AHLA's Speaking of Health Law

Preparing for Patient Surges Due to COVID-19: What Counsel Need to Know, Part 1

April 08, 2020 AHLA Podcasts
AHLA's Speaking of Health Law
Preparing for Patient Surges Due to COVID-19: What Counsel Need to Know, Part 1
Show Notes Transcript

In Part 1 of this podcast series on what counsel need to know to prepare for patient surges due to COVID-19, Andrea Ferrari, Partner, HealthCare Appraisers, speaks with Tom Donohoe, Vice President & Deputy General Counsel, SCL Health, and Joe Wolfe, Shareholder, Hall Render Killian Heath & Lyman PC. The podcast covers issues related to provider staffing needs and staff shortages, including incremental staffing arrangements, provider redeployment, provider standby availability, and provider income protection. From AHLA's Public Health System Affinity Group of the Hospitals and Health Systems Practice Group. Sponsored by HealthCare Appraisers.

To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.

Speaker 1:

Support for A H L A And the following message comes from healthcare appraisers, fair market valuation experts. As a pioneer in its field, healthcare appraisers has valued tens of thousands of healthcare transactions, allowing it to gain an in-depth and unparalleled understanding of the healthcare industry, admits to an ever-changing landscape of regulatory oversight. For more information, visit healthcare appraisers.com.

Speaker 2:

Welcome to today's, to today's podcast, what council are asking about and need to know to prepare for patient surges, provider staffing. This is one of the series of podcasts that focuses on legal and operational questions for providers during the Covid 19 emergency. I'm Andrea Ferrari, partner at Healthcare Appraisers, and we're proud to be providing financial support for this podcast. The podcast, uh, is part of a series and a project, uh, of the A H L A Public Health Systems Affinity Group, which is a group that I chair, um, and the series is focusing on various novel and important questions that we're gonna be dealing with over the next few months due to the conditions created by the COVID 19 emergency. These are questions that, uh, may define how and how well we as a society manage and maintain public health and safety through this unprecedented time. Given this backdrop, I wanted to thank A H L A for providing a forum to discuss what I think are really important issues. And I wanna thank the panelists for this program for taking time out, uh, in this exceptionally busy time for them, uh, to share their thoughts and observations for the benefit of others. Uh, I would probably also be remiss if I did not also thank my wonderful colleagues at Healthcare Appraisers who have shared many examples of analysis they're seeing and solutions that they've offered. And in order to inform this discussion, I'm gonna give a special shout out to my colleague, uh, Luis Arso, uh, who's been modeling hazard pay premiums and helping, uh, so many of our clients find solutions, uh, for the better part of two weeks. And he's been very busy. Um, I wanna take a minute to introduce our panelists. We have with us today, Tom Donahoe, who's vice President and Deputy General Counsel of SEL Health, a nonprofit faith-based health system serving various Western states, including Colorado, Kansas, Wyoming, and Montana. In his role, Tom provides primary legal support and advice on system-wide transactions and a variety of legal issues. We also have Joe Wolf, a shareholder at home render, whose specialty is navigating legal issues related to physician compensation. Uh, during this pandemic, much of Joe's work has been focused on helping hospitals and health systems to develop, uh, contracting and compensation strategies that support covid 19 coverage, including the redeployment of specialty providers and the development of new and modified arrangements to address excess capacity and, uh, potential immediate and long-term needs. Uh, this podcast is, uh, one of two parts. The first part, uh, that we are covering today is going focus on common questions and issues related to meeting providers, staffing needs, and addressing staff shortages and related concerns. These questions and issues are in four categories, incremental staffing provider, redeployment, provider standby availability, and provider income protection. Uh, the second part we'll focus on space supplies and equipment needs, and common legal and operational questions related to addressing concerns about matching needs and demands in those areas. Although I introduced this program, uh, we're gonna take turns being the interviewer and interviewees, and, uh, I think Tom wants to be the first to ask the questions. I'm gonna turn things over to him.

Speaker 3:

Great, thanks. Thanks, Andrea. And it's a pleasure to be on this podcast. Obviously, an important time for, um, our organization. And I know a number of the, the clients you serve, and it may just be worth taking a, uh, a couple of seconds here before we get into the, the, the first topic here to, to talk about what a surge even is. I think a lot of folks are hearing that term around the country, and in the reality is a number of different states and different locations are in different phases of what we characterize as a surge, and that's really an, an influx of patients due to covid 19. And then as those patients come in, how do healthcare facilities really flex their space and their resources, uh, to accommodate those, those, uh, patient surges? And I think we've all been watching the media to some degree and seeing the different curves and everything and, and how those surges could potentially occur and, and whether they may be significant based on social distancing and other standards, um, or if they could be more flat, which I think we're all hoping to accomplish. But in any event, I think, uh, again, our, our organization and, and a lot of your clients and Joe's clients are probably, uh, preparing for, uh, not necessarily the worst case, but obviously significant situations where they can hopefully accommodate patient need. And, and really the focus of this, this segment was on that, on that provider staffing piece. It's, it's one element of what I would characterize as surge planning. Um, but an important element, uh, providers are, are a finite resource, I think to begin with. And in a pandemic, uh, become an even more valuable resource. And I think you've bucketed fairly well the nature of kind of the provider staffing arrangements we're seeing come into play, uh, as part of these, of these surges, and, and I'll just repeat'em for a second. I, I think they're fourfold that we'll talk about are kind of incremental staffing arrangements, uh, provider redeployment, uh, providers, standby availability where maybe that resource isn't needed, needed, uh, immediately, but may be needed, um, eventually. And then finally, um, arrangements where you are addressing provider, uh, lost income, uh, as a result of maybe the loss of electric procedures as part of a state, uh, and federal mandate, um, or otherwise. And, and how you're accounting for that. So as we head into that, I'll, I'll throw the first question out to either you or Joe to, to maybe talk a little bit about what, you know, what, what's it, can you provide an example of what a, an incremental staffing, um, arrangement may look like, uh, to accommodate a patient surge? And then what types of questions you're receiving and, and maybe the challenges that your clients are finding with, with respect to these types of arrangements.

