Enhancing Workforce, Operations and Data

Adam Rubenfire: Hello and welcome. I'm Adam Rubenfire, Modern Healthcare's custom content strategist, and it is my pleasure to welcome you back to Reimagining Care: COVID-19 Action Steps, a video series sponsored by Hall Render.

Adam Rubenfire: In today's video, Part 3: Enhancing Workforce, Operations and Data, we'll discuss how leaders can optimize their COVID-19 response by reimagining operations, updating workforce policies and strengthening data management. We'd like to thank our sponsor, Hall Render, the nation's largest healthcare focused law firm.

Adam Rubenfire: Now I'm thrilled to introduce our guests for today, Bruce Bagdady, and Jeff Short, who are both shareholders at Hall Render. Bruce works in Hall Render's Detroit office and leads the firm's healthcare human resources practice group. He represents hospitals and health systems in the areas of employment and labor law. Jeff works in Hall Render's Indianapolis office and advises large and small healthcare entities on legal issues relating to information technology, EHRs, privacy, security and data.

Adam Rubenfire: Bruce and Jeff, thank you so much for joining us today.

Jeff Short: Thank you.

Bruce Bagdady: Thanks so much for having us.

Adam Rubenfire: Excellent. Well Bruce, we'll start with you. COOs and CHROs are working tirelessly to respond to the immediate challenges of COVID-19 while simultaneously trying to proactively imagine their operations in light of COVID-19. So they're trying to reimagine what operations are going to be like so that they're in a better situation in the event of another COVID-19 surge or future public health crises. So what types of actions are you seeing leaders in the industry taking and what questions are you seeing leaders that you work with grappling with today?

Bruce Bagdady: Yeah. Thanks, Adam. That's why there's been a lot going on obviously, because as you know, not only have leaders had to deal with treating COVID patients and taking good care of their employees, but the financial pressures that have come to bear by virtue of this pandemic have been tremendous. And this has resulted in a need to look at your workforce and possibly right-size the workforce so you are in a great position going forward.

Bruce Bagdady: Some of the things we've seen in this regard have been a reduction in pay for some employees, which for your exempt employees can create wage and hour issues or contract issues. We've had to look at countless contracts to see if there's flexibility built into those contracts to allow for a reduction in pay. Even for your nonexempt employees, there can be wage and hour issues involved to take those kinds of actions, as well as bigger picture items in terms of who are you selecting and is it based upon race, gender, all the protected classifications, and so have to be careful in those regards.

Bruce Bagdady: Other things we've seen are temporary reductions in force; furloughs, layoffs, which can have WARN Act implications, particularly as this pandemic drags out and the longer people are off, the more likely WARN would have triggered, but we didn't think that was going to happen originally, which is a bit problematic.

Bruce Bagdady: Our reduction in hours is also something some employers have done, which if you've got an H1B employee, there can be issues there. And to a lot extent, we've asked employees to be repurposed, to do things they haven't had to do before, because we have a new focus on what needs to be done.

Bruce Bagdady: Something we haven't seen are early retirement incentives, because that's something that requires cash up front, which of course now this is not a good time for that kind of a proposal. We have seen a little bit in terms of changes in benefit plans.

Bruce Bagdady: Number one, I guess I would say workforce right-sizing. The second thing I would say, and it's similar, is we've seen more and more work from home for nonclinical folks. We didn't see that a whole lot in healthcare. Maybe some medical transcriptionist and others that were in a position to work from home, but we're seeing that more and more in healthcare and that has both practical and legal ramifications that maybe we can talk about.

Bruce Bagdady: The third thing I would say is just the need to keep up. We've had laws that have been placed for a long time, but were never written with a pandemic in mind. And so there's been guidance issued by the regulatory agencies and guidance provided just about the pandemic from the CDC and public health organizations about what we need to do in the workplace, and so keeping up with those changes. And I would say, I think for the most part, the regulatory agents have been good in their guidance.

Bruce Bagdady: We did see, I think just last week that the Department of Labor's interpretation of the Families First Coronavirus Response Act, some of those regulations got struck down by a judge in New York. And right now people are scrambling with, well, was that just New York? Is it nationwide? Is the Department of Labor going to come out with a response? But all of that, which is to say, we've had to stay on top of these things, leaders have had to stay on top of these things, and from an employee standpoint, what that means is, well, what does the employer's policy say. So we've had to keep up revising policies, keeping them up to date in light of all the changes in the laws and the regulations.

