Restarting responsibly: A conversation with Sandra DiVarco, McDermott Will & Emery

Healthcare providers of all types are under pressure.

The pressure is financial and, in some cases, social and political, to restart elective procedures and get back to “normal” operations after COVID-19.

But there are risks to that process if it’s not handled well. In this conversation, Lauren McConville, partner at Jarrard Inc., and Sandra DiVarco, partner at McDermott Will & Emery, overlay some of the legal/regulatory and communications considerations hospitals and health systems need to mitigate risk and move quickly but responsibly.

Listen above and subscribe on Apple Podcasts, or read the transcript below.

Read the transcript

David Shifrin: Welcome to High Stakes. I’m David Shifrin. As always, please be sure to subscribe to the podcast on Apple Podcasts or wherever it’s most convenient for you. And today we are going to sort of overlay some of the legal and regulatory and communications issues that providers are facing right now when it comes to ramping up services that have been affected by the COVID-19 pandemic.

And we’ve got two great people to lead us through that. Sandra DiVarco is a partner at McDermott Will & Emery up in their Chicago office. Sandy is an ICU nurse who moved into law and specializes in health care transactions as well as a lot of strategy.

And we’ve also got Lauren McConville, who’s a partner here at Jarrard and the practice leader for our national academic health systems group.

And so today we’re talking about the reopening or the restart phase, whatever you want to call it. And healthcare providers right now are under significant pressure, certainly financially and I think in some cases, or a lot of cases, both kind of socially and politically, to bring mothballed services back online. So I’d love for you both to set the stage, kind of talk about the potential risks that that pressure can bring so that we can then think about how providers can move quickly yet thoughtfully.

So Lauren, we’ll go ahead and just start with you.

Lauren McConville:  Sure, David, thank you. You know, as I think about it, there are really three things that I’m watching my clients have to slow down and really concentrate on as they contemplate how they restart services in a responsible way, both for their providers and for the communities that they serve.

And the first, frankly, is making sure that we’ve got the processes in place to keep our teams at the bedside safe. That we’re very clear internally first about what those new processes are and why those safety guidelines are so important. I think that’s really the first step in ensuring that patients want to walk back through our doors, is that our providers, frankly, are feeling competent and safe about taking care of them.

You know, once we’re able to move beyond that and feel that sense of confidence in our ability to provide care, I think it’s really ensuring our leadership team is coordinated. There is no new normal. So you’ve got to have strong alignment across your leadership team around what’s changed, what are the sense of priorities, what service lines are opening first – and why – and the different implications that may be relevant for your particular system.

You know, you’ll hear Sandy talk a lot about the particular regulatory concerns or additional risks to keep in mind. You know, one risk from our vantage point that we’re very concerned about, frankly, is a reputational risk, which is if we as a system are ready to say we’re safe for patients, come on back and see us, there’s a great reputational risk if we are not able to deliver that safe place for both those that work for us and those that choose to come see us.

If a mistake is made or if we’ve got an uptake in cases have we really thought through the impact there for our systems. Sandy, I’d love to hear your thoughts. you know, I know there are enterprise wide ramifications as well as probably some increased liability things to consider, so I, I’d love to hear what you’re counseling others on.

Sandy DiVarco: Thanks Lauren. This is an area that is truly untrodden ground for all of us, right? And your note about, you know, taking a step back and hitting, if not stop because no one wants to stop, but pause so that you can be really contemplative about these things is incredibly important for all the reasons you outlined.

And picking up on that reputational risk piece and the fact that this is really an enterprise wide decision for all these healthcare clients. One thing that I fear is going by the wayside while administrators and leadership and everyone and clinicians are pushing ahead and trying to do the right thing by patients, employees and staff, is making sure that those NRR enterprise wide risks are really addressed and that your governance structure, your board of directors, your board of trustees is onboard with your plan.

This doesn’t mean that the board needs to make the plan or even that they necessarily need to approve the plan, but they should know what the organization is getting into and what the plan is. Because if it goes incredibly well, that’s great. They should know all about it. And if there are issues and hangups, they should know about those in advance so that they’re not surprised if suddenly, you know, St. Elsewhere is in the news for whatever reason, in relation to their reopening.

There should be buy-in at the clinical level. Incredibly important. The staff level to the extent you can get there with non-clinicians. And also with your governance structure, just to make sure that everyone is on the same page and aligned as they’re moving ahead with this important process.