Speaker 4:

Yeah, thanks, Tom. Um, this is a, again, Joe Wolf from Hall Render and, and Igo, um, Andrea and, and Tom's comments before about, um, how it's a privilege to be able to, uh, participate in this and try to help organizations as they've worked through this very challenging environment. Um, as Scott, uh, as Tom teed up we're, we are speaking about a few concepts here. And the first one here is incremental staffing arrangements. Um, I think we are borrowing some of the concepts, uh, that we've seen historically, um, in, uh, physician arrangements. And, and typically when we're talking about an incremental staffing arrangement, we're talking about some type of arrangement that captures incremental or additional work effort. And, uh, we are seeing the development of incremental staffing arrangements where, uh, clinicians are being asked to do more, um, at, and as Tom mentioned earlier, across the country, as different organizations are, are responding to different levels of need right now. Uh, they're asking for their clinicians to do more, and I think they're e either clinically or administratively right now. Um, we're seeing, um, situations where clinicians that are under an existing employment agreement are being asked to, to take on and perform extra additional services, um, many than, than was originally, uh, included in the original contract, um, from a legal and contracting standpoint that might, uh, you know, entail an amendment or an addendum to the existing agreement. Um, we're seeing that with many types of, of providers or clinicians, not only physicians, but, um, advanced practice clinicians and, and, and other types of clinicians, um, uh, at, at other levels, including nurses, um, and other types of care providers. Um, in with, with respect to developing this kind of incremental or additional capacity, um, beyond, um, clinicians that already have arrangements, we we're seeing the development of clinician pools that can be accessed as needed. I think we'll talk about that a bit later in the standby arrangements as well. But, uh, having, uh, contracts in place with providers that can be scaled up, uh, as necessary to meet the need will become, I think, more important. Uh, and that that involves not only engaging the, the clinicians, but also the scheduling dynamic. And we have to think about now how to structure those arrangements. Uh, do we do them as employed or as independent contractor arrangements? Uh, there's questions about documentation. Uh, we've helped organizations develop very short, uh, template documents, um, two pages or less, uh, that, uh, really lay out the bare bone concepts of, of what, uh, that arrangement entails. Uh, when the arrangement would start, is it immediate or is the provider on standby, uh, until they're ultimately needed? Uh, when will the arrangement terminate? You know, is that gonna be driven by the, uh, conclusion of the national emergency? Is that on five days notice? Uh, there's a few different ways you can approach that. Um, how scheduling is gonna be wor going to work. We're seeing them, uh, developed where it's mutually agreed upon. Um, and then, then there's some contemplation of, of how staffing would, would, would surge up, uh, based on what the organization's doing internally. Um, there's a lot of questions that emerge, um, around the clinician's obligations when activated, um, and, and scheduled. Uh, if the clinician is already working for the organization, that may not be as challenging. They, they likely already have medical staff membership, uh, may have privileges, likely have privileges already, and may already be falling in line with the policies and procedures. Uh, but for other clinicians that are gonna come online, uh, they may need to obtain the, that medical staff membership. They may need to get accelerated privileges. Um, we may see clinicians that have, have to have expanded privileges. Uh, so it, it's helpful to capture, uh, at least some of that, um, in, in a very short, uh, contract. Uh, you may need to develop, uh, policies and procedures to react. Um, also, uh, in these types of arrangements, you need to be thinking about the payment for the services and the necessary documentation. Uh, we're seeing many organizations develop an hourly rate approach. Uh, perhaps if, if the, uh, clinician's an independent contractor, there'd be some type of invoicing, uh, process, um, hopefully, um, there, there, there, there has to be a development, the, the development of a defensibility strategy, um, down the line. Um, if you need to rely on a, a stark exception or look to rely on the new stark waivers, uh, you wanna make sure you've covered those bases, um, a a as part of your contracting strategy. We've been asked in the compensation, uh, around compensation, about the development of hazard pay premiums, uh, more recently. Um, I think if you're going to develop, uh, hazard pay premiums, you'll have to give some thoughts to the, the types of, of clinicians that would be eligible for hazard pay and develop some, uh, a, a, an approach around, uh, those, those hazard pay, uh, premium concepts. I think those could become more prevalent as the, these types of, uh, incremental arrangements may will become more prevalent as the pandemic continues to spread and, and more providers at risk of coming in contact with the virus. Uh, we could see the development of more, more of those hazard pay concepts. Uh, a couple other things to think about our billing and collection, uh, payer credentialing. Um, most organizations we're working with will bill and collect, um, under these arrangements. Um, so, uh, the clinician would need to help them seek reimbursement. Uh, actually we've seen, uh, some organizations build in language around the clinician agreeing to, uh, provide documentation to help the organization seek aid. Um, from the, the, um, the, the new aid and funding programs that are being developed, uh, organizations are thinking about professional liability and what type of insurance coverage is going to apply. And then lastly, uh, it's, it's a rapidly developing, uh, consideration is the issuance of the new stark, uh, waivers. And I know we're gonna talk about this later as well, or we likely will. Um, but it's, it's important to think about how these types of arrangements are gonna fit into the stark waivers if you're going to rely upon them. Um, if you're looking at these as new arrangements with a new provider, um, the arran the analysis seems more straightforward. I would say that, that you likely, uh, could fit that arrangement within as, as the stark waivers. Um, if they are, uh, they're gonna clearly be, uh, tied to the COVID 19 coverage, um, and they likely would not, would be entered into, um, within the pandemic, uh, or the national emergency period, and likely would shut down at the end of the pandemic. And so that, that likely would fit within, uh, the current state, uh, of the, those waivers. Um, I, I do think you would wanna maintain documentation that could sh you could show to CMS later, like you're required under the waivers around the rationale and how these arrangements relate to covid 19, um, and, and how they were, uh, terminated at the end of the emergency. Uh, I, I think it still is best to use a, a very simple document like I mentioned earlier, um, if, if you can, uh, so that you preserve the, the opportunity to, uh, rely on one of the stark exceptions, uh, for purposes of compliance down the road. And, and it's always nice to have a template on standby, uh, for that situation as it occurs. So those are some le legal considerations related to incremental arrangements. Tom.

Speaker 3:

No, that, that's great. Joe and I obviously a lot to unpack there, right? And, and very unique to those types of arrangements. And I think, you know, you've outlined, uh, a wide array of considerations beyond just let's just paper this arrangement and get some folks in. You know, I think you really detail out a, a number of additional considerations that, that folks are gonna have to think about, uh, particularly as they're rushing to get some of these in place on a, on, on what is likely a pretty truncated timeline. So pay, I mean, pay is always you, you mentioned that, Joe, uh, and, and you, you mentioned hazard pay premiums in terms of, uh, payment under some of these arrangement. Uh, Andrea, I'm curious, and you said your colleagues been helping with some of these as well, but you know, how are you approaching, you know, payment? I mean, is it really just payment for additional services? Are there premiums, uh, involved? Are, are people requesting those, you know, how, how are you seeing that play out as you're asked to value some of these more unique arrangements?

