What Comes Next? Eight Things to Look for in the Healthcare Industry After the Pandemic

November 03, 2020

At this point, there are few if any people left in the United States whose lives have not been impacted by COVID-19.  In New York, where the impact has been especially pronounced, the peak of the pandemic has passed, and the loss of life – while profound – has not been as extensive as originally feared.  The Governor has stressed that this is likely due to the actions taken by the state, federal and local governments to enforce social distancing, and any relaxation of those actions will likely result in a resurgence of the virus.  However, those social distancing mandates themselves are having a huge economic and social impact that will likely continue to be felt long after they are repealed.

Nowhere has the impact been felt more drastically than in the healthcare industry.  The impact on hospitals – which were required to radically expand their capacity and incur substantial additional costs – is widely acknowledged, as is the impact on nursing homes and other residential long-term care provider where the disease has had a disproportionate impact.  However, every provider has been impacted to some extent, whether because they were called upon to take extraordinary measures to address COVID-19 directly, or they have been forced to change their service model to ensure that their patients can continue to receive essential services, or they were forced simply to cease operation during to lockdown like any other business.  Each of these alternatives will likely have a long-lasting impact on the affected providers.

It is impossible overstate the tragedy of COVID-19 in terms of the loss of life, the impact on public health, and the effect on our social fabric more generally.  But in the long run, not all of the impacts will be negative.  By forcing providers – and all the rest of us – to rethink how services are delivered, in many cases COVID-19 simply accelerated changes that were already occurring, or otherwise encouraged new ideas that will result in a more efficient system that is better able to handle similar challenges in the future.  Some the areas impacted include:

Telehealth.  This is the one everyone is talking about.  For years, state and federal laws and regulations have been woefully behind our technological capacity to deliver healthcare services at a distance.  The necessity of allowing such remote delivery of services during the pandemic – and of allowing such services to be reimbursed by Medicare and Medicaid as well as commercial payors – has effectively forced regulators to accept telehealth solutions that they previously hesitated to approved.  The statutory and regulatory waivers that have permitted the expansion of telehealth services are likely to become a permanent feature of our healthcare system.

Hospital Capacity.  One of the first concerns during the pandemic was whether hospitals would have the capacity to handle the influx of patients needing intensive care services.  Predictions suggested we did not, and a scramble ensued to expand capacity in existing hospitals and essentially build all new hospitals from scratch.  As it turns out, we ended up with more capacity than we needed, likely due to aggressive action to enforce social distancing that reduced the spread of the disease.  But the need to establish a more effective system of surge capacity is clear, and it is unclear what that will look like in the future.  It is well-established that it is not good for the system to have to maintain significantly more capacity than necessary on an ongoing basis.  So what will such surge capacity look like in the future?  Some new concept of “surge beds” that come on line during state emergencies?  Modular construction that can be put up when additional beds are needed and removed when they are not?  Some kind of shared excess capacity to which all hospital or hospital system partners have access when necessary?  The result remains to be seen.

Staffing Shortages.  One of the thorniest issues impact healthcare delivery is the fact that, no matter how perfect your models of care are, they will not work unless you have sufficient staff to implement them.  One of the more inspiring moments during the pandemic occurred when thousands of licensed professionals who were retired or otherwise non-practicing or practicing out of state responded to the call for additional staff and risked their lives to help handle the influx of COVID-19 patients.  What impact will this have on our persistent staffing shortages?  Will existing shortages increase, as people who otherwise would enter the healthcare professions decide not to risk their lives?  Or will they decrease, as people are drawn to them in greater numbers now that healthcare professionals are being recognized as heroes?  And what impact with this have on things like professional salaries, minimum staffing requirements, and related reimbursement?

Scope of Practice.  Closely related to this is the impact on scope of practice.  As with telehealth, up until the pandemic licensed professionals and others had been subject to old scope of practice laws restricting what they could do, that have been waived during the current crisis.  That is clearly a good thing in cases where those laws are based on outmoded notions of technology (e.g., where a clinical lab test used to require an exercise of professional judgment, but now occurs more or less automatically).  However, scope of practice rules exist for a reason, and a sustained waiver of those rules could have long-term consequences for patient safety and outcomes.  And permanent expansions in scope of practice could improve some staffing shortage issues, but worsen others.

Provider Cooperation.  The healthcare delivery system was already moving toward greater cooperation among disparate providers prior to COVID-19.  Some of the benefits of that movement have been very apparent during the pandemic response, as providers have coordinated on sharing space, staff and equipment.  And new linkages have been formed to increase that coordination.  Antitrust advocates will tell you that this is not necessarily a good thing, as it could drive up the costs of healthcare in the long run.  But it could also have the opposite effect, by reducing redundancies and increasing efficiency system-wide.

Managed Care.  What does all this mean for payors?  Before the pandemic, there was already a movement toward increasing provider risk, traditionally the province of payors, and on a practical level that has only been increased by the pandemic, as providers have been called upon to provide more services as needed without any real focus on their bottom lines.  Many managed care providers have been extremely helpful, by reducing red tape and providing key influxes of funding where needed.  Some of this has occurred at the encouragement of regulators, but sometimes at the impetus of the payors themselves.  Those payors who view themselves less as just the financer of healthcare services and more as a partner to providers who is equally interested in patient health outcomes and provider sustainability are likely to come out of this stronger, but in general what impact the pandemic will have on payor-provider relations in the long run remains to be seen.

Disparities.  Disparities in access and outcomes based on race, ethnicity, or other differences have been a fact of the healthcare system for a long time.  A lot of people thought that the efforts to decrease the uninsured population that culminated in the Affordable Care Act would go a long way toward addressing those disparities, and they have.  But the pandemic has made it clear that significant disparities remain, as COVID-19 has disproportionately impacted communities of color, underscoring the fact that health insurance alone cannot solve the problem of access and outcomes.  Another example of the disparities highlighted by the pandemic relates to the disability community, who in many cases cannot simply replace the services they need with a telehealth alternative.  The long-term impacts of reductions in their services, and how the system will respond, remain to be seen.

Primacy of Public Health Law.  From a healthcare policy point of view, one of those most fundamental changes wrought by COVID-19 might be the increased focus on public health law generally.  The government’s role in ensuring public health is getting more attention now than it has since the early part of the 20th century.  The scope of the government’s power to compel individual behavior in order to protect public health has unquestionably been key toward curbing the spread of the disease.  However, now that the peak of the crisis has passed in many places, there is an increased focus on what the outer limits of those powers might be.  Questions like mandatory vaccination (already a hot button issue after the recent measles epidemic) and data privacy and its relationship to contact tracing are likely to receive significant attention in the months and years to come.  But the importance of public health concerns – not only for public health law itself, but also for essentially every other human interaction – is undisputed.

All of these issues remain in flux, and will for the foreseeable future.  But like any crisis, COVID-19 has taught us some lessons that, if heeded, will result in a better, stronger system in the future.  Correctly identifying where the trends are pointing, and getting out ahead of them, will clearly give some stakeholders a competitive advantage – and leave others behind.

  • Related Practice Areas: Healthcare, New York State Regulatory & Government Relations
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