Bruce Bagdady: I guess the last thing I will say in terms of issues we're grappling with and had to deal with is I think there's been an uptick in labor activity, union activity, both in terms of the amount of activity going on and frankly, the intensity of that activity. But those are I think the main areas that we've seen, where employers are grappling with what to do in this day and age.

Adam Rubenfire: Excellent. Jeff, I want to go to you. What are you seeing in the IT and data management arena? What questions are leaders that you work with grappling with?

Jeff Short: Yeah. Unfortunately, COVID-19 made for interesting times, but 2024 in the IT and data realm was going to be interesting times to begin with. We're on the end of spending billions of dollars to implement electronic health records throughout the healthcare industry. The 21st Century Cures Act adopted the information blocking law, which this year was the year for that to go into implementation and regulations to be issued.

Jeff Short: This law was meant to be disruptive to healthcare, and it will be. It's made to make the industry leave its convention and get the benefit of these electronic health records and truly get to the path to interoperability. It represents a major effort. Because it is challenging conventional thinking, it's going to require healthcare to work in ways that hasn't traditionally worked. And it's going to take a lot of effort for healthcare providers to look at how they handle, classify and release information, much as COVID-19 did.

Jeff Short: So these two are really fitting together, but challenging one another. Unfortunately, if we'd had the 21st Century Cures Act three years ago going into effect the information blocking, maybe the COVID-19 response would have been better, but now we're faced with having to do it at the same time, and these new processes will need to be developed, and COVID-19 is just the first opportunity to see why.

Jeff Short: Additionally, healthcare providers were already looking at these electronic health record systems they had put in place, and how did they get to the data. Most folks don't understand that these datasets are in some really disparate systems, in different formats and they don't talk to one another. Well, 21st Century Cures Act was hopefully going to alleviate some of those problems, but healthcare providers weren't waiting for that. They were already moving forward.

Jeff Short: Unfortunately, people in the trenches understood that these systems didn't talk, people outside the trenches didn't understand these systems don't talk, and now we're having to respond to that. And we have the government asking for different information as they learn more about COVID-19 and the response. They need different information than they needed three weeks ago. They need it in different ways. They're finding the ways they were collecting it didn't work and they need it in a different format and different types of data.

Jeff Short: So lots of changes going on all at once when you put those two going together, and then you add on top of that, responding to a crisis and maintaining privacy has been a challenge. The data privacy laws were meant to keep information from being shared. There were exceptions, but the problem with HIPAA and other privacy laws are they're varying interpretations. And there's varying interpretations when you acquire participants in the healthcare industry to work together. One thinks something can be done, one thinks it can't, and given the potential liability of HIPAA and other data privacy laws, folks were a little bit paralyzed.

Jeff Short: Fortunately, the government did do the enforcement discretions that they put out to help alleviate some of those concerns and they also did some guidance. Some of that guidance was preexisting and just brought forward again to remind people. But one of the things I think healthcare will face coming out of COVID-19 and in the continuing COVID-19 is what's the new normal look like? What of that guidance, what are those enforcement discretions need to stay in place because we're now operating in different ways? There'll be a lot of working out the privacy aspects as we come out of this.

Adam Rubenfire: Absolutely. Thank you. We'll get to a little bit more about interoperability and data blocking rules down the line in this conversation.

Adam Rubenfire: Bruce, I want to go back to you and break down some of these emerging trends and legal considerations that we're talking about. You mentioned that some employers are moving toward work from home arrangements for nonclinical staff. Let's get into that a little bit more. What types of legal and practical considerations should leadership be thinking about when they're implementing these types of arrangement?

Bruce Bagdady: Yeah. You're right; there are both practical and legal issues that need to be looked at. I think we start with the practical. The first thing you have to figure out is who can do the work from home. Obviously our clinical folks can't. From an administration standpoint, I think certain folks need to be at the hospital, having a presence, doing the work and standing there with the employees, showing that they're still there. Others, maybe not as important that they be at the hospital.

