The healthcare industry has been thrown numerous curveballs over the past year, from an unprecedented Supreme Court decision regarding access to abortion care nearly a year ago to the end of the COVID-19 public health emergency last month—along with a rocky economy and staffing shortages.
In response to the uncertainty, lawyers working with health systems, nursing homes, digital health startups and provider groups have seen the demand for certain services spike.
In this second installment of a two-part series, lawyers share two of the biggest reasons their healthcare clients are seeking counsel: telehealth flexibilities and workforce challenges. For part one of the series, in which lawyers discussed changing reproductive care policies and federal scrutiny of deals, click here.
Remote prescribing regulations
The Drug Enforcement Administration and the Substance Abuse and Mental Health Services Administration said in May that they would extend pandemic-era telehealth flexibilities regarding controlled substances for six months, allowing providers to prescribe medications such as Adderall, Xanax and the opioid addiction medication buprenorphine remotely without an in-person visit. Lawyers say their digital health clients have come to them with questions about how to stay compliant with federal regulations after November.
“We’ve advised that companies and providers impacted by these changes need to come up with contingency plans. … At this point, it’s clear that we’ll be landing somewhere in between that pre-pandemic landscape and the expansive waivers currently in place,” said Jeremy Sherer, co-chair of the digital health practice at Hooper, Lundy & Bookman.
Sean Sullivan, a partner with the healthcare group at Alston & Bird, recommends having documented compliance programs in place, which could include modifying operations by opening new brick-and-mortar clinics, referring patients to other providers with physical locations, or using other counseling to treat certain conditions.
Even as virtual-first companies modify operations or pivot to in-person visits, Sherer expects the DEA to continue probing some providers. The agency launched investigations into mental health startups Cerebral and Done last year regarding their prescribing practices for Adderall and other controlled substances.
Ongoing workforce shortages have triggered worries among healthcare organizations about staffing.
Skilled nursing facility operators are particularly anxious, given President Biden’s signal in February 2022 that his administration plans to propose a minimum staffing rule for such organizations. Clients are concerned about the costs of meeting the potential requirement and finding workers, said Sean Fahey, an attorney at Hall, Render, Killian, Heath & Lyman representing skilled nursing facilities.
He is talking with his clients about the rulemaking process and urging them to comment on a proposal once it’s released, which the Centers for Medicare and Medicaid Services said could happen this spring. In the meantime, operators have been assessing how to improve recruitment and retention.
“We hear our clients taking many different avenues to try to address and build their workforce. From exploring immigration to culture to working with staffing agencies, they’re trying everything,” Fahey said.
Leaders at health systems, which also face difficulties filling clinical roles, are seeking ways to strengthen employment agreements.
“At the end of the day, you want to be able to incentivize folks to not leave you so that no patient care is going to be hurt,” said Jaime Tuite, shareholder and head of Buchanan Ingersoll & Rooney’s Pittsburgh office.
Health systems need to play the long game, whether that’s incorporating long-term work contracts in employment agreements or offering bonuses and tuition reimbursement after a certain amount of time with the company, Tuite said.
“The goal is we’re going to invest in you, and we’re going to spend money that we otherwise wouldn’t, because we want you to grow here,” Tuite said.