Posts

Details about the latest relief package

The latest iteration of the COVID-19 relief package from Congress has taken many turns, and it hasn’t even been finalized yet. Some points of contention include:

  • Hospital bailout money
  • Medicaid protection funds
  • Liability protections for health care professionals

Hospital funding is tricky, as well as a moving target. While elective procedures all but stopped in the spring, some hospitals have reported larger than expected earnings during the first half of the year. The current proposed bailout amount is floating somewhere around $25 billion, and while that may seem like a huge infusion to keep hospitals afloat, the industry’s original request was $100 billion.

Medicaid is also tricky, in that it’s supposed to be largely funded by individual states. But when certain states are on the verge of bankruptcy (and it’s a matter of opinion as to whether those reasons are entirely COVID-related), who but the federal government can provide a large enough bailout? The current bill is requesting roughly 12 – 14% in matching federal dollars. One main caveat in this federal bailout is that states cannot cut enrollment numbers while they are taking in the money from the federal government.

On the liability side for hospitals and health care professionals, the bill seeks to provide protections against COVID-related lawsuits. Further, the bill also proposes capping allowable damages if in fact those protections aren’t enough. But neither immunity nor a cap can literally prevent someone from filing suit. And fighting a suit, even if it is eventually dismissed, is costly. Not only in dollars, but in time, morale, and reputation. No one wants this burden when trying to triage patients, but it’s a sad reality for most in the health care industry.

Not all of the potential liability is related to COVID-19, though. Elective procedures that were canceled might have long-term effects on patients, even if they never had the virus. Other potential risk areas include employee protections (ranging from lack of PPE to burnout to overtime pay), misdiagnoses, ratio of personnel to patients, and equipment shortages, to name a few.

As with any legislation, this is largely a waiting game. If you haven’t already, educate yourself about the relief bill. And call your representative so that your voice is heard. Then call your medical liability carrier to see how all of this affects you.

Contact us today. We can review your professional liability policy to ensure your coverage aligns with current mandates and guidelines.

Footnotes

  1. https://www.politico.com/news/2020/07/27/senate-coronavirus-package-hospitals-medicaid-383375
  2. https://www.jdsupra.com/legalnews/minimizing-medical-malpractice-90844/
  3. https://thehill.com/policy/finance/509438-stocks-close-down-as-congress-clashes-over-covid-19-relief-bill
  4. https://care-ins.com/

Trends in Coronavirus Legal Issues

COVID-19 has left more in its wake than deserted office buildings and empty restaurants. Litigation claims touch on many aspects of daily living, including business interruption, workplace/employee impact, treatments and cures, legal rights issues, and price gouging, just to name a few. Specifically, health care professionals are closely attuned to the potential legal liability of missed diagnoses, failed treatment plans, and workplace safety. Although the federal government is working to shield healthcare workers from COVID-related liabilities, many civil and class action lawsuits are already in motion.

One major factor that providers can control is their existing liability coverage. It is not uncommon for policies to exclude losses due to unusual circumstances. Couple those exclusions with the fact that much of policymaking is open to interpretation, and you have as many answers to questions as you have experts answering them. What is usually considered ‘business interruption’ when it comes to tangibles, such as a fire or a flood, is easier to define. A physical disaster like that may well level a building, and certainly close a business for months. The owner is now without supplies, equipment, and income. They then file a business interruption claim.

These situations are not as easily defined when it comes to a global pandemic. A healthcare practice is certainly considered essential during such emergencies, so how is loss determined when you are still open for business? One example might be the acute slowdown for non-emergent patient care. This immediately affected healthcare providers from many areas, including dentists, ophthalmologists, and even preventive care providers. Potential patients stayed home for months, avoiding all healthcare facilities, not daring to risk exposure to COVID-19. Does your policy cover this type of situation? It is best to confirm with your agent or carrier now, before you need to file a claim. Discuss your current coverage, along with options to shore up any potential gaps in coverage, so that you can continue operations with that necessary peace of mind.

Contact us today. We can review your professional liability policy to ensure your coverage aligns with current mandates and guidelines.

