Sarah Swank, Nixon Peabody LLP, speaks with Janis M. Orlowski, MD, Chief Health Care Officer, AAMC, and Lance Gable, Associate Professor of Law, Wayne State Univ., about what providers need to know right now about crisis standards of care to address the COVID-19 pandemic. The podcast discusses how to sustain personnel during the public health emergency, ensuring that fairness underlies the standards, liability issues, and longer term effects likely to inform future planning.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
Sarah Swank, Nixon Peabody LLP, speaks with Janis M. Orlowski, MD, Chief Health Care Officer, AAMC, and Lance Gable, Associate Professor of Law, Wayne State Univ., about what providers need to know right now about crisis standards of care to address the COVID-19 pandemic. The podcast discusses how to sustain personnel during the public health emergency, ensuring that fairness underlies the standards, liability issues, and longer term effects likely to inform future planning.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
Welcome everybody to today's, uh, A H L A podcast. Today we're gonna talk about the crisis standard of care, and I have two amazing guests with me today. Um, Janice, do you want to introduce yourself?
Speaker 2:Sure. Good morning, uh, or good afternoon whenever you're listening to this. I'm, uh, Dr. Janice Orlowski. I'm the Chief Healthcare Officer at the Association of American Medical Colleges, and I'm also, uh, a practicing nephrologist.
Speaker 1:Excellent. Janice and Lance, do you wanna introduce yourself to the audience?
Speaker 3:Yes. Thank you, Sarah. I'm Lance Gabel. I'm an associate professor of law at Wayne State University in Detroit. Uh, my background is as a public health lawyer, and so I have my law degree, but I also have a Master's in public health, and I've done a lot of work on emergency response laws and public health laws and how they affect what can be done during an emergency response.
Speaker 1:Great. And everyone, I'm Sarah Swank from the law firm of Mixon Peabody in the Washington DC office. And we're gonna jump in and start. So I'm gonna start with you Lance. H how do you define a crisis standard of Karen and how is it different than a normal standard of care?
Speaker 3:Well, in ordinary circumstances, in a hospital setting or in any other setting where healthcare is being provided, there is going to be a certain expectation of a professional standard of care that healthcare professionals are expected to provide to any patient that they might encounter and, and treat. And during a crisis, an emergency, uh, particularly something like the Covid 19 pandemic, where you have such a huge influx of patients, the potential for shortages and other kinds of, uh, differences in the setting and what can actually be, uh, reasonably provided to people, that standard of care is going to shift and change and adapt to the circumstances on the ground. And so when we talk about crisis standards of care, we're talking about how do the, the standards of care that are expected to be provided in a medical context or in a healthcare context, how does that change, uh, during a crisis like this one? What's interesting about this crisis and what makes it most challenging is that it's, it's been such a sustained crisis. We've seen multiple waves of patients, and we've seen our, our systems really stretch to the limit over the past nine or 10 months. Um, and, and, and ongoing some of the worst of it right now. And so, um, thinking about how we can continue to provide the best care possible, but also thinking about what is reasonable, what's expected, and what's possible under the circumstances.
Speaker 1:So it's interesting. So when we think about the standard of care, we a lot of times look to our, our communities and the phy and the physicians in those communities. And when telehealth was new, cuz I've been doing, doing telehealth a while now, it's really new and really big. Uh, although I wouldn't say it's a, as new, uh, there was a lot of discussion around the standard of care and whether that standard of care would change because now we would have like a national standard of care. So is there one standard even, is there one standard of care and is there only one standard of crisis standard of care? Like, is there, is it something that changes over time? Is it something that will change or be a national standard? Lance, what do you think?
Speaker 3:Well, I I, I do think there, there is more than one standard of care. And what, what I mean by that is that standards do change over time. Sometimes standards are gonna change over time just because, um, technology advances or under, you know, biological understandings advanced, we learn new things and have new, uh, approaches that can be used. And so that's gonna change. Or, or we're using something like telehealth, which is a different, uh, method of delivering care. But I i, if we're talking about it in a crisis situation, uh, there's the potential for fluctuations in access to scarce resources, which might change what's possible. And while we, we, we don't want to diminish any kind of, uh, expectation of what can be provided, we also have to adapt to the reality of the situation. Now, one thing that I think is especially important when we're thinking about the p the potential for the, the care to change and to be different in different places based on different access to resources, is thinking about how we can head that off as best as we can. In other words, to, to make sure that we can anticipate where shortages might occur. We can supplement our, our capacity in all of these areas and and really minimize the, the chances for this, this alteration in what can be provided from happening in the first place.