Part of this which makes it so challenging for everyone is that – and you raise the issue – there is really no new normal. It’s developing every day. There’s something new, things are shifting and it’s very difficult for healthcare clients to…particularly large ones, frankly, to be incredibly nimble, which is really a skillset that everyone needs while this is happening. Because there are risks in reopening. There’s risks in not reopening. You identified them. We talked about them. There’s financial risks, reputational risks. There’s risks to doing it, whether you do it or not, you’re going to have issues. It’s a matter of identifying those issues, being comfortable with them and putting in place enough of a structure and guideposts so that everyone understands them and can try to mitigate them where you can.

LM: you know, Sandy, we couldn’t agree more on the board side for this reason as well: We know our board members are going to get those questions. They’re board members because they are influencers in our community, and so they have to understand our plan, frankly, so they can be our ambassadors and our supporters.

So, you know, when they’re asked by their neighbors, friends, and colleagues, “would you take your parent or your child back to the hospital for whatever reason?” We want them to be able to say yes, and to be able to share why they feel so supportive of the plan that a health system may have come up with. So I just think that’s so important to consider.

SD: Right? And it’s very easy sometimes to look past the fact that, as you said, the individuals on your governing board are there for a reason, usually, right? They’re there because they have a level of expertise of outreach abilities. So it is also incredibly possible that those are folks that can help contribute to some of the planning.

Again, not to bog down the process. There’s no time for that, but just to recognize that there are these resources and they can serve multiple purposes and trying to get this plan off the ground.

DS: So let’s get into some specifics here and really dig into what the concerns are for providers and very practically how they can mitigate those risks as we were talking about both from the legal side as well as the communication side, and just walk through the restart process, if you will.

SD: Sure. I mean, I think the baseline that we all need to start at and where healthcare clients are struggling a bit is looking at what can they do. So there’s so many sources of guidance and there’s so much differentiation as between States and localities. And then overlying that are things like CMS and their guidance on procedures. Different accrediting bodies and then different associations, you know, as among surgeons and nursing groups and others, there’s many different perspectives.

The main legal issue, of course, is making sure that within your state and locality, you’re not going above and beyond what it is you’re permitted to do.

And from a healthcare system or hospital or other provider perspective, that’s something if you’re, if it’s not clear, because sometimes it mostly isn’t and there’s some discretion in there. You’re going to want to talk to your internal or outside counsel just to make sure you got it right before you go ahead and sort of let everyone get going.

And that’s a really important baseline, although it may seem sort of fuzzy, it’s something that needs to be sorted out and that really sets the groundwork for what to do next. Phase one, we’re going to look at our delayed procedures. Phase two, we’re going to look at some other elective procedures. Helps you set that up as well.

And what ties back into that, once you know what you can do, is trying to recognize how you can do it. So in order to do procedures, you don’t just need a doctor and a nurse. You need a doctor, a nurse, a scheduler, a security guard. You need all the people that do the different parts of the work that lets healthcare operate. So that brings in the considerations on employee and patient logistics. And this is honestly, I think, far more challenging than letting physicians start to do procedures and making sure you have PPE. It’s a matter of making sure that you can get staff in the door safely and you can get patients in the door safely and deal with all the logistics that go with that.

DS: Lauren, as you think about this in terms of sort of what you can do and then how to do it, talk about very practically what that looks like from a communications perspective and what you need to be saying.

LM: In terms of, as you’re thinking about restarting services and what to communicate, it’s interesting. The message is significantly different than any message we would have counseled clients to share both internally or externally. Now the message is in the weeds, the sausage making the, what is your sterilization policy? How are you altering the setup of your waiting room? How are you altering how you’re scheduling? For consumers to feel comfortable coming back to healthcare, they’ve got to understand the changes we’re making to do things differently.

And your internal team physicians, nurses, respiratory therapists, have got to understand how their roles are shifting to really provide care safely and to keep them safe. So, you know, I think the message is two pronged: It’s both more detailed about those processes and procedures that that need to be implemented, and it’s also one that that really says our first commitment is safety. Safety for those who work for us, safety for those who choose to come through our doors. So I do think that that is where we really need to see our clients focused. Folks are still deciding whether or not to trust coming back for care.

You know, I think we’ve just got to recognize the real fear that’s out there and how we can modify that fear. We’re addressed that fear authentically. Because the answer is not to tell people, “Hey, it’s safe, trust us” if it’s not yet safe. And that’s where to Sandy’s point, it really first comes back to at a local level in your county, what is the current scenario and what can your health system be doing?

DS: That’s great. Thanks Lauren. So you talked about messaging around things that we would never have really been asked before. What’s your sterilization procedure? What does your waiting room look like? So it’s, it’s a reframing for health systems and Sandy, I’m curious to hear your thoughts on what those logistics, how you prepare for those logistics, how you put those procedures and protocols in place and structure them in a way that that is appropriate.