Speaker 2:

So, in, in answer, maybe going back to your first question, I think the most common scenario for a request for incremental staffing right now anyway, is around the icu. Um, and, and having additional coverage for the ICU u whether that be physician coverage or other, uh, providers, uh, with respect to physician coverage. I think, um, the question is, are you getting that physician coverage from an existing provider, um, or an existing physician group that might have, uh, some capacity to provide some additional coverage, another person, um, or longer shifts or so, or something like that, um, and or are you going outside and getting it from, uh, another provider who, uh, normally you wouldn't contract with in either case? I think that there are some, uh, interesting questions that we have come across, um, related to whether the pay that an existing provider would, uh, get is, is going to be sufficient for the current, um, on an hourly basis anyway for the current emergency, given that there's this potential exposure, uh, to disease. Uh, the conditions, um, might be, um, a a little less, uh, desirable, for lack of a better term than what folks might be used to. Um, their patients that they're expecting in the icu, in the Covid 19 emergency, um, have a very, uh, acute needs. Um, and so there's a higher level of intensity of services. Uh, there's question for some providers about the extent to which their liability insurance will cover, uh, them for any, anything that happens in the course of the care that they're providing. Uh, and given all of that, uh, I think there's a recognition that the services, uh, that might be provided incrementally are extremely important, but they might, um, have a, a different worth or value, uh, than just your ordinary course of care services. And so those are the, the types of questions that we're dealing with, um, in particular related to issues around liability insurance, on exposure to disease, um, and what happens, uh, when you have an existing contract with a provider and you need to, uh, amend that contract or add additional staffing, uh, through a separate contract that might be with the same provider, um, and how you accommodate, uh, the fact that you have a way of doing things that you, uh, step two up to now, but now have to make a transition to a new payment model to accommodate the emergency. So a lot of interesting questions, I think, on the incremental staffing side, and some of those overlap, as Joe mentioned with the provider standby availability question, uh, do you staff incrementally for what you expect to be, uh, needed, uh, to make sure that you have everybody ready? Uh, or do you just have everybody sort of, um, on call, uh, without any additional compensation and at the ready should they need to be activated? I think that's a question that a lot of folks are, are asking as well. Uh, many of our clients are deferring to let's, let's get people engaged, have them in the hospital, have them ready, because we're gonna need them, uh, on an immediate basis given the situation nationally. Although I think it, it varies probably by region to some degree.

Speaker 3:

Yeah, no, I, I would agree with that. And I'd almost say that, you know, you, you're seeing the incremental staffing arrangement or even, you know, modifications to existing arrangements come into play kind of as that first option, whereas the standby and even the redeployment, um, types of arrangements are the ones where you have a little bit more lead time, uh, to plan for, you know, one q one quick follow up question for you, Andrea, and something you mentioned that I I think we're beginning to see a little bit to here is say you have an arrangement, an existing arrangement with a group or a physician, and I think you had articulated may contemplate one, uh, a, a certain compensation structure, but now you're offering an hourly or another type of structure for the, uh, to, to treat pandemic patients or to accommodate the coverage that you need in, in particular where you're applying a premium. Have you had the question or, you know, a concern raised around, well, hey, my normal course arrangement, I'm getting paid worse than I now am under my, you know, pandemic type arrangement, you know, what's up with that? I mean, are, are you getting that concern? Yeah, we, we've heard some rumblings of that, although we haven't had to deal with it directly yet.

Speaker 2:

So is the question whether, um, pro providers who are brought in for incremental staffing are getting a different arrangement than those who, uh, are under existing arrangements? And whether that's creating a concern for, for parties who are under the existing arrangement? I think more often, uh, than not, folks are, are thinking about that issue. And, um, I mean, this is sort of painting everything with a broad brush, but, um, there's I think a recognition that the emergency is affecting everyone, uh, in including those who are continuing to provide care in the setting that they've always provided it or, um, in the timeframe that they've always provided it. Um, and, and so there is some, uh, adjustments to pay, I think even for folks who are normally in the icu, um, and just might face more acute conditions now, um, and, and might be facing a different set of circumstances than they would, I think there's an assumption. Um, and at least that's something that, that underlies all of our analyses, that whatever premium is paid, uh, would only be for the duration of this emergency, and when the emergency conditions are over, uh, compensation would go back to the normal level.

Speaker 3:

Yeah, no, that makes, that makes a lot of, a lot of sense in, yeah, that is, that's definitely responsive to the question. Um, so let, let's maybe shift gears here to the kind of the one, the second bucket of, of types of arrangements that, that we're seeing beyond just incremental staffing, uh, to, as it relates to existing and, and potential, uh, future arrangements. And, and that's the, the provider redeployment arrangement. Um, so Joe, maybe talk to us a little bit about what one of those might look like and, and, and maybe some of the more unique, uh, challenges, some of which we may have not talked about yet, that, that, uh, that health systems and, and even provi and providers in some situations may face

Speaker 4:

Thanks, Tom, and, and what we are seeing in, in some markets or the need, uh, to redeploy types of, of providers, uh, in anticipation, you know, for, uh, the surge and as, as, as we talked about earlier, there's different levels of surge going on right now, but I think there is a more broadly, uh, nationwide, um, some, um, actually broad, uh, excess of capacity in certain specialties due to the pause, uh, that was put in place a around procedures back in, um, I believe it was on March 19th. Um, and, and partly because of that pause, um, we are seeing healthcare organizations look to, um, engage that excess capacity, um, for, for clinicians that have skills that are needed, uh, to be part of the COVID 19 response, um, that, that repurposing is, uh, one place we're seeing it, I would say is, uh, more than others is with anesthesia. Um, they've experienced reduced procedures, uh, since that, that pause. Um, many anesthesia providers are being repurposed to help with intubations and, and airway management. Uh, this is actually gonna be a critical skill, uh, for covid 19 patients. And it's something that, uh, was experienced in, in China and Italy, uh, in their response. And I think we're seeing the same thing here, um, with, with anesthesia and, and with some other specialties as healthcare organizations look to repurpose. I think some of the challenges here, uh, that, that we encounter when, when looking to develop a, a repurposed strategy and the arrangements are, uh, identifying the appropriate specialties, uh, forecasting the need, and then adjusting the contracts, you know, for any specialty, uh, that can involve often, you know, that's gonna involve looking at their contracts and, and the compensation plans, uh, and the coverage capabilities, and, and then forecasting out the staffing and planning, uh, necessary to make sure you have the capabilities. And it is gonna take a look. You're gonna have to take a look at, uh, your different specialties on a specialty by specialty basis. Um, you're gonna have to look at those arrangements. Um, and, and depending on the specialties, uh, clinical capabilities, you know, they might be the right fit, but it could be more challenging, aligning the underlying incentives. If I go back to the examples, an anesthesia, you know, many anesthesia providers are paid under a fixed type compensation model, uh, often salary, salary or hourly. Um, some have, uh, some type of productivity component on top of that. Um, and if they have a productivity component, you might want to explore transitioning that model to more of a coverage model, uh, that accurately would reflect their work effort during the pandemic. And I think that's for any specialty as you look at repurposing them, uh, is the, the productivity model still the right fit? Uh, do you want to try to incorporate these new services into the existing compensation model or someti or some way look at these as a new service, um, and a new arrangement. Um, when, when you look at, uh, repurposing, um, when you do do that transition, I think it's important to make sure that the, the new model and the new coverage accurately reflects their work effort, uh, during the pandemic. Um, if they are paid hourly for that work, um, you know, potentially, uh, for anesthesia especially, you could keep them in their current model and maybe adjust the model if they have, um, an increasing work demand and coverage hours. Um, but again, this is gonna be really a service line by service line specific analysis that's dependent on your strategy as an organization and your covid 19 response. Uh, we've seen organizations take the approach of, of looking to repurpose, um, in order to build up capacity, um, for other organizations, and I think we'll talk about this later as well, that are seeing reduced, um, work, uh, and demand right now. They are taking other strategies where they're actually scaling back, uh, provider work and provider compensation as an alternative rather than repurposing. So I think in many ways, um, there's, there's a lot of options on the table, but for organizations that need, uh, to, to develop and increase, uh, their capabilities and have the ability to repurpose some physicians, I think, uh, some of the, uh, concepts I just described are, are the efforts you'd have to take to, to make that work. Um, some, some last thoughts on this, um, are also relate to, um, like we talked about before, with respect to, um, the, um, credentialing of these providers and ensuring they ha they're appropriately, um, credentialed internally. Uh, make sure that, that you run down, um, any issues with your, um, mal pa malpractice coverage, um, and the scope of services that these providers are, are performing. Um, make sure that the appropriate levels of of cross-training, um, are involved as necessary and oversight. Um, if you have, uh, providers that are, are working in areas that, um, that they traditionally may not have have worked at at such high levels, you wanna make sure you run down to make sure that there is a, um, an appropriate level of, of clinical capabilities when they're doing this kind of work. So those are some of the issues we're running down.

Speaker 3:

Yeah, no, those all make sense. Joe, I'm kind of curious, you know, on your thoughts, particularly where you have a, a hospital that's asking, asking a, a provider who again, doesn't have ex as, as much as, or any experience in a certain, um, specialty or line of work, and, and they're asking them to redeploy into that, um, into that line of work and, and, uh, and, and help with the cause. Do you see a lot of questions or requests from providers who hesitate and say, Hey, can I, can I limit liability? Can I get a release or a hold harmless or something because now I am entering into waters at your request where, you know, in a pandemic where while I may have been cross-trained and I'm getting up to speed on things, I don't have the same level of expertise that I have in my normal specialty. Are you seeing any types of concerns expressed by providers there?

Speaker 4:

Yeah, I, I think most of the focus has been on the providers side of running down, uh, to make sure that the appropriate, um, coverage is available for these providers and to make sure they're taking the steps they need, uh, to make, to ensure that the, the credentialing is, is, is handled appropriately and that these, uh, individuals have appropriate privileges for the work they're doing. Um, so I think that, that most of the focus has been on, on that end. Um, with respect to the, the providers that are, are stepping up to help, um, I, I think organizations that I've been talking to are, are ensuring that they're extending the coverage necessary to protect those providers. Um, I I have not seen as much focus on the hold harmless, um, from the clinicians. Um, at this point, you know, many of them, uh, to this point have, have been employed. Um, and from an independent contractor standpoint, um, for, for arrangements involving independent contractors, even outside of the repurposing we're talking about, we have seen more, uh, comfort with, with ensuring that they fall under the, that coverage as well.

Speaker 3:

Right, right. No, that, again, makes a, makes a lot of sense and sounds like reasonable, uh, risk mitigation, uh, strategies are being deployed in those situations. So, Andrea, turning back to you. What, what, if any, are any kind of unique compensation type issues are you seeing as, again, these providers are venturing into new spaces where they haven't typically provided services?

Speaker 2:

So I think there are a lot of questions around the redeployment arrangements. Um, we've already mentioned the, the concept of hazard pay, and that's certainly, uh, one that comes up in, in all of the compensation questions and all four of the categories that we're talking about. Uh, with redeployment, there are some questions about pay parody. Um, if you're taking a neurosurgeon or an anesthesiologist, um, who, whose normal compensation is, uh, at a fairly high level, uh, given the nature of the services that they typically provide, and you're putting them, uh, in a different setting, um, where it's not even clear, uh, the extent to which there would be billing and collections for their services. Um, and the credentialing is still sort of a hurdle you have to get past, um, is, is the pay, uh, commensurate with what their typical pay is and perhaps even subject to a premium for hazard and for other things, um, or is it going to be something less? And I think that really is driven by specific facts and circumstances. Um, one of the other things that Joe brought up that I think, uh, influences a lot of the question and answer around, um, the pay and other things is level of liability, uh, that the physician might have, if an, if any, um, is there going to be indemnification for the physician while they're providing typical services? Um, does their insurance coverage, uh, apply? Um, or will they need, uh, additional or alternative coverage and, uh, is the the hospital going to provide that or is that something that they're responsible for on their own? So a lot of those questions, um, are like these combined legal slash compensation questions where council and uh, folks like us will kind of work together to parse out the details and understand where the compensation should be, uh, on the scale. And I know Joe mentioned this, and we are jumping ahead a little bit cause it was one of the topics that we were going to cover a little later, but, uh, with the stark waivers, you know, there, there's a lot of discussion about how much leeway there is, and I think that, um, there probably is some leeway, but I think there's also, um, a recognition at least among our clients, that folks just want guidance. They're not really even sure where to start, um, in making the decisions. They wanna make sound and reasons, reason, decisions because, uh, not only are there legal risks, but they're also financial risks and, and everything that's going on. Um, and having some understanding of where to start and what questions to ask, um, and what's important to consider, uh, I think is gonna be really important for folks going forward with a lot of these novel types of arrangements because we don't know how long, uh, this crisis is gonna last and we don't know what the eventual outcome is gonna be, um, financially from a public health perspective, uh, and so forth.