Speaker 1:So Janice, this is a great segue into being a physician, um, and really having to think about the standard of care and the crisis standard of care in a real pragmatic way, cuz it's, it's the life you're living and the, and your work and your profession. Um, what do you think about the crisis standard of care? How do you define it and live within that? And, and what, and what has that meant for you now?
Speaker 2:Well, Sarah, um, I, I, uh, would start off by saying that, um, the crisis standard of care are guidelines that we use to help organizations. So, um, hospitals, healthcare institutions and healthcare professionals deliver the best possible care in circumstances in which resources are severely limited and our healthcare standards are, uh, compromised. So, you know, that's sort of a technical thing that I just went through. But, you know, what do I think about when I say that? I always think about standards of care in sort of three waves. There's the usual standard of care is sort of the day-to-day what we're doing. Then there's, uh, surge capacity. So the, so what surge capacity? Surge capacity, um, happens, um, uh, you know, I'll give you, uh, some examples. Uh, uh, during the time that I, uh, led a healthcare institution, there was a fire at a local nursing home, and suddenly there's 120 nursing home patients that need to be evaluated. So there's a, you know, there's a big surge, um, you know, things happen. Surges can be a couple of hours. They can be, uh, uh, a couple of days, but there's a surge because there's flu or there's measles or there's something within the community. And then, um, there's the crisis standard of care. And the crisis standard of care, um, really is that you cannot surge. Um, you basically have, have limited resources and you've, you've reached your limit. And so the crisis standards of care, um, should help direct care to, uh, defined population so that you are giving, um, the best care possible to the most number of people, but not everyone. So there's a degradation of the, the usual standard of care. The second point that I would make is, although there are national standards that have to be thought of when we discuss standards of care, those national standards are implemented locally. And I agree with Lance, you know, it, there should be contingency planning ahead of time. We, you should be thinking about it. But in the end, there's local, um, response. So if you say, you know, we need to surge and we need to have more surgeons, you know, local communities, if you are, uh, in the middle of Chicago, um, versus if you're in rural Iowa, your ability to, to respond to a certain crisis, um, um, varies. What shouldn't vary is the underlying, um, uh, you know, sort of the, the, uh, basic standards for, uh, crisis standards of care that should not shift. Um, but your resources and the local problem does shift.
Speaker 1:So, Jan, it's one of the things I, I heard Lance say, and I, and I've been thinking about, uh, you know what, if you have a fire or Katrina, you know, it's, it's an event and then there's a, uh, there's a aftermath, right? And we're still living in it. And who knows, even after the pandemic, we still will be in an after aftermath, right? Um, right. And one of the things when you do pre prep preparation, which, uh, and in response is you look at moving resources around a community like, uh, in an urban area. Now we had a sneak preview of what this might look like in, in the spring when we saw what was happening in New York, in Boston and some other areas, but there were still people getting on planes and going to New York. There were people being able to still, we, we had to stop looking at it as a community and, and try to look a little bit more nationally to get resources there. Now if we're serving everywhere, what does that, what does that pragmatically mean for the standard of care where, where you're, you're, where does it mean that there'll be, if there's limited resources, does the standard then change? And what does that mean? I think you, you alluded to like that that means like some people might not be able to get care in that moment.
Speaker 2:Right? Right. You know, Sarah, I think this is one of the most fundamental important things that we need to think about right now, and that we need to think about in the future when we have, um, had emergencies. You know, Katrina, a hurricane happens, a flood happens, something happens. What ha, what happens, um, is, is that you might do surge, you might have to do crisis standards of care. But, uh, you know, as I've said, uh, in other conversations about this, you can almost always expect the calvary to arrive in 72 hours. You know, um, whether, uh, you know, I remember, uh, as we take a look at, at, uh, this devastation at Haiti or, uh, in Puerto Rico, there was always a response that occurred within two days, three days. Um, uh, even as we take a look at, at terrible flu seasons, um, in United States, flu typically travels from the west coast to the east coast. So, you know, it's not unusual. Um, as a, uh, a hospital administrator where I'd see, oh boy, there's a really bad flu in, um, California. I see it coming to Colorado. You know, you get the staff together, you cancel, uh, vacations, you, you know, increase your, your bed capacity, and you sort of see flu coming, but it comes across the United States. And, um, there are, uh, additional healthcare workers that travel, um, you know, whether it's, uh, locum tenants, physicians or traveling nurses or, or radiation therapy that, you know, there's a, a, a give in the system. Um, in the past, this is the first time that, uh, I can think of where we have had a crisis across the United States. Um, you know, and Azure said, even in, in early spring, we had, you know, I was talking to Mark La who's the C e O at, uh, U C S F. He was putting, he, he was putting I c U teams together, and they were flying to New York for two weeks of, of, uh, service, um, in the ICUs in New York, we're not doing that right now. There are no additional bodies to fly around. So this is the first time that I can think of where it's sustained. It's across the United States. There are not additional personnel, um, that, that can be, uh, delivered to certain areas. It's, it's ha it's longer than 72 hours and it's going to be weeks. And, you know, quite frankly, we've never seen this before and people are grappling with, um, how do we, how do we deal with this? I can tell you the most common conversation that I have with c e o of, uh, teaching hospitals and health systems across the United States is how do I sustain my personnel during the next couple of weeks?