Bruce Bagdady: For example, I think public relations folks can perform well working from home. I think some of the account receivable, account payable, some of the finance folks can do their job very successfully, very efficiently working from home. And so you need to kind of walk through who can and who can't, and that needs to be done consistently. You're not going to say certain people in a given job classification are going to work from home because they're older, or they're younger, or they're female, or they're male, you name the protective classification, you need to show some consistency in making that decision.

Bruce Bagdady: The second thing of course, is the technology. For the most part, if there's a laptop and internet access, folks are going to be able to do their jobs from home. Some folks might need additional accommodation. If someone has, for example, a back injury that might need a particular kind of a chair that they need to have at home to do the job. But for the most part, I think the how part of it isn't that difficult.

Bruce Bagdady: Some of the other practical issues that come with is how do we provide oversight for these folks? How do we monitor productivity of these folks? What kinds of hours are they going to work? I know in terms of the monitoring, there are more and more tools out there that allow us to monitor. We do need to be careful in terms of privacy concerns and getting the proper consent and having the right policies in place before we just go out on our own and monitor people. Electronically we know with all the electronic meetings, Zoom and the others, you can record meetings, but are you going to do it without having the appropriate policy and consents in place. That's obviously an important issue.

Bruce Bagdady: The hours worked is important, and we've got more flexibility than we used to have. So for our nonexempt for our hourly employees, typically what the Department of Labor would have expected was that you worked from 9:00 to 5:00, 7:00 to 7:00 or whatever your shift is, and that's the way it needs to be. Given on what's going on with the pandemic, giving on what's going at home in light of the pandemic where parents now have children at home that don't have daycare centers, or going forward in the fall a lot of school districts are going to have virtual learning, so those kids will be home. How does that person work and at the same time take care of their children?

Bruce Bagdady: And so the Department of Labor has said, "Look, we are okay if you come up with kind of a chopped up schedule," no longer a continuous schedule, but a chopped up. So you might work 6:30 to 9:00 in the morning, get back on it at 3:00 in the afternoon and go to 6:00, and then again 9:00 to 10:00 at night, whatever it is to get the hours in. So that's something employers can think about doing for their nonexempt employees if it works. Some classifications it's not going to be very viable.

Bruce Bagdady: Also for our exempt employees, there's a little concern. If an exempt employee is not doing much work during the course of a day, well does that mean we can dock their pay? And of course the short answer to that is no. That if an exempt employee performs work during a day, they need to be paid.

Bruce Bagdady: The last legal issue I think, and it might be the biggest one is the ADA and accommodation issues. A lot of employees are working from home now. Some of those employees, when it comes time to go back to work are going to be in a position to say, "Look, I have a particular disability. I need to continue to work from home." And oftentimes in defense to those types of requests, an employer can say, "That would impose an undue hardship on us to allow you to continue to work from home."

Bruce Bagdady: The EOC has come out and said fortunately, "Look just because we told people they can work from home during the pandemic, doesn't automatically mean they get to do it when the pandemic is over." Because an employee would say, "Well, it can't be an undue hardship on you; you let me do what these past three, four, five, six months, why can't I continue to do it?" So the EOC has given us some flexibility in the accommodation arena. We're still going to have to do a case by case analysis on whether an accommodation is reasonable and whether or not it imposes undue hardship, but our hands are not tied by virtue of the flexibility we've been given during the pandemic.

Bruce Bagdady: I think those are the main practical and legal issues that you're going to see in the work from home environment.

Adam Rubenfire: Wow, a lot to think about.

Adam Rubenfire: Jeff, IT and data folks and health systems are working tirelessly right now. It's just an unprecedented situation with work from home, nonclinical staff, and frankly, some clinical staff as well. What types of considerations, both legal and practical, are you talking about with IT clients?

Jeff Short: Yeah, it's pretty straightforward. It's security. Healthcare was already under attack by cyber criminals before COVID-19. COVID-19, and the fact that the IT had to go out and deploy countless new systems to enable the work from home, the virtual care, just creates more attack vectors. They were designing and deploying these systems simultaneously in order to maintain care, which was critical at the time. When that occurs in a matter of days or weeks, that creates exposures. So now they're talking about how do they go back and reassess those systems? What training should they be putting in place? What additional systems should they be putting onto those desktops being used remotely to make them secure?