SD: Sure. It’s challenging. I mean, again, because no one has done this before and for so many things in life, both in law and medicine, there’s sort of precedent, right?

Nothing has been like COVID-19 before, so there is really no playbook here. And what we’re learning about the disease is shifting again, almost every day. So one of the things to take a step back is to look at, and this goes to what Lauren was saying, making sure that everyone’s comfortable. And to develop a process, not just the thing that you talk about. That’s something that’s actually documented in some form or fashion with the recognition that it’s going to shift and change.

And that helps not only everyone be on the same page about what needs to happen, you know, how are we going to screen employees coming in the door every day? Are you going to set things up a certain way? There’s many ways your systems can go about this. It’s just a matter of making sure that everyone knows what it is and has a clear understanding. So taking time to commit some of these things to writing and having a written process is going to help everyone understand and pressure test a bit better than just sort of conceptually discussing, okay, we’re going to make everyone safe.

You’ve got to be pretty specific about it and be prepared to demonstrate it. And the other benefit to having these plans and processes written down is, you know, as we go through some of the risks there’s always a risk of litigation. I mean, this is healthcare in America. This is how we unfortunately operate. But one of the things that is going to be asked is, well, what did you do and what was your process and how did you keep people safe, and having these things written down and documented is going to be incredibly important.

DS: Thanks. And so Lauren you’re talking about keeping good records and taking good notes so you can go back if questions, when questions are asked to say, this is what we were thinking and this is how we were approaching things, which is incredibly valuable. And I think also there’s value in taking those and sort of translating them and using them in the moment as well. Right? Being proactive. So it’s not just waiting for there to be a problem, but to say, here’s what we have. Here’s what we’re doing to try to sort of mitigate those risks from a communications perspective.

LM: Yeah. You know, we’re encouraging our clients to slow down and really articulate guiding principles that clarify how decision making is going to happen. Not only who’s involved, to your earlier question, David. But you know, what are the particular external data points we’re using, whether it be the World Health Organization, CDC, you know, County or state information that’s provided.

It’s just literally how are decisions going to be made and what is important to us as a system, whether that’s grounded in our values, or grounded in a religious commitment if it’s a religiously-affiliated system, that guides some of that decision making. Because I think it is useful to have agreed to and articulated before you get to the really hard decisions about what comes next. Especially frankly, if we find ourselves in a situation where we’ve seen systems open, a handful of service lines, we see a dramatic increase in cases, potentially a dramatic increase in hospitalizations, and we’ve got to begin to step back or hit the pause button on the expansion of care.

And so again, I think articulating what those stage gates are going to be ahead of time is important.

SD: And I think that makes a lot of sense because really restarting and reopening as I’ve described it and talking with clients, it’s really, it’s a ramp. It’s not a cliff. I mean, it’s not like suddenly you’re blowing through the doors and you’re going to be doing, you know, maybe cosmetic procedures.

There’s things that are just logical not to jump into until things are up and running and you’ve got a process and you are sure that you’ve got a good controls in place and you’re not seeing a big ramp up in, you know, infections and hospitalizations that are tied to your care. Those are the sorts of things that are incredibly important and again, it’s really tempting because many clinicians that I’ve been on the phone with are gangbusters. They’re ready to go. Not only for the financial reasons, but also they feel like they’ve been sitting aside while their patients need them and haven’t been able to do the things our patients need. So it’s really a matter of tapping on the brakes and just making sure that everyone acknowledges that, you know, this is what we’ve got to do.

And to your point, Lauren, on communication, having this sort of process, having these sorts of procedures is something that can even be articulated to your staff. That can be…advertised maybe the wrong word but make clear to your patients as they’re coming in the door. We have a plan. We’re going to follow the plan, and if things start to not look great, we’re going to change the plan so that there’s an understanding that this is not an all or nothing game.

It’s really something that’s going to be adaptive to the circumstances.

LM: You know, Sandy, I couldn’t agree more. And I think on the idea of being flexible, it’s not only important to be flexible, but frankly to communicate that flexibility. And so I’m thinking of counseling clients on explaining why they’ve chosen the service lines to open that they’ve chosen.

So, for moving forward with, cardiology, neurology and cancer, it’s because we believe helping patients with cancers and strokes and heart attacks is truly most pressing. It’s where we can add the greatest value for longterm health. And it’s probably the right next thing to explore versus a cosmetic procedure. Right?