Speaker 1:So Lance, um, I, I, you know, I, I was a, a in-house, uh, council, and I've lived through some of those bad flu seasons where we were just hoping for April<laugh>, like on the East Coast. Like, let's just make it, you know, let's just, we're in Washington, DC let's just make it to April, right? Mm-hmm.<affirmative>. Um, and, and I'll also say this, I'm, I, I'm hearkening back to my in-house days because I've never done so many staffing agreements lately for, for travelers. You know, I, I, as somebody who was in-house, and you try to think through quality of care and your travelers and your staff, and how do you supplement them. Um, I'm now back doing some of those, uh, um, our emergency contracts. So, so Lance, what do you think about what Janice said about this sustainability and, and what this, what this might, what, what this, why is this, why is Covid different?
Speaker 3:Well, I, I, I agree that this is not, this is not going to be sustainable unless we come up with some, uh, extra resources, some different models. I mean, what this is really revealed is how, uh, not resilient our overall system is for something like this. That, that is, is, you know, a major pandemic of infectious disease that lasts for an extended period of time. You know, part of what it demonstrates is the failure of our overall public health response. You know, we, we be, because we have not controlled the spread of this disease, um, the, the, the case of skyrocketing again, and, and they're skyrocketing everywhere. And so that, that takes away the option of having, um, you know, shifts in personnel from region to region because they're experiencing the, the surge at a different time. Um, and so obviously the be the best solution to that, although it's one that's too late at the moment right now, is al, although maybe it's not too late, because I mean, the, the, if we, if we still aggressively pursued public health intervention strategies where we try to, to really, um, you know, separate people to support them so they can stay at home and not lose their jobs, to, to do all of the kinds of things that, that, that some of the things that we did actually early in, in April and May, um, to support people and allow them to stay home and, you know, support businesses and try to take away some of the financial pressure on people to, to have to interact with others. That kind of intervention, uh, reduces that, that case curve, you know, uh, flattens that curve, like, like the, like the saying goes. And, and that, that makes it more feasible to, to have the personnel and to have the availability of resources, um, in, in the places that need them Right now, I think the, you know, the, the, I mean, there, there are some, there are some strategies that can be used as well in terms of, you know, making it easier for people to travel and, you know, people who, who are only licensed in certain states to, to go and easily practice in other states. And, you know, I think some of those models are important to think about too. I mean, that that's something that, you know, we, there, there, there are pretty good templates for that, and that can be done pretty easily, uh, through executive orders, by governors and things like that, but, or, or through emac or, or other mechanisms. But that being said, I, I, I think that the, the real problem is just one of actual capacity. And it, you mentioned sort of the, the, the burnout of the, of the workforce. I think that's really, you know, a major concern right now because not only are people just working ridiculously long hours that, and are, are, you know, dealing with a really stressful, dangerous disease constantly week after week after week. Um, but you know, I I, I, I really have concern about the long-term impact of that. You know, once we get through this time where, where the, the, the, the risk is greatest are, are we going to see people, you know, leaving healthcare professions, you know, not wanting to be in this situation, feeling like they've been kind of left on their own to, to deal with this, this immense responsibility, um, and, and not willing to, to undertake that again in the future.
