment, if in fact there was not enough for everybody.
A lot of the same risk in safety situations that we see in a normal or non-crisis time that we would see now are situations involving patient safety and quality. So many facilities are probably part of a patient safety organization, and in times when we're not facing COVID-19, if there is a bad situation that goes on in a hospital or a situation that might not have gone is as wanted, those hospitals that are part of a patient safety organization under the Patient Safety and Quality Improvement Act have the ability to go into a safe space to talk about it, to peel that onion back, if you will, to take notes, to really analyze from the root what went wrong, what could have been done better, or what might be changed in the future, and then to share that within the four walls of that hospital, also to share it with sister facilities that are part of it.
And I’ve thought in the recent days that things are moving so fast in these hospitals, and it is all hands on deck for care to be provided to the patients facing the COVID-19 virus, and many probably aren't thinking as these situations arise, that they could in fact go into that safe space and have even that verbal discussions be protected, confidential and nondiscoverable. So I think there are some ways and some tools for those providers now to do that, again, recognizing that they aren't always able to do that because it is such a crisis situation.
Another risk or quality situation that has crossed my mind in recent days and have had some conversations on with providers, is the vast amount of physicians who are going to the hot points who are not licensed in that state, presumably, you are not on the medical staff of the hospital where they have suddenly found themselves providing care and treatment to these patients. And, in any other term, we would face situations where there might be a physician who didn't act in accordance with the medical staff bylaws who perhaps didn't follow the appropriate rules and regulations and policies, and certainly there will be situations like that that come out of the COVID-19 process.
Likewise, many states, though, have immunity provisions that say, if you're doing your best in a crisis situation like this, at least under that state's laws, you're not going to be held accountable. But the hospital's medical staff bylaws and rules and regulations are very different situations, and I think only time will tell what will come out of that and what we will see as far as needs for physicians and for hospitals after this crisis is over.
Molly, it seems to me that there are likely a lot of questions around HIPAA right now and protecting patient information. What are you seeing, and what kind of questions are you getting from hospitals and other healthcare providers on that topic?
Sure, and you're exactly right, Morgan. People are asking a lot about the HIPAA piece and what they can and can't share with this, as deadly as it is, obviously, there are questions on both sides of the equation from the communities, but also from the healthcare workers and EMS responders as well. So there has been some relaxation, if you will, of what is required. For example, a hospital can provide a list of names and addresses of everyone they know who has had a positive COVID-19 test to certain individuals like EMS dispatchers so that they can obviously take that extra protection in precaution to make themselves safe.
And we're seeing a lot of involvement, as you would imagine, from the hospital's communications teams. Their role is more critical than ever in a pandemic like this and ensuring that those communications are both cohesive and accurate, but also not providing more information than they ought to. So, for example, that list that we might give to an EMS responder we would not give to the public, nor would we publish it on a website or anywhere else where somebody might be able to find it. But to the extent we are sharing information with the public, that crisis communications team making sure that we're sharing where we can. With HIPAA, we are still advising least amount that you can or should provide, so not providing anything extra, and often, as you can imagine, those messages to the public are different than the ones to the physicians that are also different than the ones to perhaps others internally to the hospital. And I keep going back to that crisis communications team, but those folks really are so very instrumental in helping a hospital and a health system navigate those channels on the split second basis.
Molly, switching gears here over to the emergency department of a hospital, obviously the main entry point for care at a hospital. What should healthcare providers and those working with providers do in regards to the emergency department and the COVID-19 crisis?
Yes, the emergency department is always, even in calmer times, a hot spot for a hospital. It is a prime entry point for people having any number of medical crises, including behavioral health and mental health issues, but also many truly physical ailments and accidents and emergencies as well.
So in today's world, in the spring of 2020 we're finding ourselves with many emergency departments seeing just a vast number of COVID-19 patients. In some instances, that's almost entirely what they are seeing, and so many of the problems we would typically deal with, like anxious families, violence, in emergency departments. Over the years, I've dealt with a host of crisis situations through emergency departments, and that is something we have given a good bit of thought to in the last few weeks as to whether and when that could be an additional part to what we're seeing already on the lines of these emergency rooms. In quote “normal times” or non crisis times, we have families coming in who are very upset often and in these situations families are dropping their loved one at the door of an emergency department. And we're hearing stories of them waving goodbye to their family member, who they believe have has COVID-19 not knowing if or when they will see them again.