Footnotes

  1. https://topclassactions.com/lawsuit-settlements/coronavirus/a-complete-guide-to-the-coronavirus-outbreak-legal-issues/
  2. https://www.dwt.com/blogs/employment-labor-and-benefits/2020/03/healthcare-employer-coronavirus-legal-issues
  3. https://www.insurancejournal.com/news/national/2020/04/09/564371.htm

Switching from Defense to Offense Amid a Crisis

We understand that our clients in the health care industry are inundated daily (dare we say hourly?) with information about COVID-19. You know how to handle the virus – for yourself, your practice, and your patients. If ‘triage’ wasn’t your middle name before the pandemic, it surely is now. You’re getting info from every news source, from your own administration and from health care experts around the globe. While we hope that our communications have been informative and helpful, we know it’s a lot to digest. And while it may sound difficult, now is the time to shift your focus. It’s time to move from defensive tactics to proactive planning.

You and your staff have been educated, and have learned from daily trial and error how to handle this crisis. With your business continuity plans tested and solidified, it’s time to turn your attention to new areas of focus. These include(1):

  • Workforce management: ensure employees that their personal safety, as well as nontangibles such as their mental well-being and work/life balance, are top priorities
  • Communications (internal and external): reach out to both your employees and your customers to let them know what you are doing to impact change during this crisis; remind them why they depend on you
  • Cybersecurity enhancements: times like these are ripe for exploiting weaknesses, so strengthen your security protocols before you experience a data breach
  • Operational changes: online breaches are not the only threat; access to physical locations needs a thorough review to ensure employee and patient safety
  • Supply chain plans: flexibility is the key to problem solving (for example: even non-virus-related issues, such as simple plumbing repairs at your practice, could take weeks due to parts availability and delayed delivery timelines)
  • Finance and liquidity: payment regulations shift constantly due to governmental oversight; be prepared for income fluctuations by forecasting multiple reimbursement models(2)
  • Regulatory influence: connect with both local and national government officials to offer valuable insight in crisis control and future pandemic planning

Yes, that’s quite an involved list. The good news is that it doesn’t all have to be accomplished today. Proper planning is paramount to switching to a proactive mindset. In the end, the investment of time, energy, money, and resources provides great payoff and benefits when compared with the alternative (wait-and-see) approach. One of the most important things you can do when developing these action plans is to remember why you got into the health care field in the first place. Those foundational principles(3) will guide you to building solid solutions for the elements outlined above.

Contact us today. Your professional liability coverage is just one of many tools you can leverage to set and attain the goals discussed here.

Footnotes

  1. https://www.pwc.com/us/en/library/covid-19/covid-19-and-insurance-industry.html
  2. https://www.forbes.com/sites/brentdykes/2020/04/29/why-your-business-must-double-down-on-data/#5bded2fe7a68
  3. https://hbr.org/2018/01/the-culture-factor

2020: The Perfect Storm

As if the pandemic itself was not enough of a hurricane-like event to the healthcare industry, the upcoming tsunami of lawsuits will surely drown what’s left of health care worker morale and mental health, not to mention bank accounts. The perfect storm of fast-paced changes and dwindling resources has left some providers wondering if their practice will stay afloat throughout 2020.

The healthcare world’s ancillary industries, such as liability and litigation support, ride the same wave of uncertainty and persistent changes in priorities. Weather disaster puns aside, we all must prepare for the upcoming litigation wave now within the confines of our current conditions.

Potential litigation points specific to the healthcare industry include(1):

  • Employment issues
  • Inadequate or improper provision of PPE(2)
  • Business interruption
  • Force majeure clauses in contracts
  • Price gouging complaints
  • Personal injury caused by negligence
  • Medical malpractice
  • Fraud or misrepresentation  

The first step to preparedness is education. Become familiar with how the bullet points listed above may affect your practice. Appoint someone in your organization to serve as a point person for all things pandemic-related. That way, all potential issues can be cross referenced and addressed quickly. This person’s duty is to stay attuned to ever-changing laws and regulations, both at the state and federal levels(3). Then they can take this information and scrutinize any internal policies for necessary updates and changes.