Speaker 3:

Yeah. And, and, and as you were making those comments, Andrew, and this, I think this could go to Joe or, or yourself or, or maybe you both have some, um, some thoughts to give on this. As I look at particularly, again, our organization's position, we're, we're primarily in Colorado and have operations in hospitals in in Montana, uh, as well. And so we're, we're just kind of getting to the, to, to the, to the point where we're seeing more patients in our facilities that are, are testing positive and our resources are starting to get stretched, but we're certainly not in a, a New York or another type scenario where, where folks are really, um, you know, at their max, if not beyond their max with what they're seeing. So a a as we just maybe to pause here for a second. As, as, and I don't know if you've advised clients in some of these hotspots or these areas that are already well into their surge, is their thinking and their, their choice of the, the type of arrangement that we're looking here, uh, you know, is it, um, does it lean one way or the other? Do you see less discipline because they're under stress circumstances, um, in how they're treating it? I'm just kind of curious to get your thoughts, particularly as you're advising clients maybe in one situation versus the other and, and how they're approaching even a number of different things that we've discussed.

Speaker 2:

I I wouldn't say that there's less discipline. I just think that the questions, uh, that you might be thinking of and the most pressing issues for them might be different. Uh, the situation is pretty fluid for most people, uh, or most hospitals. I think they're at different points on the spectrum as far as whether they're in the preparation or response mode. And I think as you progress from preparation or through preparation to response, the things that, uh, uh, become important might shift a little bit. Um, and so although I think, uh, everyone's kind of thinking about the big picture and there's a lot of similarities in the themes, uh, related to the type of question and the type of issue that, that folks are dealing with, where they are in, in the spectrum of preparation or response, really, I, from my perspective is, is dictating what it is that they're focusing on, um, and where they're having to pivot. And in some cases compensation becomes something on which they have to pivot, uh, even after they've made a decision a few weeks earlier because the circumstances have just changed. Uh, the provider ability has a availability has changed, uh, the needs of the patients have changed, the census has changed, the state of emergency has changed, whatever it is, um, or some new fact has been learned about, uh, the ability to bill and collect. Um, an assumption that you might have made about that early on is perhaps not valid anymore. Um, and so the, the, the questions don't usually end after, uh, they're initially asked and answered. They may just evolve over time.

Speaker 3:

I, I think that is, that is great perspective, Andrea, and it, um, it, it's certainly aligns I think with a couple of things. First, I, our own experience. And second, it, just hearing your comments, you can, the way you talked about from, from planning to responding, I think that's a very real thing. And, and just as you kind of went through some of your comments really describes kind of the on the fly type of decisions and approaches people are supposed, uh, or, or, or are taking, uh, under these circumstances. So no, I, great, great perspective. So, so let's maybe shift to the third type of arrangement that, that I think Joe, at least at the outset of the, of the podcast had alluded to to some degree when he mentioned some of these, uh, pools that some clients are looking at establishing that are still maybe in that planning mode and have the luxury of kind of building up their resources. So maybe be it that one Joe or, or maybe some others. What, what, what does that arrangement look like? What are some others that you're, that you're seeing look like, and and, and what are the challenges that are unique to those that you're seeing?

Speaker 4:

Yeah, thanks Tom. And, and I think as, as you mentioned, and I mentioned earlier, that these arrangements and in my mind are similar to the incremental staffing arrangements. Um, you know, the hope for all, I think healthcare organizations that is, that these clinicians, they're engaging in, in some type of a pool or standby arrangement will not be needed. Um, the arrangements that I have worked on and the, the models that I've developed, uh, to date have only, um, worked o only compensated physicians, um, in, in the event that they're activated, um, on an individual level. Um, I think that, um, you know, I'd be interested to see if Andrea has, has explored, uh, standby type arrangements. I, I guess I, I would suppose if you have a, a, a, a larger, um, professional services agreement with, uh, a, a group that, um, that has some, some excess capacity and they're repurposed in some ways, they're a standby, uh, type arrangement. Um, but, but in, in, in the individual models that I've, I've worked on, um, and templates that I've helped develop, they only pay the clinicians upon their actual, uh, activation, um, with these standby arrangements. Um, I think that the legal issues and the legal challenges, um, are, are become more complicated, uh, as you broaden the, the pool of standby providers you're looking to, to activate. Um, I've had organizations that are looking to reach out to, uh, retired providers, um, that are, are reaching out to some states are, are waving in, um, providers in their final year of, of medical school. Um, and so as you look to, uh, broaden that, that pool of, of providers and clinicians, you're gonna have, um, some, some different issues. Uh, another pool of, of, of providers I've encountered is, is also volunteers. There's a, a, a significant number of clinicians that are volunteering, uh, to provide, uh, coverage in this way as well. So again, as you broaden the pool, uh, to these additional types of providers in, in different, um, um, um, le levels of, of retirement versus a medical student, um, versus those that are, uh, licensed in other states and many states have, have waived licensure. So, so you're gonna see more and more of that providers coming in from other states, uh, that that can, uh, build some additional complexity, especially around the need to credential, uh, these providers, uh, especially around the need to talk to your malpractice carrier. Um, some of these clinicians, um, are, are again, only gonna be, uh, providing services when they're activated. And so it, it raises the question where are they providing services when they're not activated? Are they, uh, performing services at another facility? Um, how does that work from your malpractice carrier standpoint? It's likely your malpractice coverage would look to, uh, cover them while they are, you know, performing clinical services within your facility. But, uh, as it becomes more fluid and they're providing services at, at more facilities, I think it gets, um, a a bit more, more challenging. Um, so I mean, there, there's a, again, a lot of overlap here. Um, with the incremental arrangements we talked about earlier, I think that you could, um, incorporate and use the same type of documentation for, uh, standby providers. As I mentioned, a very similar template type document. Um, if you're going to use, uh, some type of a written agreement, you're going to need to step through many of the same, uh, questions that we talked about earlier around billing and collecting and credentialing and, uh, ensuring that, uh, uh, you, you get them aligned on the professional liability from a profession professional liability standpoint. Um, and thinking about, um, an overall defensibility standpoint from a stark standpoint, a stark compliance, I would follow a similar documentation approach as we talked then we talked about in the incremental piece. Um, I'm, I'm interested to see, um, if Andrea has other thoughts as well. Um, one thing I, i, I alluded to earlier is, again, I haven't worked on a standby type concept where there's paid standby. Um, I, I'm wondering if, if that will develop, uh, in the future, um, when we think of standby type arrangements, we're usually thinking about, uh, call coverage, uh, concepts in, in the current market, uh, where we start to think about, uh, the physician's burden and some type of response time and their agreement to be available a certain amount of time. I imagine if we got into, uh, standby concepts, those would be some of the, the ideas we would be, uh, exploring if as we developed a new contract. And so those are some thoughts on standby.