And so these ED physicians and others providing care in these emergency departments are operating on an extraordinarily high level of tension and emotion, not just from their own side, but from those who are coming through the door. So we’re giving extra thought to those violence prevention measures to ensuring that family member who might try to force themselves into the emergency department would not be able to do so and that the patients who are being treated also are being kept safe and isolated when we believe they have COVID-19, and that in doing all of that, our physicians are still able to do their job.
When people enter an emergency department, there's often, and has to be, certain signage. But that is another area we have given some detailed thought in the prior weeks. Additional signage. CMS has issued a statement saying, be very careful not to put any signage up that would in any way cause people to think they ought not to come in or they ought not to get tested. So while trying to make sure there are very clear markers of guidance and trying to help everybody through this process, we are also being very diligent on what is or is not appropriate to add to or change in our signage when people enter the emergency department of any hospital.
So EMTALA governs a hospital with an ED and applies whenever someone seeking care, who may need services, sets foot onto the hospital property. Have the federal EMTALA regulations or obligations changed as a result of the COVID-19 crisis?
They have, Morgan. Like so much else in this crisis, they have changed, and the hospital EMTALA obligations, as many folks listening are probably aware of, would always require us to have anybody that sets their foot on our property of a hospital to have a medical screening exam. If they are presenting to our hospital property and think that they may have a medical emergency, we have, as the hospital, have an obligation to perform what is called an MSE or medical screening exam and to ensure they are stable, and thereafter we could transport them or discharge them or whatever else may need to be done. But all of that has to happen, and all of those obligations really do present from the first moment someone is on the property, even if they're still in the parking lot.
But under this COVID crisis that has changed fairly rapidly and in fairly large form, and we no longer have to provide that MSE within that emergency department. We can send the patient to another part of the property, some other tent or wing or building where we may be providing services in these situations. We also can arrange to have some off-site screening, and that is appropriate as well. In regard to transfer, typically, we would have to stabilize a patient and then transfer, and under these new exceptions because of COVID we can, at a hospital, transfer a patient to a different location without ensuring they, in fact, have been stabilized. It kind of goes to this whole overlay of all hands on deck, and I do believe everybody is doing the very best that they can. So some of these regulations have had to be relaxed. These particular ones are under that section 1135 of the Social Securitry Act waivers, and they allowed HHS to waive certain requirements, and these ended up being some of the ones that were waved a couple of weeks ago in March.
Now, one thing that has not changed is the hospital’s obligation to accept a transfer if they have the capacity and capability to provide stabilizing treatment. So once the smoke clears from all of this, I think we will also see some movement in this area. CMS will look to the totality of the circumstances, and they will obviously take into account that everyone is absolutely doing the best they possibly can, but keeping in mind, too, that there may be situations where patients ought to have been taken and perhaps weren't. So we, too, are keeping that in the forefront of our mind but advising our clients that they will still need documentation even though it is so busy they will need that good documentation to support any possible EMTALA violation claim.
And I think really likely where we're more likely to see those arise in a death of a transport or a death of a COVID patient thereafter where folks may come back and say that we either didn't appropriately transfer or somebody perhaps didn't accept to transfer when they should have. So those are some other areas in the emergency department in the past few weeks that we're keeping at the forefront of our mind for hot button issues. Again, knowing that that emergency department is so very fraught with a crisis situation at this moment.
So that's really interesting, Molly, I wonder, and I'm sure other healthcare providers out there are wondering, will these changes to the EMTALA requirements, once the smoke clears and everyone is able to get back to business, if there will potentially be ramifications. What are your thoughts on that?