Speaker 1:It was interesting. I, I, I watched, um, a clip on, I can't remember what news station it was, but it was a physician who came forward. He was Jewish, and he had to care for somebody who had swastika tattoos. And he said, normally, I wouldn't even pause. I would just go in and care for that person. I wouldn't even, there wouldn't even be a split second. It's not even in my d n a. And I caught myself pausing even just for one second, that hesitation that I'm not supposed to have. And he says, I think it's because I'm burnout. I'm tired. And, um, and I have to acknowledge that. And he got on national news to say that because he wanted people to understand that it's, it was a real burnout. Um, he, he was, he was tired. Um, uh, so, uh, so Janice, as somebody who is a physician, we're, we're seeing, um, people coming outta retirement or staying, they're gonna say they're not gonna retire yet,<laugh>. Um, but I wonder if that will change. I remember thinking about right before, what they call it the great recession or EV or whatever, where, but there was gonna be this whole discussion about, uh, uh, physicians retiring and then stock market crashed and people worked a little bit longer, right? Maybe some of the people are still working, right? How do we look at that? How do we look at the workforce changing? I mean, you're in a position to help train the next, um, it's kind of an interesting perspective cuz you have a, maybe some people retiring. We're back talking about shortages again in, in the, in the workforce, right? Right. Reduction in reimbursement. Right now that's happening. If we look at, we've got some opportunities with changes in the law around like stark and anti kickback and innovation, but we've also had this new crop of physicians, um, do we train for crisis standard of care? I mean, I wonder how this is gonna impact them in their careers and how do we look at this, this kind of new workforce, right?
Speaker 2:Right. So, um, I feel like I, uh, could make so many comments. So I'm going to, uh, make three, uh, uh, different areas I'm gonna comment on. First of all, I, I wanna go back to the swastika, uh, issue. And I, um, think that this brings to mind one of the underlying tenants of crisis standards of care. And that is, um, fairness. Um, that, uh, I, like every physician, um, uh, you know, goes in, you take care of people. You're used to, uh, taking care of people who, you know, may outside of the hospital have done something that, uh, is seen by society as bad or whatever. But, you know, in the hospital, we are just taking care of people. And so I think that, um, as, uh, everyone takes a look at their crisis standards of care, we have to make sure that fairness underlines this and that we do everything possible to diminish our, uh, any opportunity for our unconscious bias, uh, to play into the decision. So, fairness, fairness, fairness, we need to take a look at this. And as you make decisions in crisis standard of care, they need, you need to make decisions that say, because of, you know, for example, our limited, um, uh, ventilators or our limited I c u beds, we are not going to put in people who are in, um, the, who have the highest, uh, risk of, uh, you know, a poor outcome. What we're going to do is we're going to, uh, use the I C U beds for those that we believe that we can deliver the greatest care. And so you make, um, standards that are, uh, based on principles of delivering, um, care and, uh, improvement in health to the highest number of people. And then you stick to those standards. Um, like, you know, as a physician, I can't say, well, you know, this guy's a lawyer, you know, uh, we're not gonna, you know, give him care or something like that. That's my lawyer joke for the podcast.<laugh><laugh>, Um,<inaudible>, right? Yeah, yeah. You know, someone who doesn't do any good for society, you know, but, um, uh, so you, so you shouldn't, y you know, again, fairness has to be, um, uh, underlying your standards of care. The second thing, and we have some information about this, um, Eric Toner and his group at Johns Hopkins that have taken a look at, uh, preparedness and looking at crisis standards of care, they did a, a debriefing, which we call Root cause analysis, um, um, taking a look at a problem and, you know, seeing what went right, went what didn't. And they took a look at, um, the New York hospitals in April, and I would say, um, his report is very, uh, interesting. It was released, uh, uh, about two weeks ago. And it basically, uh, says a couple of things. First of all, heroic efforts by healthcare workers, um, above and beyond just, uh, extraordinary, um, crisis standards of care, uh, were, uh, implemented. But what happened was, um, many times the physicians or the nurses or the individuals in the I C U or in the, um, you know, pick a unit, the emergency room, or if they were in, uh, one of the areas, um, they felt like they were, uh, last man on the island. And so one of the important things to do is to make sure that all of your staff is aware of the crisis standards of care, and not that they have to make it up that day at that time. Um, they should understand that there's a program, that there are people who are behind them, and that, um, you are instituting crisis standards of care. So education and just in time education. Um, when physicians, and I'm gonna