Staying proactive is paramount to staying ahead of potential litigation. Address issues before they become incidents to prevent costly disputes. We are all riding out this storm together, not as competitors, but as one large tribe, trying to save our families, our economy, our industries, ourselves, and each other.

If you are unsure whether your current policy provides adequate coverage for issues related to COVID-19, please contact us today. We can review your professional liability policy to ensure it aligns with current mandates and guidelines.

Footnotes

  1. https://www.natlawreview.com/article/be-prepared-onslaught-coronavirus-related-lawsuits
  2. https://www.marketwatch.com/story/what-we-are-confronting-now-is-really-unprecedented-coronavirus-related-lawsuits-are-poised-to-flood-the-courts-2020-05-08
  3. https://www.washingtonpost.com/politics/2020/05/08/lawsuit-coronavirus-congress/

Telemedicine Updates During an Evolving Crisis

It’s almost impossible to keep current on the constant barrage of new and evolving information regarding telemedicine care during the COVID-19 pandemic. The AMA has updated its Quick Guide(1), which is a series of playbooks that covers best practices and resources for patient care on virtual platforms. These playbooks cover topics such as:

  • Technology (platform options and features)
  • Budgeting and contracting with a vendor
  • Implementation
  • Developing policies
  • Staff training
  • Patient education
  • Coding
  • Payments
  • Other helpful resources

The U.S. Department of Health & Human Services(2) also provides a robust website with information on these topics. They even have a separate web page with information for consumers if your patients are seeking resources and education about how telehealth works. The Center for Connected Health Policy website(3) is also a good resource. Their site breaks down current laws and reimbursement policies at the state level for telemedicine care.

Telemedicine isn’t solely dedicated to COVID-19 patients. It is a smart solution for patients with chronic conditions because it helps minimize potential spread of the virus to the medically fragile population. Telemedicine is also a great option for patients with sudden emergencies. Reducing the number of walk-in patients at provider offices, urgent care clinics, and hospital emergency rooms exposes as few patients as possible to potential infection. Telemedicine can mitigate risk while still delivering care(4).

Telehealth does present its own challenges and risks. The potential for liability increases when providers cannot assess a patient in person. Even with the advent of remote patient-monitoring tools such as blood pressure monitors, Bluetooth-enabled devices, and other wearable technology, there is no substitute for in-person care. There is even equipment that can remotely capture images and communicate biometric data, but even one missed symptom can be problematic. Therefore, it is important to have proper protocols in place when implementing a telehealth option at your practice.

We can review your professional liability policy to ensure your coverage aligns with current telemedicine mandates and guidelines.

Contact us today. We are happy to put our expertise to work for you.

Footnotes

  1. https://www.ama-assn.org/practice-management/digital/ama-quick-guide-telemedicine-practice
  2. https://telehealth.hhs.gov/providers/
  3. https://www.cchpca.org/telehealth-policy/current-state-laws-and-reimbursement-policies
  4. http://exclusive.multibriefs.com/content/telemedicine-webside-manner-and-barriers-to-care/healthcare-administration

Be Prepared for the Pandemic Aftermath

One of CARE’s industry partners, SE Healthcare, offers a COVID-19 Malpractice Mitigation Toolkit(1) for hospitals, physicians, and senior care facilities. This toolkit is designed to protect you and your team against the risk of emerging malpractice threats and potential claims related to the COVID-19 pandemic.

Even the best-intended immunity laws will not prevent all pandemic-related medical malpractice claims because those laws are often focused on protecting treatment decisions surrounding COVID-19 patients. However, many non-COVID healthcare services and procedures were modified, delayed, or cancelled due to the pandemic. In turn, this crisis has created new legal risks, and the repercussions may place your organization at risk for malpractice suits.

