Special Reports

With Covid-19, healthcare in-house counsel face their greatest test yet

Even before the public health crisis, the role of in-house counsel for hospitals and health systems was evolving with the need to be a strategic business partner. Covid-19 has added to their priorities with pressing needs such as addressing PPE shortages and scaling telemedicine access.

At any given time, healthcare in-house counsel have a lot on their plates. This includes, but is not limited to, negotiating contracts as part of the broader consolidation trend in healthcare, adapting to regulatory changes from the FDA and HHS, managing data privacy and cybersecurity issues, and weighing in on an array of medical ethics issues.

But the public health crisis that has emerged with the rise of Covid-19’s impact on the U.S. has added to healthcare in-house counsel priorities in dramatic ways.

Werner Boel, a senior partner with executive recruiter Witt Kieffer in its Atlanta office, said even before the public health crisis the role of the in-house counsel for hospitals and health systems was evolving.

“They need to be a strategic business partner to navigate partnerships with other institutions, such as facilitating acquisitions, working with third parties for population health management, helping hospitals improve access to care for underserved patient populations, and negotiate regulatory hurdles.” 

It was a point emphasized by Lauren Rowinski, Virtua Health General Counsel.

“You have to have a business acumen to be an effective legal partner.  Look at the impact of reimbursement for commercial and government payers. You could be a fantastic lawyer but you must have a solid understanding of your clients’ business in order to be an in-house attorney who can help your organization advance its strategic objectives.

“I was so impressed with our operational leaders’ roll out of telehealth from our Access Center,” said Rowinski. “Our patient scheduling center became the central focus. It was very important to further expand our telehealth services for both Covid-19 and non Covid-19 related cases. Although the Legal Team helped with matters such as reimbursement issues, the real heroes were the ones who set this up and expanded the services in such a quick period of time.”

AI in healthcare and its push to automate tasks has been a major issue in healthcare because it poses myriad questions on data collection, such as data privacy, cybersecurity, reliability, and how best to integrate these tools. And then the Covid-19 public health crisis came along and in-house counsel priorities shifted immediately in ways they never have before.

Boel noted that in a recent conversation with a GC, they were addressing a request from the state’s governor to make ventilators available to other parts of the state. GCs are providing advice to their CEOs on numerous Covid-19 matters that span addressing PPE and ventilator shortages to scaling telemedicine and telehealth capabilities across their health systems. Another related issue all GCs have to contend with: How to restart their elective procedures and other non-Covid-19-related operations so they can generate revenue at the levels they did before this public health crisis began.

Digital health integration poses challenges for any hospital but health systems were forced to scale telemedicine and remote patient monitoring capabilities in a matter of weeks to prevent nonemergency patients coming for in-person appointments. That switched the work of healthcare in-house counsel into overdrive. 

Rowinski noted some of the short and longterm consequences of digital health integration and adoption for hospitals.

“Digital health technologies and transformation are so important and Legal has to have a seat at that table to understand the strategies as they are developing in order to, in real time, help the organization with regulatory requirements as well as weigh the risks because they have not yet been fully defined. The government agencies are issuing guidance but they don’t have all the answers either.”

Like many teams within businesses, in-house counsel have had to find new ways of engaging with each other to stay connected. Rowinski said her group has had to change the way they do business as a result of the Covid-19 health crisis. But like other in-house counsel teams, they have had to think about how best to deploy their staff in a way that allows their organization to pivot quickly in uncharted challenges for the health system. That can be tough when almost everyone is working remotely. For example, the Legal Team has streamlined legal contract reviews to reduce going back and forth with vendors.

At the Medical College of Wisconsin, (MCW) delivering medical education poses some challenges in a public health crisis but Jack Newsome, the general counsel, described his institution as one that’s well-prepared to meet them. The pandemic got underway almost as soon as the institution had completed a land transaction to acquire the property MCW and its physician practices had leased from the county for years. 

“We’re completely changing our business model on the education side. We were lucky because we have two remote campuses,” Newsome said. “We were already providing remote education with tele-education.”

Newsome noted that much of MCW’s content was already in a format that could be easily adapted to a tele-education setting. They just had to adapt to testing in that environment. So MCW should be well positioned if it decides to continue online learning through the Fall.

He acknowledged that halting elective procedures, a critical source of revenue, has created a significant financial burden for most healthcare organizations, including the Medical College of Wisconsin. The question all healthcare organizations face is, how do they restart? 

At the Baycare Health System in the greater West Central region of Florida, Scott Kizer, Baycare Chief Legal Officer, said regulatory compliance is a number one priority. Contract compliance is also a high priority.

Prior to the pandemic, one area of focus for Kizer was supporting the health system’s goal of expanding its service delivery model throughout its market area to better meet the needs of the community and the changing healthcare landscape. It also launched its own Medicare Advantage insurance plan in 2019.

With the rise of Covid-19 cases, the health system has turned its attention to increased testing capabilities, securing necessary staffing, and providing safe and compassionate care while preparing for the seasonal influx of residents at a time when health systems likely will be contending simultaneously with both the flu and Covid-19. Baycare has also ramped up its existing telemedicine offering to provide convenient access to high-quality care through a mobile app accessible with a smartphone or other digital device.

Rowinski, Newsome, and Kizer each said they have worked with regional organizations so they can gain insight and support from neighboring institutions and help each other when they face other crises in the future. Kizer noted he checks in with a group of 20-30 general counsel to share lessons learned since the pandemic started.

Although the path forward will be different for each of these institutions, it is undeniable that general counsel have gained considerable insights into navigating the Covid-19 pandemic that will shape their health systems for the foreseeable future.

Photo: Getty,Yuri_Arcurs