use the word physician, but I'll, you know, generally healthcare workers, when physicians find themselves in needing to make decisions, they should be able to fall back on standards that they, um, have, they should be able to, you know, look at what ethics committee's decisions have been, um, talking about and making. And, you know, and again, um, in individuals who are providing care, shouldn't feel like, um, they're making it up that day. Um, and so that's, that's probably key. I think, um, uh, the other thing is, is that, um, there is an ability to, uh, be proportionate. So, um, let, uh, let me give you an example. Let's say that typically, um, in, uh, N I C U, the nursing ratio is one nurse for two patients. So, in a search capacity, you might say, you know, we're gonna do, um, one nurse, uh, for every three in a crisis standard of care. You know, if you say one nurse is gonna take care of eight people, then quite frankly, no one's getting care. You know, I mean, you know, how could one nurse take care of eight I c u patients? Um, and so what what you may do is say, look, we're gonna bring this down. We're gonna have one nurse to four patients or five patients, again, looking at your crisis standard of care. But what we're going to do is we're gonna use nurses aids to provide comfort or, uh, support individuals who don't have nursing. So again, um, there, there should be decisions that are made about populations of people. It should be pa, um, it should be, um, fair. We should eliminate unconscious bias. Um, we should take a look at the burden. And so, um, you know, a again, just an example of, of how we should be looking at this and how we should be having these discussions ahead of time. And then your last question, Sarah, um, is about burnout. You know, um, e e everyone feels burned out. I mean, you know, um, you know, my, uh, uh, niece who has a kindergarten or her kindergartener feels, uh, burnt out. Um, it, you know, there's just been, uh, a tremendous, uh, stress both internally and externally on everyone, but in particular, uh, with healthcare workers. And, um, we are seeing, um, th this in, uh, as you said, decisions that they make, the tiredness that they have their ability to, um, uh, continue. And so what we are, uh, you know, again, talking to leaders about is, um, it's better to have a fresh physician who works, um, 10 hours than a tired physician who works 18. I mean, we really have to take a look at how do we deal with resting our personnel, even if it means that someone is not going to get care, um, more people are going to get better care if our, um, personnel are rested. So how do we, how do we have our staff work, but how do we rest our staff? Um, longer term results? I think that there's gonna be results, um, from Covid in the healthcare field for years to come. I think there are going to be effects on personnel. Um, there's gonna be financial effects on institutions, and we are going to look at what we did well and what we did poorly and quite frankly, compare ourselves with some embarrassment to other countries who were, um, better, smarter and quicker, um, at containing this, uh, pandemic and say, what license, you know, what, what lessons rather do we learn in the United States where we are blessed with resources, um, and blessed and at times, um, cursed with, um, individual rights. Um, and I think that we're gonna have to take a look at that and say, how do we, um, make decisions for the future about, um, how we respond to this.
Speaker 1:Janice, that was wonderful. Thank you so much. Um, so Lance, we're gonna now prove to Janice why you need lawyers. I'm just kidding.<laugh>, you definitely need anyone who knows me. My heart is with all the healthcare workers, all the people that work in hospitals, all the social workers, the first responders, the public health people that are on the ground trying to, like, with limited resources, get some of this done. Um, but we, uh, we'll say this, we definitely saw a, a lot of rapid legal changes. We talk about that a lot. Um, and in some ways what was been interesting from a legal perspective is we've seen some of those change changes happen at the federal level, but a lot of'em are in governor's orders. And we've seen, you know, the CARES Act and funding, um, that came out because I think it, this is completely my opinion, but it looked like our health system was about to collapse, um, when we shut down, uh, cases. Uh, not even just from a financial standpoint. I mean, I would also argue if, uh, there was a New York, I think it was a New York Times article that came out like in April that said, you know, oh, people didn't get care, but they're okay. And I'm not sure I feel that way, but, um, but so, so Lance, with all that, like, where do we, I mean, we talk, there's some talk about, there's some immunity in the CARES Act, clock IT care, the one of the CARES acts, which talks about, um, volunteers. It never went further. There's some states that have some level of immunity in, um, around caring for actual covid patients, not the patients that didn't get care that aren't covid related necessarily. Um, how does that all work in, like, given what Janice said in framing it in a public health law perspective, what would you like to say about, um, the legal changes and sort of what happened and where we're, you know, during that time?