The COVID-19 Malpractice Mitigation Toolkit features four components:

  • Brief survey to gauge liability risk
  • Dashboard for easy review of survey results
  • Education and actionable insights related to potential risks
  • Practical tools, templates, and other resources for immediate use

Although resources are stretched thin, NOW is the time to dedicate personnel, resources, and money to establish a contingency plan for when the pandemic fallout emerges. Ask your healthcare staff to provide input on what to include in the plan. Think about areas of risk specific to your health care practice. Potential areas susceptible to future litigation include:

  • Delayed diagnosis of other diseases
  • Ineffective care due to limited resources
  • Failure to appropriately implement telemedicine procedures leading to failed or delayed diagnosis
  • Lack of policies or procedures to prevent pandemic shortages
  • Failure to adequately create, update, or implement emergency preparedness plans
  • Inability to ensure ethical guidelines in place for appropriate allocation of resources
  • Failure to appropriately assure competencies for expanded scope of practice

Contact SE Healthcare(2) to learn more about this valuable toolkit. Here at CARE, we can show you other resources and benefits available to CARE members to help your practice navigate ever-changing mandates and policies.

Footnotes

  1. https://www.sehealthcarequalityconsulting.com/covid-19-malpractice-mitigation-toolkit/
  2. info@sehqc.com
  3. https://care-ins.com/contact/

The CARES Act: How It Helps Your Practice

The CARES Act(1) has many provisions that can help your practice during such trying times. It can be difficult to interpret, and also difficult to determine what steps to take to ensure you receive the benefits available to your practice. An update(2) from MGMA (Medical Group Management Association) can help you make sense of your options. Some highlights include:

  • The Act makes funds available to reimburse (through grants and other mechanisms) eligible healthcare suppliers (i.e., physicians) and providers (i.e., hospitals) for healthcare-related expenses or lost revenues caused by COVID-19
  • You are eligible for an automatic payment if you received Medicare fee-for-service (FFS) reimbursements in 2019
  • The payment amount is based on your share of total Medicare FFS reimbursements received in 2019

Conditions(3) do apply, of which you agree to when you confirm payment receipt. You must also sign an attestation within 30 days of receiving the funds. Some conditions include, but are not limited to, the following:

  • Providers may not “balance bill” patients for expenses related to COVID-19 treatment
  • Provide proof that practice performs diagnoses, testing, and/or care for individuals with possible or actual cases of COVID-19
  • Practice is not currently excluded from participation in Medicare, Medicaid, and other federal health care programs
  • Provider does not currently have Medicare billing privileges revoked
  • Payment will only be used to prevent, prepare for, and respond to coronavirus expenses
  • Submit reports as determined necessary to ensure compliance with conditions that are imposed on the receipt of funds
  • Maintain appropriate records and cost documentation relating to expenditure of funds

This list is not meant to be inclusive of all the terms and conditions relating to the provider relief fund. Please refer to the HHS.gov site for a full list of terms and conditions.

Contact us today. We can review your professional liability policy to ensure your coverage aligns with current mandates and guidelines.

Footnotes

Life Savers Need Saving Too

One of CARE’s trusted industry partners, SE Healthcare, has created a solution to help providers manage additional stress caused by the COVID-19 crisis. The Burnout Rescue Pack(1) contains seven short, impactful videos and seven audio files from burnout expert Dr. Dike Drummond. Providers receive immediate, actionable guidance to reduce anxiety levels and manage the challenges present in today’s health care environment.

The Burnout Rescue Pack features insights to help physicians:

  • Manage and lower stress levels
  • Prevent and address symptoms of burnout in themselves and their colleagues
  • Maximize downtime
  • Bonus feature: Earn up to 3.0 CME credits 

The Burnout Rescue Pack is a subset of training videos from the only comprehensive burnout program on the market: The Physician Burnout Prevention program. The Burnout Rescue Pack content was selected specifically to address the additional stress being placed upon physicians during the current pandemic crisis. The only cost associated with this package is a one-time fee of $49 per provider.

Included with the pack is a video thank-you message(2) to physicians from Dr. Drummond. Working in the healthcare industry is hectic, even on an average day, but the pandemic crisis is generating front-line PTSD episodes at an alarming rate(3). Even downtime, no matter how brief, should be planned with great care. Rest and respite are critical to rejuvenation, and enable health care professionals to return to the front line recharged.