Speaker 3:

Yeah, and I, you know, it's interesting, Joe, as you were saying that even another situation that could, could develop, and I will, I'll be interested to hear Andrea's thoughts both on kind of, I think you articulated an activation fee type model and, and paying for, um, paying for them while even they're not even providing services, anticipating that they will, as you know, provider resources will become scarce at some point, right? At, at, at some point, you know, you're gonna start going through providers either because they get sick or you just don't have enough to provide coverage so that there may be more of an appetite, uh, in that type of situation to pay for them to be available. Uh, because if you don't lock them down, you could have them potentially go to, uh, either another facility, uh, in a local area, or we've seen calls from different geographic areas, uh, for providers from out of state to come in and help, uh, to some degree. So, but, but with that thought, I'll, I'll turn it over to Andrew to see if she's got some insight on maybe a couple of those compensation pieces that were mentioned.

Speaker 2:

So we are already seeing, uh, some payment activity first and by coverage. And as you point out, uh, Joe, the concepts are kind of similar to call coverage. I think where it's coming into play. Uh, the, the idea of paying somebody for availability, um, is in areas where there's already a shortage of providers, um, areas that might be remote, uh, and or rural or might have recently experienced some other disaster, which has caused flight out of the area and, and meant that there's a limited supply of providers. Um, and those areas that have already gone past preparation and are now in response and might have, um, such a shortage that unless you have the provider kind of locked up, there's no guarantee that anyone's gonna be available in the timeframe that you need them to be available. So, uh, I think there are various circumstances under which, uh, even now, uh, there are payments for the standby availability. And, and, and those certainly make sense, um, from our perspective, and they are analyzed, uh, somewhat similarly to, to call coverage in terms of the way the compensation might be paid. Um, there's some additional factors that I think come into play, uh, with the Covid 19 emergency that are maybe outside the scope of what you would typically see in a, an on-call arrangement. Um, one of them is the, the acuity of the, the patients that you would expect in a covid, uh, uh, situation where someone is called in. Um, and, and going back to the concept that we discussed, uh, several times already, the hazard pay, uh, concept related to the fact that these providers, if they are called, will not only have to drop everything, but would potentially be exposed, um, to an infectious disease. Um, and, um, they're putting themselves at personal risk in addition to financial risk and, and all the other factors, uh, that go into the, the idea that physicians should be paid for their on-call availability or, or other providers for that matter.

Speaker 3:

Yeah, no, I think those are all, all great points, Andrew, and I think they all kind of vary, kind of at least those latter ones in particular unique factors to kind of how you're looking at, at, at that particular type of arrangement in that standby situation. Um, so, so shifting gears again, maybe over to a, a question that I can't imagine you're not getting, uh, and, and certainly one that I think is on the minds of both facilities and providers through all of this is, is the, the concept or the reality of, of lost income. I, I think I mentioned this earlier, just hot on the hospital side, we're, we're having to cancel elective surgeries, um, having to clear space and, and, and take other measures that are, you know, causing lost income, um, because they're being replaced with, uh, with lower revenue generating type of, uh, care, but also, uh, because there's incremental expense with, with all the care that's being provided as part of the, the COVID 19 response, which all, uh, contributes to this loss income. And as you look at the CARES Act that was, that was passed, uh, just in the last few days, there was a, a lot of, uh, funds made available to providers to tap into as part of that and other mechanisms that are being deployed. But, you know, a lot of the providers in particular, and go back to that elective surgery, if you, you have a surgeon who had a bunch of scheduled cases is on a productivity model type of contract, they're obviously going to be directly impacted. And, and there may be some mitigation that might come in an incremental staffing or redeployment situation, but you know, by and large, they're gonna face a, a drop in their income. So, Joe, I'm, I'm curious kind of what h how, if these questions are coming up first and then maybe how some of your client, uh, providers and, and, and, and facility clients are, are responding to those, uh, questions, requests and concerns.

Speaker 4:

Yeah, thanks Tom. We're, we're getting a lot of these questions. Um, in the context, I think of, of two major scenarios, one, employed providers, um, in the con, uh, for the employed providers in the second is in the context of professional service agreements, um, where the financial arrangement is driven by productivity. Um, and there has been, or, or will be a decrease during the, the pandemic, um, on the employed side. Um, and, and that lost, uh, compensation, um, for the employed providers. Um, you know, I think we recognize that many of them are, are that they are very critical to developing fu future patient care, um, in, in, in those contexts. Um, they are all facts and circumstances driven. We, um, have seen some healthcare organizations, uh, look to, uh, implement, um, some type of protection under the, uh, individual physician, uh, productivity type models, um, whether in the form of some type of a short term compensation floor, um, along with maybe a future look back, um, that, that contemplates, uh, the future ramp up of any pent up demand once procedures begin. Um, that's one thing to think about as you look at, uh, any type of, of compensation model in this context, uh, give some thought to whether, uh, some type of, of future reconciliation concept could be brought in, um, in the, in the event that that physician becomes productive again. Um, so, so we are seeing that, we're seeing, uh, quarterly restarts under productivity models, you know, where, um, you know, the, the physicians sometimes are, are held responsible under the, the annual model, um, if they're under productive in, in a certain quarter. Um, and, and so we're seeing some, uh, some development in this area. I think they are, uh, circumstances driven. Uh, some organizations are letting the compensation models ride as they, as they, they ride. They have many have a, a base compensation already, and they have a productivity incentive when those, uh, levels are met. But, uh, they, they rely on the existing comp guarantee. Um, others recognize that many of these models trail, um, and because they, the collections and, and productivity, um, uh, trail out maybe a month or several months after, depending on how the organization calculates, uh, they may not even be getting hit by this decreased productivity. So some of them are taking a cautious approach and waiting to see how the situation, uh, develops. Uh, also other organizations are repurposing these providers, um, and having them provide, provide services differently during the pandemic, uh, in order to take some pressure off the compensation models, uh, in the psa, uh, situation. Um, we're seeing more mostly activity here in, uh, hospital-based coverage arrangements, uh, where the formula, uh, uh, includes some type of a productivity calculation. Um, and I would say, um, in, in those models, I would recommend, again, giving some thought, um, to whether the model really is, uh, uh, generating lost income or, or triggering, uh, reduced compensation already. Because again, it may be trailing, um, because the, and, and if that is the case, there may not be a, an immediate, immediate need for action. Uh, give some thought, like I mentioned before, about potential future reconciliations, uh, that may occur after the national emergency is over and after that pent up demand, uh, give some thought or also to around potential aid that may be received, either by the contracting medical group or the healthcare organization, uh, through the ongoing, uh, government funding programs and how that may fit into the model, um, and to see where risks should fall, uh, between the two contracting organizations. Um, I've seen some scenarios, um, lastly, where in, in the context of all this, I mentioned some organizations are letting the comp models ride, um, other organizations are, are re recognizing that they just can't afford, um, these compensation models in this context and are actually looking to have some of these positions, uh, take vacations or reduce their FTE status, um, in, in order to ride out this period of time. So definitely a lot of activity here.

Speaker 3:

No, I would presume that's the case and certainly will continue to be the case as as time goes on, and particularly like your thoughts around the reconciliation provision, right? If this doesn't go on that long and, and people do too much on the front end and, and things catch up on, on the back end, um, certainly would help avoid putting folks in a tough spot there on the back end. And, and, and also like the, the ad around accounting for all the, the public funding and, and, and programs that may be available to assist. So, great, great thoughts there. Um, Andrea, I, I presume this has gotta be a tough one, uh, to approach from evaluation side. Um, so kind of interested in your thoughts, uh, as well as to how folks are looking at these, uh, on the compensation, on the compensation side of things.

Speaker 2:

Well, I'm gonna echo the thoughts of Joe or the remarks of Joe and you as well, that the, the situation is somewhat fluid with to physicians, uh, and other providers who, who might be seeing a downturn, um, or whose services, uh, at the very moment might not be as in demand as they were, uh, previously. I'll, I'll echo Joe's comments about the fact that there are, uh, trailing collections. So those physicians may not start to feel the impact until, uh, closer to the end of this crisis. I think there's also the fact that, um, demand might be pent up. Um, and that's something to take into consideration. So while there is a moratorium on elective procedures right now, and folks may not be doing them, uh, you know, three or four or five months in the future, there might be just a deluge of those procedures with the pent up demand and rescheduled, uh, services. Um, and so some of the, uh, the, the payment questions might kind of come out in the wash. That being said, um, you know, providers have to live today, um, and their services may still be needed even though they're not needed in the same volume that they were before. Uh, Joe had mentioned anesthesia, um, providers being redeployed. Well, anesthesia is probably one of those specialties, uh, where, uh, there, there is, uh, an impact due to the decline in the elective procedures. But on the flip side, um, hospital still definitely needs to have anesthesiologists available. Um, and their skillset might be very useful. Um, and you wanna make sure it's available. I mean, you, if, uh, there's a meme kind of going around on social media saying, you know, folks would much rather be intubated, uh, by an anesthesiologist and a gynecologist. So to the extent that there is a shortage of providers, um, you want to make sure that those anesthesiologists are available. Um, and it may be that you need to make sure that they have, uh, the appropriate resources to ensure that enough staff are available, uh, and, and during this crisis. And so that I think, needs to be taken into consideration, uh, when you're thinking about the wait, the approach versus, um, do we do something to make sure that, uh, compensation is appropriately addressed Now,

Speaker 3:

No, great thoughts, great thoughts. It's particularly on the fluidity of it, Andrew, it's, it's almost hard to answer that question with the, you know, one or two responses because the, the situation continues to evolve. So certainly appreciate those perspectives. All right, so the, so our last topic, um, for the podcast today is around something I think, Joe, at least you've mentioned here a few times, and I know a lot of people are probably anxious to hear more about and, and knowing we only receive these here Monday night. Uh, and, and so it's probably just predicting what may occur at this, at this standpoint as, as folks digest this, but this, this pertains to the stark waivers and, and how you may envision maybe on your initial reads, Joe, that, that they may use in the, the different arrangements that we've discussed, uh, during the podcast today.

Speaker 4:

Gary, thanks Tom. Um, yeah, and, and looking at the stark waivers, you know, one question, you know, I I would say, you know, the stark waivers have come out and healthcare organizations continue to react to their circumstances. And so in many ways, the questions themselves haven't changed. Um, but, but we are getting asked more questions about how, uh, healthcare organizations strategies fit in with the context of, of these new waivers. Um, I, I do think that healthcare organizations are gonna have to think about their compliance strategy throughout this and how it interacts with the waivers. Um, the, the, the bottom line is that, um, the la the, the, the waivers do have their limitations and they do have a limitation of scope. And I got, I'll touch on a few of these in a second. And it is important as you're, as you're, you're making decisions throughout this process that you, you do think ahead to a year or two years from now and, and the importance of having justification for the actions you're taking, you don't want to create compliance concerns. I know it's a very fluid environment, but it's really important to have your compliance strategy thought out. Um, and that, I think that's even more important because, uh, CMS said in these waivers that they're intended to be additional safeguards and that you may be able to fit your current arrangements within an existing stark exception. And if you can do that, I would do it that way. Uh, the waivers are new, they terminate at the end of the pandemic, so we generally just recommend that you look to them. If, if you think it's absolutely necessary for your, your bonafide covid 19 response. Uh, but, but do try to, uh, align your arrangements, uh, with an existing stark exception, as I I hit on earlier. Um, many of these arrangements, uh, for many of these arrangements, the waivers are probably would never be necessary. And for example, if you used a short two page agreement, uh, and, and sign that, uh, or sign a short amendment to your current agreement, um, in writing and, and you pay an appropriate rate of compensation, then you're probably most of the way there towards meeting, um, star compliance anyways. And it's unlikely you would have to, uh, even utilize these waivers. And, and that's what I would encourage you to do here. Uh, we've hit on a lot of contracting issues that, um, are, are, are, are propping up in these different scenarios, and I think at least having something on paper, um, is, is encouraged throughout this, uh, if you want to do something more creative and, uh, and you're not sure if the creative approach you're, you're taking, it falls within these waivers. And if you're, you don't think it falls under a stark exception, I would en uh, uh, I would ask you to think about, uh, submitting your own hospital specific 1135 waiver that covers your circumstances. The government, uh, is anticipating those right now that I would at least provide you some cover. Uh, if you look at the waiver document itself, it says that the arrangements that are subject to the waiver must be absent of the government's determination of fraud or abuse, uh, to fall under the stark waivers. And, and I think that's a, the government's way of saying that, you know, they can, could find liability, um, under anti-kickback or if there are, are abusive underlying facts here. And so I think it's, that's what's gonna be really important for you to be able to show your arrangements were pursued for, uh, an appropriate COVID 19, uh, purpose. Uh, the waivers already say that, uh, entities need to make their documentation available, um, if they're going to rely on the waivers. So I would also say, if you're gonna look to the waivers, uh, develop some approach for maintaining separate documentation for these. In arrangement, these types of arrangements, uh, look to probably develop a form that shows why the arrangements purpose, um, and scope. Uh, it relates to the COVID 19, uh, response that you've developed. Um, you wanna really show that nexus, uh, if you can build it into the agreement, uh, that you're developing. I, I think that's even better. Uh, I, I would keep some documentation showing the rationale for the compensation model. Um, some confirmation that the arrangement started and ended during the time period, uh, that the, um, national emergency was in place, that the waivers are, uh, set up to terminate upon the expiration or termination of the declared public health emergency. So, uh, they're gonna end. And so I think that's why, one reason why I think trying to get in line with a s stark exceptions the best approach, uh, because then if you're in that arrangement after the national emergency ends, you can still rely on it. Um, you're not gonna have, uh, the, the same issues. And it also is going to ensure, ensure that you don't have, uh, a, a compliance gap throughout this. Um, so I don't think the, the stark waivers are a free pass. Um, if you do look at'em, it, it's good that the government gave some examples of arrangements they thought would fall under the waiver. Again, as I mentioned earlier, if you're gonna enter into a brand new clean arrangement that's clearly related to the COVID 19 purpose, I think it's gonna be easier to rely on the waivers. Uh, if you have existing arrangements and you're looking to rely on the waivers, uh, in conjunction with that, uh, new arrangement and you, or, or that existing arrangement, and you know that existing arrangement's gonna continue after the pandemic's over, it's gonna be a little messier. And I do think you should give more thought to how the waivers fit into your overall compliance strategy. So, uh, the WA waivers were very welcome, welcome. It was good. They were retroactive back to March 1st, and we'll carry us through the pandemic. Um, I would look to them, um, if necessary for your overall strategy, um, but, but also try to contract in, in line with Stark, um, as it exists today.

Speaker 3:

Those are great insights, Joe. I, I think everyone gets very excited when they hear stark waivers, but I, I think that's very grounding and thoughtful advice in the sense that, you know, you could see them come into play in a, in certain unique circumstances. And I think it was helpful that c m s or that they did outline, you know, a number of scenarios where, uh, they could be used to kind of focus people, but definitely good advice that, um, that, uh, they will, you know, that they should, that the, the normal course stark exceptions should be considered before using those. Um, Andrea, I can't imagine you're, again, you're not receiving some, when, when people see that they can pay above or less than fair market value, those types of things aren't hitting your, uh, your email yet. So, curious to hear if you are getting any requests or have thought through how you might, uh, wanna approach some of the, those, uh, those types of arrangements that, that CMS outlined in it, in its guidance.

Speaker 2:

So we're, we're kind of reacting as well as everyone else. And I, you know, the thing that has struck me, um, is, uh, the, the number of folks who are just looking for guidance in part because like I said earlier, they just don't know where to start. And then thinking back to my days, um, as counsel in another life and, um, dealing with the aftermath of hurricanes, um, and other emergencies where the whole world, it seems had gone upside down, and there were all kinds of requests for arrangements that, uh, just were outside the norm and something I wasn't familiar with. And thinking about the fact that, you know, one or two laws might not apply, uh, there's this whole universe of other risk, um, that was going through my mind at the time from, you know, state laws to local ordinances to what does this look like from a business perspective and what does this mean financially? And what is this going to mean in three months and six months, um, in 12 months when somebody's looking back at what we did. Um, and there, I think having a partner like us, um, and I was a client at the time, uh, it was, it, it's great. You know, it's somebody to kind of bounce ideas off of and, and to get, um, an opinion on and to, to put things in perspective so that you can have a reasoned, logical approach to answering the type of question that you've never seen before. Um, or that, uh, is different in some way from all the other things that you've seen and in a way that is making you kind of scratch your head. I think it would, uh, help me sleep better at night. And, and I imagine that's maybe how some of our clients are feeling as well. Um, you know, we've heard many people point out Stark law waivers, um, don't apply with respect to the<inaudible> statute. They don't apply with respect to state laws. Um, you have nonprofits that are still kind of concerned about their tenuous position. Um, and so I think there's a lot to think about.

Speaker 3:

No, absolutely. Definitely more than meet ci, um, with those notwithstanding, again, all the, the excitement that one might think, uh, or, or feel when, when initially think about what opportunities they could provide. Well, I I think that concludes our, at least the substanent portion of our podcast today. Joe, Andrea, it was a pleasure to kind of be between the two of you here asking some questions. And, and thank you for all the, the great perspective and, and discussion today. And with that, I will, I will turn it back over to Andrea to, to close this out.

Speaker 2:

Um, Tom, I thank you and I thank Joe for participating and, um, as I said, this was, uh, intended to be part one. Um, and we will, uh, hopefully be soon having a second discussion, part two, uh, that will focus on supplies and space and equipment and some of the challenges around that. Um, and thank you all for joining us today.