As the COVID-19 pandemic continues to rage across the U.S. and the world, health care system general counsel are behind the battle lines of doctors, nurses and other medical professionals.
BenefitsPRO’s sister site Corporate Counsel talked to two of them to understand what their days are like right now. Timothy Adelman, general counsel and chief legal officer of Luminis Health Inc. based in Annapolis, Maryland, and Robert Gerberry, senior vice president and general counsel for Summa Health System based in Akron, Ohio, described what they’re doing now in the pandemic.
Luminis Health includes Anne Arundel Medical Center in Annapolis and Doctors Community Health System in Lanham, Maryland. Adelman most recently was managing partner of Indianapolis-based Hall, Render, Killian, Heath and Lyman. He has served on the boards of the Anne Arundel Medical Center Foundation and the American Health Law Association, where he chairs its 2030 task force on the evolution of health care and health law.
Adelman said he has been physically on site with the rest of the executive team during the crisis.
Gerberry joined Summa Health in 2002 as an associate general counsel and advises on regulatory matters, and strategic and transactional projects, according to the company. He oversees legal services, corporate compliance, government relations and internal audit, among other areas. Before joining the company, he practiced law with the Cleveland firms of Calfee, Halter & Griswold and McDonald Hopkins. He currently is vice chair of the American Health Law Association’s In-House Counsel Practice Group, among other affiliations.
Summa Health was scheduled to merge with Michigan-based Beaumont Health, but the merger has been postponed due to the pandemic. Gerberry said he couldn’t discuss the matter and that he has been working remotely in the crisis.
Their answers to questions have been edited for brevity and clarity.
Corporate Counsel: What mainly has been the focus of your work since the pandemic started in the U.S.?
Timothy Adelman: Prior to COVID-19, I was involved in a wide variety of legal matters, including transactions, routine contracts for the health system and working with various business initiatives that were not focused on responding to COVID-19. Once COVID-19 became a threat, my core responsibilities remained the same but the subject matter of those responsibilities focus on COVID-19. As the chief legal officer, I am responsible for all legal matters, which includes contracting, advising on regulatory matters, overseeing our risk management program, addressing workforce issues, supporting our governing boards and much more.
While those core responsibilities consume the majority of my time, most of the responsibilities focus on some aspect of responding to the pandemic. If you were to summarize the focus of my efforts, they would largely fall into two big buckets: to ensure that we have an appropriate workforce to respond to the pandemic and to ensure we have appropriate supplies and physical space for our workforce to care for the patients.
By way of example, a current focus is on how do we minimize risk for employees, and how do we continue to have our focus on patient safety and quality in light of what we are doing to respond to the COVID-19 surge? When you anticipate having patients in a tent in your parking lot, that is a significant deviation from our standard operations. We need to ensure we can maintain workforce safety, patient safety and quality, regardless of the site of care. When it comes to supplies, maintaining an appropriate supply of personal protective equipment is critical. Resources are scarce and those that you can find are significantly more expensive. We have had tremendous community support, including local boat-building companies providing us their N95, members of our communities making masks and local restaurants providing food to our staff. We are also purchasing [personal protective equipment] directly from China, which is a substantial change in our normal supply chain operations. All of these resources are necessary, but it consumes time to locate the resource, ensure they are appropriate, contract for the resources and ensure they will be available to our workforce.
[Adelman said he spends a lot of time conferring with lawyers at other institutions within Maryland and across the country, including learning from those in COVID-19 epicenters such as New York.]
There is a strong sense of community among health lawyers in responding to this, and we are all grateful for the collective support of our colleagues.
Robert Gerberry: Prior to pandemic, the focus of my work was on transactional and strategic matters, and now it is much more on supporting clinical operations. For example, we have worked to support our supply chain to ensure we have the equipment and the supplies needed to battle this virus. The other core focus has been to analyze new government regulations and waivers, that is a core part of my practice now, [e.g., emergency declaration waivers to allow more workforce capacity, etc.]