Speaker 3:Well, it, it, it's a, it's a great question, and I think that you can look at it maybe on a couple of different levels. So, uh, uh, on one level, if you're looking at just sort of the legal changes that apply directly to healthcare facilities and provision of care kind of in, in those settings, obviously, you know, there's been a lot of focus, um, b both at, you know, in some of the, the federal discussions, but also in a lot of the, the state level discussions about, um, you know, if there, if there are changes to the standard of care, do we need to provide an explicit, uh, immunity, uh, from liability for providers who are, who are operating in these, in these situations? Some states have done that through executive orders. I think it was about 20 or so that did that back in April and May. A lot of those executive orders though, have expired. Um, the, uh, you know, there, there, there's some broad federal immunity, uh, but that only applies to certain, uh, categories of people, uh, like, like you said, Sarah volunteers. And, uh, there, there's also some immunity connected with administering, um, certain, uh, medications that are that kind of fall under the, the Prep Act. And so, uh, the, the vaccines and, and things related to that are going, and, and also through, through, you know, other, other federal law provisions, the vaccine, uh, administration is going to have some liability protection. But it definitely is a patchwork. And I guess the question, and, and this is a question that I think is hard to answer, is, you know, do we need to explicitly, um, add more immunity protection for healthcare workers who are, who are operating under these standards? Or is just the recognition that the standard has changed sufficient to pro to, to provide that protection from ultimately being, being held liable? I know that when, uh, when, you know, people have looked at these issues in, in other contexts and, you know, tried to bring cases against healthcare providers under, uh, crisis circumstances saying that they didn't do what they normally would've done, uh, most of the time, uh, those lawsuits are not successful because the courts end up recognizing that, that, that everyone did the best they could and they, they were operating with, uh, with reasonable care under those circumstances. And so, I, I think regardless of whether they're explicit legal protections, I think it's likely that that, that there we don't see a whole lot of liability, at least, at least with respect to providers. Now, that being said, if, if it's clearly articulated that those providers are protected, that's gonna give a lot of people a, a much greater level of comfort. And so I, I think there's a, there's a desire for that, um, you know, from the, from the provider side to see those protections explicitly laid out in the law. But I think regardless of whether they are or whether they're not, we're likely to see the, the same eventual outcome. It just, it just may take longer to get there. And so that, that, that's my take on it. I know not every lawyer agrees with me on that, but, but I, I think so, so that's one level at the second level in thinking about, well, how can the law law be used to try to, uh, make our systems more robust to try to protect them from collapsing? Um, yeah, that goes back to thinking about, uh, some of the federal legislation. Uh, the CARES Act, I think, was successful in, um, not only, um, providing extra support for the healthcare system specifically, but also just for people across our society, allowing people to be able to make ends meet for a period of time when they, when their lives were disrupted, either directly by the illness or indirectly because of the, the efforts to contain the illness. And I think right now we're in a place where we're, we're going to need those kinds of interventions. Again, we really need Congress to, um, extend some of those, those programs and, and, you know, everything from, you know, eviction moratoriums to, um, you know, cash support for people and businesses that are, that are hurting to direct support for, for our healthcare system and for providers who are, who are, um, really taking the brunt of, of the response to this disease. And, and I think, you know, if we, if we, if we're able to do that, I think we're gonna come out of this in a much stronger place, not only in terms of the, the ultimate, uh, effects of this pandemic, but also where we are as a society. There are gonna be so many people that, that are going to need support going for, we, we can't just cut it off the d the day that, uh, we, we get herd immunity with our vaccine. We're gonna need the support going forward for quite a long time. You know, this, this is the kind of of event that changes, changes society. We don't know exactly what the, what things are gonna look like at the end of this. And there are gonna be a lot of things that we've done to respond that we're gonna say, you know, this was, you know, to to, to Janice's point a few minutes ago, you know, this, this worked well, this didn't work well, you know, this approach, you know, I mean to, you mentioned telemedicine earlier on in the conversation. You know, we, we may see a, a lot of the practices that were adopted as a, as a necessity during the pandemic become things that we think worked well and want to expand and, and keep after the pandemic. And so I think we're, we're on a bit of an unpredictable path, but we need to be thinking, uh, carefully about what, uh, what worked well and what we need to sustain going forward.