Jeff Short: Also you're thinking about these enforcement discretion guidance that have enabled things to occur. What has become normal today in COVID-19 times, very well may be normal post-COVID-19. So now providers are looking "Okay, we've allowed this work from home. People are getting comfortable with it." In some instances, it maybe it's even working better than what they had before. So before COVID-19 and during, they've had really stringent remote access policies. And coming out of COVID-19, will they go back to those stringent remote access policies, or will they be looking to technology and policies to enable them to continue what has become normal today during COVID-19, and maybe it remains to be normal post-COVID-19.

Jeff Short: That's what they're thinking about when it comes from the nonclinical work from home.

Adam Rubenfire: Excellent. Staying on policies, and I'll stick with you, Jeff. You both mentioned that being proactive, COOs, CHROs they should be revisiting their policies and procedures based on lessons that they're learning during this COVID-19 pandemic, and they're learning them every day. Can you speak to the specific types of policies and procedures Jeff, that you've seen are impacted by COVID-19 and advise us of what employers should be doing proactively, what they should be reviewing and updating?

Jeff Short: Sure. As I just said before, COVID-19 really challenged conventional thinking. It's forced innovation and adaptation at a pace that healthcare just typically doesn't go through. I think because of that, current policies and procedures are based upon that conventional thinking, and because of that, when we're now in the nonconventional, we need to look at those policies and procedures and adjust them. As I said, with just security remote access. What would have been perfectly reasonable prior to COVID-19 with the virtual care work from home, it's no longer reasonable. I fully anticipate with the expansion of virtual care that that will continue on past COVID-19 and they need to be looked at.

Jeff Short: With healthcare being such a regulated environment and the risk imposed by those regulations from a compliance perspective, it's really important for two reasons to go back and look at policies and procedures. One is operations that don't comply with policies and procedures obviously are going to expose you to compliance risk and potential liabilities. But the other is when people have adapted as they have during COVID-19 to make current policy and procedure work with varying interpretations, that results in divergent behaviors, and those divergent behaviors will slowly get potentially worse and worse. And when you have people in the same health system behaving differently under the same circumstances, you create compliance risk as well.

Jeff Short: This will really be true if you're looking at HIPAA, you're looking at information blocking, those very much tie to, are you doing what your policy and procedure says? So the policies they'll need to be looked at, include such things as the remote access policy, telehealth virtual care policy, their public health uses policies, how they approach and interact with public health, research. A lot of research has happened. A lot of things have happened out of the norm with respect to research during the COVID-19 national health emergency. What needs to be adapted there?

Jeff Short: As part of COVID-19 and going into information blocking, what systems constitute your electronic medical record. Healthcare generally, hadn't been confronted with that issue in a very significant way until they started being asked for this information, and now with information blocking now becoming even more important. And then finally just data release. Lots of requests were coming in from employers, from schools, from mayors, from governors, what could they release. And they really were challenged to think about the conventional and what really was permissible, not just what did they conventionally think was permissible in their interpretation of those laws and regulations.

Jeff Short: From the data and privacy standpoint, those are the ones I think there'll be looking at.

Adam Rubenfire: Thanks Jeff. We know that hackers are taking advantage of health systems during this time, unfortunately, because they're vulnerable during this time.

Adam Rubenfire: Bruce, I want to look to you for HR, for policies and procedures related to human resources. What are you seeing? What are you working with your clients on to proactively review and update during this time?

Bruce Bagdady: Yeah. I would echo Jeff's thoughts in terms of if the policies aren't adopted and if they aren't consistently enforced, that's going to create in the HR world divergence of behaviors, which as soon as you have divergence of behaviors, that's a real compliance and liability concern. So keeping up to date has been extremely important in the HR world. I mean, it's to the extent that at Hall Render we've developed a tool for our clients to help them gauge where they are at a given time to make sure they're compliant, which has been very helpful and something that others should think about if they have the opportunity to kind of take a snapshot and make sure they're in compliance.

Bruce Bagdady: In terms of the specific policies, we could probably talk for hours on leaves of absence in light of revisions and adaptions to the FMLA, with EPSLA and the E-FMLA and other things, what are you going to do with non-FMLA leave time for employees that maybe need time at home that we typically wouldn't allow to be at home. A lot of employers are looking at their attendance policies. So an occurrence or an incident that might give rise to corrective action, maybe we're not as strict as we used to be. You're seeing more and more of that going on in the work environment.