I don’t know that we’ve seen a lot of clients come out of the gate, frankly and say, let me tell you about where we’re starting to provide care again, and why we think that element of care is so essential. So I think that could be something interesting to think about in the weeks to come, is helping our clients be more transparent about, let me tell you about what’s available and why right now and the different measures we’re using to evaluate what comes next.

SD: I agree. And I think there’s sort of two sides to that. There’s sort of the public and staff facing side of, you’re making sure everyone understands that this is a process. And then there’s also, you know, looking at it with my lawyer hat on too, to make sure that there’s an acknowledgement and it may be something that’s developed and maintained under privilege about here’s what our thresholds are going to be.

You know, the level of information that’s appropriate to share publicly and with your staff. And we need to be fairly transparent on all these things. But as far as sort of risk identification and mitigation, the other thing to be mindful of from the legal front is just making sure that where there’s privileged discussions occurring and you’re anticipating the risk of litigation or you’re making certain decisions based on the guidance of your counsel that that’s documented appropriately and not splashed up on a billboard. Although the derivative information from that council would be part of that overall communications plan. So it’s just looking at it both from the operational side and the legal side in protecting the interest of the organization needs to be part of it as well.

DS: Well, thanks to both of you. I guess I have kind of one question to wrap us up and try to pull all this together and it’s around, the term that we’re all using, I don’t know if anybody likes it, but the new normal, right? It’s not going to go back to the way things were. Like, life has changed and that goes for our industry and it goes for society.

And so through all of this change, we’ve seen massive disruption over the space of 60 days. how do we counsel our clients? And just think about continuing that change and not kind of slipping back to the way things were, and taking advantage of the opportunities that we have in front of us.

SD: Starting from a sort of a legal risk lens, I think the word I’ve been using in discussions with clients is vigilance, which sounds perhaps over the top, but I do think it’s going to be very tempting for people, particularly with something that you can’t see, like an infection like COVID-19 to start to wonder if maybe the first few weeks of reopening go well, if they really need to be doing all this stuff.

And you know, I’ve actually had a couple clients ask me, well, we’re going to do A, B, and C, when can we stop? and my answer is generally, I don’t know that you can. and there may come a time and maybe it’s when there is a vaccine or maybe there’s some other public health acknowledgement that this has faded away to a level that there can be some retrenchment.

But until then, there needs to be a vigilant attention to making sure that the parts of your plan that you’ve put in place for this new normal or the new abnormal, depending on your point of view, doesn’t slip and go by the wayside. And that’s something that’s going to be a big internal process. And it’s something that as this develops, there’s going to be regulations that come up around it.

And so there’s going to be a forced compliance for some of this because you know, the law just hasn’t kept up. We don’t know quite know where it’s going to land. And that’s something that everyone needs to keep in mind.

LM: You know, Sandy, I couldn’t agree more with all of that. Honestly, the only other point I’d emphasize is where we can right now, I think providing a sense of comfort to team members and to physicians about what’s not changing. You know, our commitment to communities. Our values. The want to serve our communities with excellence, to honor every voice.

I do think this is a time when folks need to hear that so many things have changed, but you know, our promise as caregivers to help those in need and to do so in a way that that feels like who we are as a system has not changed. And so I do think that’s an important message as we’re in these critical times, frankly, especially as these critical times continue far longer than anyone ever anticipated.

There’s just such a sense of utter exhaustion. I do think we’ve got to find the hope and the comfort that comes in connecting to the emotional reason why so many of our folks chose to go into healthcare instead of other industries to begin their career. Sandy covered all the great points on other things to consider. but I do think at this time we don’t want to lose track of why people literally chose to touch others in the first place.

SD: I agree this is really an unprecedented time as far as the credibility of healthcare and the way that healthcare providers, both the individual professionals and even the hospitals, really quickly stepped up to care for patients and to totally change the way they operate to do so.

I think building on that and interweaving the regulatory and legal parts is what’s going to be incredibly important.

DS: Well, it’s great thoughts. Thank you so much to both of you. I think that’s just a great place to wrap things up. So Sandy DiVarco, thank you for your time. Everyone definitely check out All kinds of fantastic COVID-19 and many other resources available on McDermott Will & Emery’s site and you can learn more about Sandy and her background.

And of course, Lauren, thank you for putting all this together. And for our materials and we look forward to continuing the conversation, kind of seeing how the restart goes and maybe touching base in a couple of months to see what we got right and what we need to be thinking about in the future.

SM: My pleasure, David. Thank you, Sandy. Thanks for the partnership. We always really value working alongside McDermott Will & Emery.

SD: Happy to do it and it will definitely be interesting to see where this goes.

David Shifrin