By Ellie Bane (Texas), Miglisa Capo (Puerto Rico), Andrea Ferrari (Florida), and Gena Peyton (California)
This article was originally published by American Health Lawyers Association in the September 14 edition of AHLA Weekly. The referenced AHLA webinar series addressing these topics will begin October 22. Registration information will be available soon.
This week, Hurricane Florence passed over the Mid-Atlantic states, the citizens of Texas, Florida, Puerto Rico, and the U.S. Virgin Islands are reflecting on recovery work still in progress on the one-year anniversaries of Hurricanes Harvey, Irma, and Maria, and we marked the 17-year anniversary of the devastating terrorist attacks of September 11, 2001. The impact of natural disasters leaves communities across the country to grapple with wildfires, floods, and mudslides, while health care providers must also determine their ability to provide health care during/after large-scale disasters. Disaster situations pose special challenges for health care providers and, by extension, for their legal advisers. The people and facilities that provide care for the sick and injured serve a vital function in our communities, even, and perhaps especially, when disaster strikes. This means that counsel to health care providers face challenging and sometimes out-of-the-ordinary legal questions when their clients' normal operations, infrastructure, and processes are disrupted by a large scale disaster.)
Four Focus Areas
Based on reports from counsel for health care clients that are located in areas that have recently experienced disasters, the most pressing questions and concerns can generally be categorized into four focus areas. Each of these focus areas will be the subject of a webinar in AHLA's upcoming disasters "Bootcamp," which is scheduled to begin next month and will feature the real-life stories and insights of health care lawyers who have been "in the trenches" during recent disasters. They include:
- Decisions to Shelter-in-Place, Evacuate and Repopulate: There are various legal considerations and implications that accompany decisions to continue business-as-usual during a disaster, or to alternatively reduce operations and/or evacuate. Once evacuated, there are equally weighty considerations in the decision to repopulate a health care facility and/or otherwise restore business operations. The considerations may include regulations and coordination requirements of various regulatory and licensing agencies at the state, federal and local levels, and will often involve a complex cascade of questions about issues such as pharmaceutical handling, radiation safety, biohazard management, workplace and patient safety, and general public health. On a moment's notice, counsel may be called on to negotiate and draft transfer and take-back agreements; to negotiate and draft emergency supply, equipment, or staff leasing agreements; to negotiate, draft or review temporary emergency agreements with vendors, with limited or no due diligence; or to prepare or interpret policies and procedures for assisting staff and discharged patients with medical and non-medical needs.
- Counsel's Role in Protecting and Managing the Health Care Client's Supply Chain and Access to Service Providers During and After a Disaster: Counsel's role may include serving as a key advisor and problem solver in the event of vendor management and contract challenges and/or difficulties with access to contractors and professionals that arise from force majeure clauses, exculpatory liability causes, and other types of common contract provisions that may threaten a provider's ability to maintain or restore safe and essential operations during and after a disaster. In some cases, issues and concerns may be addressed with emergency temporary vendor agreements. In other cases, the situation may require contractual work-arounds and/or regulatory and judicial interventions. In either case, an active role by counsel may be central to avoiding catastrophe and protecting lives and public safety.
- Managing Employee and Workforce Questions During and in the Aftermath of a Disaster: Both during and after a disaster, counsel may be presented with all manner of "out-of-the-ordinary" questions related to worker needs and welfare. Workers may experience difficulty with housing, hygiene, work schedules, and working conditions, and counsel may be asked, or may have a duty to their client, to assess and advise when and under what conditions accommodations for these difficulties are reasonably necessary and/or when they implicate and are outweighed by legal concerns about regulatory compliance, liability risk, or public safety mandates. Damaged infrastructure and power-outages will affect both the performance and timeliness of normal operational functions, leading to questions about payment of wages, including the ever-important questions of how and when workers can be and must be paid when bank accounts are difficult to access. Counsel may be called upon to provide advice regarding worker financial assistance, such as establishing (and terms of distribution of) emergency assistance funds. In certain cases, there may be unusual or untested questions regarding appropriate allowances and accommodations for family and pets of essential members of the workforce. Counsel may be called upon to help determine which essential members of the workforce stay at the facility, who shelters in place, and what family members can be sheltered at the facility. If Dr. Smith's home was destroyed and there are no habitable accommodations for her elderly and infirm mother, infant daughter, and poodle, can and should the hospital at which she works provide shelter and supervision for them on the hospital's premises? If so, for how long and under what conditions should the hospital provide these accommodations?
- Securing Revenue and Reestablishing Solvency After a Disaster: Counsel may have a central role in reestablishing and/or maintaining essential revenue streams during and following a disaster. This role may include managing insurance claims; advising, ensuring and restoring proper billing procedures in accordance with regulatory requirements; and securing contractual payments against legal challenges. Even for experienced health care counsel, the questions that they are likely to face are outside of their usual scope of practice and area of expertise. Aside from disaster situations, it is unlikely that most health care lawyers have given thought to the typical limits and construction of "valuable paper" insurance contracts. Yet, counsel's guidance and advice on this issue may be critical to a health care provider being able to address medical record damage that may otherwise threaten a provider's ability to be paid for their services, to defend themselves in the event of a lawsuit, or even provide quality patient care. As the old adage goes, "if it [the care provided] is not in the written record, it did not happen."
Serving Health Care Clients in Disaster Situations - Tips from Those Who Have Been in the Trenches
Below are practical tips from health care lawyers who have been "in the trenches" before, during, and after large-scale disasters.
- Plan Ahead: Consider in advance the potential impact of the disaster, taking into consideration the potential effect of the disaster on your client's ability to meet their legal and regulatory obligations, as well as their moral and ethical ones. Consider laws, rules, and reasonable practices related to:
- Public safety;
- Employee safety;
- Duty and scope of care to the community; and
- Appropriate resource use in the circumstances
- Plan ahead but still expect the unexpected: Think ahead to what could go wrong, even if the possibility of it going wrong is remote. Plan how you will address what may go wrong. This may include taking inventory of and analyzing vendor contracts and contacts, and being prepared to address the potential invocation and impact of force majeure, exculpatory, and other potentially troublesome contract clauses.
- Keep an open door and an open mind: Allow and encourage client stakeholders to come to you proactively. Sometimes, it is better for all involved for parties to ask permission rather than for forgiveness. Be willing to hear unusual requests with an open mind, with a clear understanding that desperate times may call for some desperate measures, and that the law often allows for this or may be amended or waived to allow for it in certain disaster situations. If you believe that amendment or waiver of the law is needed and appropriate, ensure you have an open line to state and federal executive and regulatory agencies to advocate for or learn of disaster-related changes. Recognize that health care providers, their staff, and vendors may need unusual support and accommodations and that these may require careful consideration and navigation of state and federal laws and rules, including licensing rules, scope of practice rules, and even the federal Stark and Anti-Kickback statutes. Also, recognize first and foremost that patients may have special needs and situations, and that these special needs and situations may warrant careful consideration in the context of your client's policies, procedures, and protocols as well as in the context of the laws and rules of applicable regulatory jurisdictions.
- Before, during, and after the disaster, know your role, and the importance of it: Counsel may serve as a crisis-time negotiator, a knowledgeable advisor, a point of contact for regulatory assistance, and through any or all of these roles, a gate-keeper or gate-opener for access to safe and operational facilities, supplies, and equipment. Remember that although you are not a direct caregiver, your role may put you in a position to save or change lives, just as your clients do.