Bruce Bagdady: A lot of employers don't have work from home policies even to this day. I think obviously that's changing and we need to have those policies in place to make sure that we're being consistent with how employees are being treated in the work from home environment. Obviously again, with that inconsistency creates opportunity for liability.

Bruce Bagdady: Return to work policies is another one. So if someone comes back from a leave, how are we treating them? We know the EOC has said, we can do screenings. We can do COVID tests. They don't like us doing the antibody test by the way, but we can do the screenings and we can do the COVID test. And so return to work policies need to be either adopted to begin with or revised in light of what's going on in the world right now.

Bruce Bagdady: Another one is travel policies. When you think about it, particularly if you're a health system in a multi-state environment, every state had something that's probably a little bit different in terms of, if you come into our state or if you leave our state, how many weeks quarantined do you have to do? And even within states, there are variations in terms of quarantine time. So having a travel policy that recognizes the ability to travel in limited circumstance and recognizes all the different quarantine requirements is something that employers are struggling with. We tend to see more generic policies in travel policies these days, rather than specific state by state, because frankly you have to. But that's something that needs to be looked at as well.

Bruce Bagdady: The last one I would say is vaccinations. The flu vaccine has been a big deal in healthcare for a long time with a lot of players mandating the flu vaccine, some not. And I think those who have not might be revisiting that and thinking we need to push harder on the flu vaccine because we need our employees working in the hospitals and health systems to be free of the flu. But then what's next? COVID vaccine, when that comes out, employers need to start thinking now, are we going to require our employees to take the COVID vaccine? Are we going to require it immediately? Are we going to give a grace period to make sure that this vaccine is actually effective and doesn't have side effects? Those are the kinds of conversations that need to go on now so that when the vaccine comes out, we've got the appropriate policies in place.

Bruce Bagdady: I think those are the main policies that employers need to look at and continue to keep updated.

Adam Rubenfire: Excellent. Well thank you, Bruce. Bruce, I want to stick with you. You'd had mentioned that you're seeing an uptick in labor activity. What's your perception of how COVID-19 is impacting both unionized and non-unionized workplaces and what steps, if anything, can healthcare employers take to be proactive as a result?

Bruce Bagdady: Yeah. That's a good one. I think a lot of it is having an awareness. If you look at the world we're in right now, obviously the frontline workers in hospitals have gone through a lot in dealing with COVID patients and going through scenarios where it was at least perceived that there wasn't enough PPE, there wasn't enough other equipment needed to help them be protected during the COVID pandemic. There is certainly a perception that given that situation, that those employees have leveraged both in organizing and an actual negotiations. In other words, we've gone through all this on your behalf employer, now you need to recognize this great work we've done, and that's the kind of attitude and presentation we're seeing in union negotiations. It's also, you have to believe and understand that in the nonunion setting, that same mindset is there, and so you worry about is that going to lead to more organizing activity.

Bruce Bagdady: You lay that up against the idea that hospitals and health systems, while they've gotten federal aid and federal assistance, at least in my experience, there is still a huge impact, negative financial impact on hospitals and health systems. We have a scenario where those frontline workers feel like they are entitled to more, and that's an understandable feeling, but at the same time, we have hospitals and health systems who are not in a position to provide more. So you get that dynamic, and all of a sudden you see this uptick in both the intensity and the amount of labor activity going on.

Bruce Bagdady: We've seen an increase in organizing. We've seen an increase in requests for information from unions to employers, where they want to know how many of our workers have been exposed to COVID. How many have been off because of COVID? What's your count on the PPEs? What about assignments? Whose assignments have you changed? Things of that nature. They're definitely watching what the employers are doing, and there's some burden that goes along with responding to that.

Bruce Bagdady: We're also seeing requests to bargain over COVID related issues from unions. In other words they want to bargain about staffing issues. They want to bargain about PPE. They want to bargain about assignments. Now, if you're in a unionized workforce, there's a good chance your contracts already cover those issues and you don't have to bargain, but that may not be the case. So it requires a careful review of the agreements you have in place. As I said before, we're certainly seeing more aggressiveness at the bargaining table because of this dynamic of, we have frontline workers who are heroes versus the financial situation that the hospitals and health systems are put in.