Speaker 1:Yeah. So it seems like, so I, you know, I had somebody ask me this when the pandemic first started having been in house during H one N one, and it was like, do pandemics end? And they do, there's a date in which someone declares it over, right? Right. But is it Lance is, and Janice, is it really over? I don't know. I mean, we could look at like, um, food insecurity is probably gonna be an issue you talked about. Um, right. You know, homelessness, we learned a lot though. I mean, I, I, I'll say this. Somebody was talking about, um, you know, we, we need to, uh, about public health and, and, and, and moving people off the streets and into motels and hotels across the country right now. And I just, my first thought was, well, where's the social worker? Where's the, where's the, I mean, you finally have, you know, having watched, um, you know, a I think we did a, a podcast about, about race, but it's the same, um, issue, which is, which is, you see this population, we have an opportunity to do something where we have an opportunity to have data and learn about a population that maybe was going in and out of the ER as what offs, and we can really learn about them and like, what are we gonna do with this, this information? And, and even after the pandemic is declared over, I mean, don't we think there's more to come? I know, Janice, it seems like there's gonna be a lot more
Speaker 2:To come, you a lot more to come. And I think we got a preview of it. It, you know, again, a as we take a look back in March and April, I don't know that we needed to shut down elective surgery across the country. But you know what? It, it was the right decision. They, you know, we didn't know what was happening. The disease was spreading, A decision was made to shut down elective surgery. And, um, you know, what we, what we learned, what we knew is there's not like two buckets. There's not elective surgery. In emergency surgery. There's a continuum. And so once, um, places started to do elective surgery, uh, again, what they found was that people who were put on the back burner, so to speak, because of the pandemic, because of, uh, the crisis that we were under, that they had suffered consequences of delaying their, uh, intervention, whether it was surgery or, um, uh, any procedure. And there was consequences, uh, to that. And so we have taken a look now and said, you know, can we really, um, stop, um, surgery and own, you know, stop elective surgery? And the answer is, is that it's a continuum. And so, again, based on the burden of, uh, C O V I D in an institution, they may be cranking down, doing no elective surgeries, and then not doing sort of the next level and then next doing the, the next level. And so you're, you're seeing a more, uh, elasticity, but on a day by day, week by week decision as far as what care to provide, there is consequences to that delay. The other thing that I would say, Sarah, to your question about delay is your example of social workers. You know, I think there's so many things that are, um, going to occur. And in our discussions with c m s, we have actually asked, uh, cima, Verma and, uh, her group to, um, say that certain flexibility in federal regulation, not stop with the pandemic, but stop at some period of time. Um, and we have suggested a year post the pandemic, you know, should all telehealth stop on the day the pandemic, uh, is officially declared? The answer is no, because the pandemic is declared in sort of 90 day, um, aliquot. And so we are going to need telehealth. We are going to need surge capacity. Um, and so I, uh, you know, um, is a year the right time, uh, a year is a made up time, becau, but what we're trying to say is the effects go on for a long time after the end of the pandemic, and we are going to need this flexibility in, um, our standards and in our regulations for a period of time.
Speaker 3:I would take that statement maybe even a step further and say they're gonna be certain practices that, that we don't wanna end even in a year ever, that we just say, you know, this works better. We should keep doing this. We should be, we should, you know, CMS should, should reimburse people for doing it this way. Um, absolutely it works well and it's good for the health of our communities and our of our patients, right? And, and this, this is, this is a new way forward. And so I think that the opportunity that can come out of this pandemic is, is thinking about, um, how we can reform our systems, modify them, make them better, um, and not only avoid these kinds of tough circumstances. Again, we're not always gonna be able to avoid everything, but to, to have a, if, if we have a healthier overall system, um, and whether that's, you know, we're talking about population health of, of people in our communities or just the, the, the health of a system that is flexible and resilient enough to deal with these situations, we're gonna be much better off regardless of what comes down in the future, whether it's another pandemic or, or some other kind of challenge. You know, we're, we're, we're, we need to get ready for climate change too. And there are a lot of other things like that, that are gonna be coming down that we're gonna have to adapt to. And so, um, this, this is, this is our chance in some respects, to make some of those changes and, and keep the good parts that we, that we think work.
Speaker 2:Yeah, I agree, Lance. I think, I think that healthcare, um, is, is going to be changed, um, by many things that we learned that we could do. Um, uh, it's interesting. I was speaking to when chief medical officer, and she said that there's C-suite is keeping a list of things that we're never gonna go back and do. And, and, you know, uh, you know, just things that they had changed that the other ki you know, there's, there's good and bad. And I would say that we look quite frankly, uh, with horror at the, uh, effect of this pandemic on our communities of color. And even though we spoke about inequities in healthcare and what we can do, you, you know, um, before the pandemic, we talked about the, uh, longevity gap between communities that were adjacent, and we were having conversations about what do we do about this and, and how do we deliver healthcare knowing that healthcare is only a fraction of what, uh, affects longevity, but what, what do we do as a community? And I think that, um, the inequities in healthcare and health in society, um, uh, has been horrible to look at, and it requires our immediate and sustained attention, um, uh, after this pandemic.