[Telehealth is another focal point, he said]. With the government shutdown and allowing providers to take advantage of technology to see patients in their homes. Lawyers contribute in this area by working on IT [information technology] contracts, ensuring compliant use of the technologies and providing guidance on billing regulations to make sure providers operate in compliance with Medicare or commercial [insurance] payment standards. Each payer may have different rules around their billing requirements … however, they are trying to come up with consistent standards.
[Telehealth programs] need to be HIPAA [Health Insurance Portability and Accountability Act]-compliant, cybersecurity compliant and meet all appropriate contractual and evolving reimbursement standards.
[Like Adelman, Gerberry said he also is talking with other health care lawyers about the issues]. I think the collaboration among attorneys in the industry has been great. To best assist our clients, I am a big believer in being able to create dashboards to distill down legal subject matter areas and help our providers better understand legal regulations.
CC: What is the biggest challenge you are facing now in your role as top legal officer?
Adelman: We have been actively planning for the surge. In the coming weeks, we anticipate feeling the stress of that surge. It will impact our workforce, supplies and our physical space. Following the surge, we will need to refocus ourselves on what is the new normal. Balancing the focus on continued preparation, responding to the urgent issues and then focusing on post-surge operations will continue to be a challenge.
Our health system has made a massive pivot to realign all of its resources to respond to the surge. Like many health systems, our routine patient volumes have significantly declined. Once we resume regular in-office patient visits and elective procedures, there will be a corresponding “business surge” that will likely demand legal support in terms of contracting, regulatory guidance, risk management and more.
Gerberry: Taking very complex information and trying to interpret it very quickly. Usually we have a lot of time to read and process it, but now we are being asked to do it in real time. We are being asked to provide legal opinions in a more-expedited fashion. Lawyers are usually more plodding in their pace. You know, something is stuck in legal … and now we have to meet our client’s needs in a very timely fashion.
What is unique about our health system is that we have hospitals, a physician group and an insurance company, so we are responsible for both payer and provider regulations. We have also used our ACOs [accountable care organizations] to better manage patient’s care.
CC: What are you anticipating in terms of litigation connected to this COVID-19 crisis?
Adelman: I do not expect an increase in liability as a result of our response to COVID-19. First, I think the overwhelming majority of people understand that we are doing the best we can. We also have state law immunity for acting in good faith during a catastrophic health emergency. That immunity will certainly help to dissuade lawsuits. However, once we resume to a new normal and our patient encounters significantly increase, we will need to remain dedicated to our patient safety, quality and risk management programs. There will be patients who did not receive care during the pandemic response, and their health conditions may be exacerbated. We will certainly have to remain focused on helping those patients to the best of our ability.
Gerberry: Anytime you have an environment that has risk, as you have during the COVID crisis, you will have claims as people navigate the new regulatory environment. So we are trying to be as proactive as we can to make sure that we comply with all the new regulations that are out there. We will try to ensure the safest environment for our patients.
CC: What’s next for you as the chief lawyer at your institution?
Adelman: With the anticipation of a patient surge, patient care issues will likely be the most pressing legal issue. We have worked with our colleagues in other health systems and within our own system to develop policies and protocols to respond to challenging patient care issues. While a lot of planning has gone into setting up our decision-making structure, having to actually exercise that structure will be stressful on the workforce.
As the chief legal officer, part of my role will be to support our clinicians in delivering the best care possible within our resources. Unlike climbing to the top of a mountain, once we get past the surge, I do not anticipate an easy ride down. Rather, we will quickly need to pivot to resume our comprehensive community-focused approach to care for our patients. So while one segment of our business may feel like they get a chance to catch their breath, the rest of our business will quickly ramp up to meet the pent-up demand of patients that have foregone services during the height of the pandemic.
Gerberry: We as a health system are actively trying to re-engineer our business model. For example, how do we configure the waiting room so people aren’t sitting together. How can we use technology to allow a ping on your mobile phone so that you know when your appointment is. Some of those efficiencies and further adoption of telehealth will stick with us as we get through this crisis.
MP McQueen is editor-at-large at ALM Media and can be reached at [email protected]