Bruce Bagdady: The the last issue that I think, and it goes back to something we said a minute ago, is vaccinations. We know, obviously that's an important issue for hospitals and health systems. Some unions are very fervent in their opposition to mandatory flu vaccinations, and I think we can expect that as well if we want to go down the road of mandatory COVID vaccination. So again, something to think about now in terms of how are we going to approach that if we have union negotiations coming up.

Bruce Bagdady: I think in terms of the nonunion environment, you always need to make sure you're engaged as possible with your employees. Nonunion employers might want to think about doing a risk analysis in terms of where they're at with any vulnerabilities, do we need to train leaders so that they better understand and have the pulse for what's going on in their units and in their departments.

Bruce Bagdady: And obviously always a robust communication plan, I think is really important. If employees come to understand that we are doing what we can on your behalf and on behalf of our patients, we may not be able to do for you what you would like for us to do, but we're doing all we can and that's openly communicated, that goes a long way to creating a feeling like I'm working at a place that cares about me. It's important in all environments, but in the nonunion environment I think it's a protective shield. And even in the union environment, I think that that information needs to be conveyed, that we're doing what we can in this environment and getting information out so they can actually understand that that is what's going on.

Bruce Bagdady: Interesting times for sure, and communication in my mind is always very important in these situations.

Adam Rubenfire: Excellent. Interesting times is right.

Adam Rubenfire: Jeff, I want to give you the last word. You mentioned some significant data management issues that proactive COOs are dealing with right now. Tell me more about data management and the issues that providers are facing right now. And I'd love to delve a little bit more into the new data blocking interoperability rules that are going into effect because yes, we are in a crisis, we're in a pandemic, but these rules they're still coming. Can you give us some insight?

Jeff Short: Yeah. Let's just start at the 21st Century Cures Act and the information blocking law. As I said before, this is meant to be disruptive. It will be. It is meant to force healthcare providers and EHR vendors to make data sharing possible, make it available, to give patients greater access. This started with HIPAA and patient access rights. It came further with meaningful use and the EHR incentive program and the growing criteria through the meaningful use program, and it comes to rest at information blocking.

Jeff Short: Make no mistake, this will take a lot of effort. And even in normal times, the timeline for information blocking compliance was going to be very aggressive, and with COVID-19, it is even more aggressive. On top of that, we're less than three months from the compliance date and we have yet to see guidance from the government, which really makes it challenging for providers that they're trying to do this while still dealing with everything related to COVID-19. That is a real challenge when while very well written, very extensive regulations were issued when you start trying to apply that in practical terms, lots of gaps open up very quickly. And again, back to the varying interpretations, and we really can't have varying interpretations when it comes to something that has for EHR vendors a million dollar per violation, potential penalty.

Jeff Short: We need some clarity and that clarity is not going to come in the next three months. What are the healthcare providers and the EHR vendors faced with? They're faced with first the understanding, what does information blocking cover? What is electronic health information? What in their systems represents electronic health information? And understanding that as of November 2nd, what is electronic health information is different than what will be electronic health information for compliance purposes in 2022. And so they're dealing with that. 2022, everything is really covered. Prior to that, we have the USCDI.

Jeff Short: And then they have to understand these exceptions, these safe harbors, and how to apply them. They're multifaceted. They aren't, if you do this, then. It's if you do this and or this, that, and the other, you're okay. And understanding that all in the backdrop of nothing in any of these initiatives was meant to harm patient privacy. It's a struggle. How do we advance interoperability and sharing of information while not sharing so much that we jeopardize privacy? It's going to be a major effort. It's going to get challenged to the conventional thinking. Things that have been long held standards and beliefs in healthcare are going to be challenged and upset by the information blocking law and the interpretations and guidance we will eventually get out of the government. It will require rewriting policies. It will require reworking systems. It may very well require whole new departments and institutions as they have to respond to and adapt to these requests for electronic access to information.

Jeff Short: It's going to be interesting to watch it play out, and it's going to be challenging.

Adam Rubenfire: Wow, no shortage of work for anybody in healthcare.

Adam Rubenfire: Well, that brings us to the end of our conversation. Thank you so much, Bruce and Jeff for joining us. What a great conversation. And thank you to our sponsor Hall Render. To learn more about Hall Render, please visit hallrender.com. To our audience, thank you so much for joining us. Stay tuned for our next video, which will focus on partner alignment. Have a great day.