You know, Morgan, I think there will be, I really do, and I think that CMS will look to the totality of the circumstances. In fact, they have said as much. But I think all of us as healthcare providers advising our clients are well served to remind them, even with the chaoticness of this crisis, that they still will be obligated to document, and to document well, any such transfer and their reasons for it. Certainly if the patient's not stable, because in times of non-COVID, we would have to ensure that stability before transfer. But if we are going to transfer a patient now, and let's say, for example, that patient dies in transport or has some other untoward outcome, those are the situations where I can see CMS, and maybe with pressure from families, to look at what happened and why, and our documentation from the hospital side will be the only thing that we will be able to rely on at that point to support what happened and why. So again, just really enforcing that even though it is all hands on deck and even though everybody's moving so quickly to remind our providers at every level that in these times the documentation will really support them after the COVID-19 crisis point has passed us.
Molly, so our country has never seen anything like this. But, if we were to draw on past experiences that may have similar, albeit different, lessons learned, what are those lessons and what would you recommend to providers and hospitals in particular right now?
Sure, you know, it really is a different world than we've ever seen. But one of the closest situations that we've been drawing on is the Hurricane Katrina incident in 2005 in Louisiana. And there's a great book written on that, it’s called Five Days at Memorial by Sheri Think, who is a physician but was also an investigator. She looked at that situation from a situational ethics perspective, as in, what happens when your caregivers are so in the trenches and they have this value of preserving life and facing traumatic choices at the same time, but they were under just so much pressure.
I think there's a lot we can draw on from that situation at Memorial. That particular hospital was part of Dallas-based Tenet Healthcare, and there were a number of things that went wrong for them. They didn't have a generator mechanic on staff, they didn't have an evacuation plan. And Tulane Hospital, which was was in downtown New Orleans and owned by HCA was also dark. But they had a lot of those preplanning pieces in place when it happened, and they had helicopters and buses to rescue patients and other things that went more smoothly for them. And when the dust cleared after that terrible Katrina situation and this five days at Memorial book was written, there were a lot of lessons that were drawn on, including a physician who, under that pressure, was thought, perhaps have worked on ending patients’ lives a bit quicker, and there were some potential second degree murder charges. There were 20 or so patients who had elevated levels of morphine and passed. And so again, we know in most situations that physicians, all healthcare providers, are really doing the best they can under these tough circumstances, but there's a lot we have to keep in mind under that tremendous pressure and how sometimes we may have some actors who are not acting even under the crisis standards of care. I think once the dust settles from this, if there happens to be some healthcare providers that made those decisions, we will certainly know. And that's really where I see medical staff potential problems coming out.
I practice in Virginia, as you know, and we've been looking here, too, at this Crisis Standards of Care across the Commonwealth of Virginia over the past week and really saying, okay, with what we've got in place, what can we do to better that as we're headed towards the surge. What can we do if we get in a situation where there's one or two ventilators left and we have more COVID patients than the one or two ventilators? So I think really saying where have we been, what do we know, and in this high pace moment, what can we take from that and get ourselves as ready for the next few weeks as we possibly can.
Right, so if you're, you know, talking to a provider right now, are there certain points that they need to consider? You know, as we continue through this pandemic, I imagine things are possibly going to get worse before they get better. Are there are certain things that you would recommend to them?
There are for sure. I mentioned the Crisis Standards of Care, and that's a conversation we've been having daily really and getting folks ready for that. Maling sure they’ve looked at their policies and procedures and ensuring that hospitals are looking at their state and local emergency declarations, too. The executive orders across the country are different state by state what they encompass and what the governors of each state have asked for are really quite different, and parsing through those and then looking to the individual hospital medical staff by laws and rules and regulations and policies. Do they have a disaster plan? What does it say? Pretty much all of them do, but what do those disaster plans say? We're seeing a lot of physicians traveling to the hot spots and other health care providers, not just physicians. And if they're not part of that hospital’s medical staff, what does that mean for them? Are we counting them under disaster privileges or some sort of temporary privileges? Making sure that we're working with hospitals to look at their individual set of bylaws so that we know how to classify them and really what their staff is. And in some of these situations, those physicians aren't even licensed in this state--their medical license is in a completely different state--so that's a separate overlay is well.