Speaker 1:I, you know, Janice, I agree with that in, you know, when you talk about taking the bias out in the crisis standard of care, I mean, that's, there's a lesson that could be taken and, and, and, and looked at, um, for us sometimes, you know, had an interesting viewpoint. Like, for example, as an in-house council, and you're watching people struggling with these issues and you realize, oh, I've been working on access for 15 years,<laugh>, and now we're talking about it again. And you probably, I, I can't imagine being a physician and talking about that, but Right. But, but really having these kind of really difficult conversations and making sure that we're educating people to take bias out, making sure that happens at all levels from, from the physician who's caring for the patient all the way up to the board. I mean, it's, it's gonna, it's a, it's a system problem. Um, you know, one of the things I just wanna highlight for everybody, um, and, and get, Lance, your take and Janice's take on this, which is, I think what I'm hearing is this boils down to we're either gonna leave a healthcare worker or a physician on their own to make a decision. It's not easy for them because of where they're slanted to help people, or we can support them and come up with processes before they have to make that decision, right? Right. So that, that, that, that, and it's not all about lawsuits and immunity and all that. I mean, that, that gives people, you know, we are, we have a different culture, like you said, Janice, than others. So we have, we have more litigation than other, uh, different system that's for, you know, obviously we're lawyers, we think that's good. We also think parts of it are broken as well. It's a system. But, but, but ultimately, you know, that's, that's what we're talking about. And so how do we, how do we do that? Like, Janice, I'll start with you and then I'll, I'll go to Lance. How do we, how do we support the, those, those people to make, have that, that the framework to make a decision in that moment?
Speaker 2:You, you know, um, healthcare is a team sport, um, is the bottom line. And, uh, what I mean by that is we are stronger and better, um, profession and, and delivery of healthcare if we really, uh, use, um, a a diversification of thinking and minds around the table. And I, you know, I made a, a joke earlier about the lawyers, but this is a time for healthcare lawyers, for medical leaders, for physicians, for nurses, for social workers, for our phlebotomists, our, you know, pharmacist, um, o on and on. It's a time for us to take a look at, um, uh, a conversation about what we did well during the, uh, pandemic and what we need to change. And we are only going to change, um, as a group. You know, it's not like the doctors are gonna, you know, go off and, and do something. It, it, it's, it's a, it's a team. We deliver healthcare today in a team, and the only way that we are going to change it by making that, that team stronger and having conversations with that team about what they can do better.
Speaker 1:And Lance, what would you like to add to that?
Speaker 3:Well, I, I completely agree with that, and, and I think that, you know, something that's been thrown into really stark relief here that, that we see much more clearly, I think than ever before, is not only the importance of the, the multidisciplinary team and, you know, bringing in different perspectives from different professional experience, but also from different lived experience. And, and, and, and that, that, that kind of goes back to what we were talking about before. And, you know, thinking about, um, how social determinants of health affect health outcomes and, and trying to build that into the, the protocols that we're trying to put into place for allocation during a, during a crisis. Because, um, I think one thing that, uh, you know, going back, you know, I I, I had worked with the state of Michigan to develop their crisis centers of care plan back in 2009 and 2010 during the H one N one, um, scare. And, um, you know, we, we drafted a plan. We're in the process of revising it now to ad address, address covid. And the, uh, the, the, the big realization in going back and revisiting that work from before is that, you know, we, we did not pay nearly enough attention in the older version of the plan to some of the, just, just the, the implications on of, of health disparities, the implications of how these allocations decisions could exacerbate, um, disparities and, and, and didn't directly account for, uh, those underlying social determinants of health. And so, just, just to give an example, um, you know, we, we talked about prioritizing prognosis, but yeah, and, and, and that, that's still an important priority. We wanna save as many people as possible given the resources that are available. But, you know, how do you go about doing that? And, and is the way that you're interpreting prognosis going to be perpetuating, um, community-based disparities in, in different populations that end up prioritizing certain people because they already had better health and deprioritizing people because they might have had an underlying disability or might come from a community that has, that has, um, less robust health outcomes. And so I, I think that's, that's something that has to be explicit, re explicitly recognized in, in these plans and, and corrected for, and, and, and we have to, we have to acknowledge that that's a real, a real issue that needs to be addressed directly in the, in these, in these approaches to, to allocate scarce resources.
Speaker 1:Um, I appreciate both of those comments, um, so much. And I appreciate the, the note of, um, optimism and, and the work that we have to do, um, in our system. Um, I wanna, I wanna thank you both for joining us, uh, today and, and having this conversation. I also wanna thank, um, Frank Trinity, who, uh, was a chief legal officer who was listening to, um, these podcasts and said, we have, you know, with Janice, like, we have to get this information out. It, it's critical to get it out now. Um, and I, um, appreciate the audience for listening in, um, as well. And, um, you know, today is December 15th. We're headed into 2021. It's been quite the year. And, uh, and I hope that, you know, we disseminate this podcast as far as we can because I think it has, uh, longevity even beyond, um, the pandemic. So thank, thank you all for joining.
Speaker 2:Thank you very much.
Speaker 3:Thank you.
Speaker 2:Wear your mask.