Contact us today to learn more about the Burnout Rescue pack. We can also connect you with other physician wellness tools that are available to CARE members.

Footnotes

From Triage to Trial

Healthcare professionals working the front lines are faced with difficult decisions every day. Compound that with the COVID-19 pandemic, working around the clock, and worrying about their own health and safety. Basic triage decisions have evolved into heartbreaking shifts, with hardly any respite for those facing the onslaught day after day.

As is the norm in our litigious culture, what will follow is a wave of potential malpractice suits(1), some due to the triage decisioning process, and others because healthcare facilities lack basic supplies, such as face masks and ventilators. While it seems unthinkable to accuse a medical professional of making the wrong decision when they are putting themselves at great personal risk to treat so many others, it will happen.

The key to triaging patients during a global pandemic is consistency. It is paramount to determine – and stick with – clear, concise, specific policies that do not discriminate based on subjective criteria. A healthcare professional cannot simply decide if a patient is too old or too sick (based on other comorbid conditions) every time they triage a new patient. The clearer the guidance, the more objective employees can be. Follow up these decisions with proper documentation to ensure that guidelines were followed, and the documentation can serve as the collective memory, even once this pandemic has past.

There’s also the question of how to determine what a pandemic triage policy should be, when (hopefully), each of us will only go through something so impactful once in our lifetimes. For example, the next outbreak might not require such a large demand for ventilators, so how do we determine (and who decides) what is normal or expected?

In terms of prevention, healthcare facilities can support their personnel by addressing the anxiety and confidence dips that are normal during a global health crisis. Health care workers cannot calm and reassure the public when they aren’t being reassured themselves. The concerns of health care professionals can be summed up in five categories: hear me, protect me, prepare me, support me, and care for me(2).  

There is no clear way to end an article about an ever-evolving situation. So much is unknown and uncertain. The most important thing we as professionals in the healthcare industry can do right now is protect ourselves. And each other.

Footnotes

Preparing Your Practice for Telemedicine Care

The COVID-19 pandemic has healthcare providers evolving their practices daily as protocols for diagnosing and treating the virus change so quickly. Telemedicine has become an effective means of triaging patients while limiting exposure for both patients and office staff.

The AMA(1) has issued a guide to quickly establishing a telemedicine offering at your practice. Some suggestions include:

  • Establish an implementation team
  • Review malpractice insurance policy
  • Evaluate payment guidelines   
  • Select third-party vendor to provide services
  • Ensure HIPAA compliance
  • Train clinicians, care team members, and schedulers
  • Set up telehealth space at your location
  • Determine documentation protocols
  • Ensure you receive advanced consent from patients for telemedicine interactions
  • Conduct proactive patient outreach to spread awareness of telemedicine offering

The Department of Health and Human Services(2) has issued guidance to health care providers who are new to providing telemedicine options to their patients. They have confirmed that covered health care providers will not be subject to penalties for violations of the HIPAA Privacy, Security, and Breach Notification Rules that occur during the good faith provision of telehealth during the COVID-19 nationwide public health emergency. This notification does not affect the application of the HIPAA Rules to other areas of health care outside of telehealth during the emergency.

CMS (Center for Medicare & Medicaid Services)(3) has issued guidelines for Medicare and Medicaid patients. For private insurers, several healthcare companies have announced that they will make telehealth more widely available. Some are offering telehealth services for free for a certain period of time.

Contact us today. We can review your professional liability policy to ensure your coverage aligns with current telemedicine mandates and guidelines.

Please Note: Any communications relating to the impact of coronavirus/COVID-19 on insurance policies or healthcare protocols are not legal opinions, warranties, or guarantees, and should not be relied upon as such. We do not render legal advice or make coverage decisions regarding COVID-19 claims. Given the ongoing and constantly evolving pandemic situation, this communication does not necessarily reflect the latest information regarding recently enacted, pending, or proposed legislation or mandates that could override, alter, or affect existing insurance coverage. Please consult with an attorney for specific legal advice in this regard.

Footnotes