And I think the last thing I would say is ensuring that each care provider is looking at each patient individually. Does the patient come in with an advanced directive, and not assuming any, ensuring that if they have that with them that you’ve read it. If the patient has a DNR or in Virginia DDNR, a Durable Do Not Resuscutate Order, those are two separate things, ensuring that we know what those say and not assuming that no care would be provided just because they are a DNR, really understanding what those orders mean and ensuring that we're providing the best care possible to each of these patients because again, I keep going back to the stressful situation our care providers are under so much stress, as we all know, and they really are doing the best they can. But we really have to take the time to look at each patient situation and understand what the parameters are for that patient.
Molly, I know a large part of your practice has been working with healthcare providers on forming patient safety organizations, or PSOs. Can you speak to that a little bit more? And you know, if I don't have one of those, how would I go about getting one set up?
Well, at this point, I think for those hospitals that are already part of a PSO or part of a health system has formed their own component PSO, they’re in a great spot. Certainly, in situations like this, we have a lot of pressure on these healthcare providers, and being part of a PSO gives that provider an opportunity to kind of go into a safe space and to peeled that onion back and learn from whatever may, and hopefully when the dust clears to use the things that they have learned in this COVID-19 crisis to improve patient care going forward.
For hospitals that are already part of a PSO, they're going to have what's called a PSES policy, a Patient Safety Evaluation System policy, already in place in their hospital. And if providers there aren't sure, they can certainly check with any administration or their patient safety officer within the hospital. Make sure they look at that. Again, I go back to the safe space, they could go into a conference room and talk about what happened in a particular COVID-19 patient. It doesn't have to be written information. It can be verbal conversations that are protected and confidential and never subject to discovery down the road. It does not absolve that hospital from the editorial board obligation. Certainly, if they have a code of death or other similar mandatory reports, they will need to make those. But that's separate and apart from their ability to really analyze what's going on with that patient care, to learn from it, to better the future COVID-19 care, and then after this whole crisis is over, to ensure they’re in a better position for the future.
For providers who are not already part of a PSO, at this point there, they will either need to wait or they can reach out to what we call commercial PSOs on the market. There are a number of them. Quantros, Ecree. There are a host of them, and they can contact one of those commercial PSOs and enter into a relationship where they sign a contract and pay a fee each year to be part of that PSO.
If they want to form their own, I think they will need to wait till the crisis is over. And a third option is if they are in a state where the hospital association has a PSO, many states have formed their own hospital association-based PSO, they could also contact them and see if there might be an opportunity to join in short order one of those particular PSOs.
Great. Well, that sounds like a good option, and definitely something that providers should explore right now. I'm curious, you know, as your helping you’re helping your clients navigate this challenging time, are there certain newspapers, magazines, books, things you're reading right now to keep your perspective and help as you're advising your clients.
You know, I probably speak for many healthcare attorneys like myself in that I feel like we are all breathing a lot of the day right now with everything changing so much. But sort of in my own time, one book that I reached for on the bookshelf this past week was a book called What Doctors Feel: How Emotions Affect the Practice of Medicine, and it’s by a physician named Daniel Ofri. I had purchased this book several years ago, a handful of years ago, in my own practice to read it and to better understand how many of the providers that I worked with and represented might feel in a day to day situation separate and apart from the legal landscape, and I remembered a chapter in that book from several years ago, chapter four, and it’s called “A Daily Dose of Death,” and I just think that understanding, as attorneys, where our clients are coming from, whether it's these physicians and nurses and the level practitioners on the floor or the hospital administrators, is so important at this particular time. And I think the weeks and months to come will further clarify what scars and problems have been left with these providers in the wake of this crisis, potentially CPS PTSD for some of these providers, and that, too, will change what we as advisers to hospitals are needing to consider as risks post crisis. So I just found that to be really helpful to me, maybe it will be other healthcare attorneys as well.
Great, awesome. Well thanks so much for joining us today, Molly. Really appreciate your perspective during these unprecedented times and look forward to talking again soon.
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