By Jeff Overley

Law360 (May 8, 2020, 6:04 PM EDT) -- In this edition of Coronavirus Q&A, a head lawyer for the influential Greater New York Hospital Association discusses what the pandemic looks like now in the U.S. epicenter of COVID-19, top legislative goals for beleaguered health care providers and her expectations for inevitable litigation in the aftermath.

Laura Alfredo, one of two general counsel at the powerhouse trade group, shared her perspective as part of a series of interviews Law360 is conducting with prominent lawyers about the legal, regulatory and business fallout of the coronavirus crisis.

The GNYHA represents about 160 hospitals and health systems, most of them in New York, New Jersey and Connecticut. It has consistently ranked at or near the top of lobbying spenders in the Empire State, shelling out nearly $3.7 million in 2018 and almost $2.9 million in 2017, according to the state's most recent disclosure reports.

This interview has been edited for length and clarity.

How would you characterize where your member hospitals are at in dealing with the pandemic?

They are still very much in the thick of things, but it is safe to say the surge is behind us. It peaked in mid-April and plateaued for several days thereafter. And now what we're seeing is that while the run-up to the peak was fairly steep, the tailing out of that surge has been far more gradual.

And so, what they're all really managing are still large numbers of COVID patients admitted — many, many of whom are in the ICUs. And still very much taking care of those patients, some of whom have very intensive needs.

What are you most focused on in terms of work for your members?

What we've been transitioning to over the last week or so is really starting to think about how we resume different procedures, and we are choosing our words very carefully. There's been a lot of talk about the resumption of elective procedures. [Gov. Andrew Cuomo] had issued a directive prohibiting elective procedures, and he very recently issued a directive on resuming elective procedures in certain counties and certain hospitals. But the conditions for that resumption are very narrow.

And so what we've been [focusing] on is how we work with the state, primarily, to allow for the resumption of procedures that really should not be fairly thought of as elective, but as deferred. In that bucket is included a lot of procedures that are medically necessary. They're either urgent or approaching a level of urgency that makes it really important that they be restarted.

We need to do that in a way that maintains bed capacity, that maintains the health care infrastructure in the event of a second surge, which we're all committed to avoiding but understand is a real possibility as the broader economy reopens. And so we've been spending a lot of time thinking about, "What is the best plan for that?" The last thing that anybody wants is to create a second group of COVID victims in the form of people whose non-COVID care has been deferred for too long. So that's really the focus of our work right now.

With respect to the reopening conditions, is your focus on reducing the number of procedures that are viewed as elective?

No. What we're really focused on is figuring out, with the state obviously, workable criteria for allowing deferred procedures to restart. And what we think is the best plan would be to leave, to as large an extent as possible, the discretion for how to prioritize those procedures and decide what is urgent, what is semi-urgent, what is truly elective, up to the clinicians and their patients.

It's really more about what conditions do we need to see on the ground in terms of the virus, as well as what do we need to demonstrate in terms of our maintaining excess capacity in order to be able to resume deferred procedures.

The conditions talk about having a certain downward trend in cases or a certain number of cases, for example, before you can resume. Do you think those are too restrictive?

We completely share the governor's concern about avoiding a second surge. Nobody wants to go back to where we were two or three weeks ago. It was heartbreaking and intense and horrible.

We think that it's right to start with the criteria that the governor has put forth, and it's my understanding that the state is watching and evaluating how that plays out, along with the waiver process that they recently put into place. But we think that as we go forward over the next number of days and weeks, it will be appropriate to revisit those criteria, and that's what we're working on.

What types of litigation related to COVID-19 are your members concerned about?

One thing that we are very, very proud of is that pretty early on in this emergency, we crafted and advocated for limited liability legislation — immunity legislation — that was passed as part of the budget. The governor signed it, and it provides broad immunity for claims that may arise out of acts and omissions in the course of responding to the emergency.

I think that everybody recognizes that what hospitals and other entities and health care professionals were asked to do in early March was unprecedented and extremely challenging. I mean, our members were asked to increase their bed capacity — first by 50%, then by 100%. Having to redeploy professionals from settings where they were very comfortable working into new settings so that they could attend to the surge of COVID patients. Bringing in professionals from out of state and from retirement. So the situation was really incredible.

And they were asked to do it, they were directed to do it, and they did it. And they met the demands of the surge, and we can now say at least that phase of this emergency is behind us. And we thought, and continue to think, that it would be a real sin for somebody a year or two from now to look back, with the benefit of hindsight, and criticize decisions that were made or actions that were taken under those circumstances.

Hopefully, we'll be in a situation where COVID is a distant memory at that point. But still, we can't forget what we asked these professionals to do. And we did not want them to be left exposed. We hope that our members are less concerned about potential litigation related to COVID because of the protections of that legislation.

But we're also realistic. This is New York City. It's a litigious environment. We fully expect the limits of that legislation to be tested, and that will have to be sorted out in the courts.

I'm not sure that [hospitals] are at the point yet in dealing with the emergency where they have the luxury of worrying about litigation, but they are certainly cognizant of the environment in which they operate, particularly downstate, and understand that there will likely be litigation that arises out of the emergency. But it's really not the focus right now. The focus right now is continuing to take care of the patients and make sure that we don't do anything that sets us up for a second surge.

What are the most important things that state policymakers could do for your members right now?

One thing that is clear is that the waivers [of certain health care regulations] that the governor has issued just on a rolling basis, and at times on a daily basis, since early March have been very helpful to facilitate the building of the surge capacity that I mentioned earlier. A lot of the waivers allowed hospitals to augment staff in the way that I described.

It's really important that those waivers, the bulk of them, stay in place for the foreseeable future. They have been extended already, and we really need that to continue. I think they understand that very well — that those flexibilities need to stay in place because we need the ability to pivot and be nimble.

Also, what this crisis has taught us is that some of the regulations that we've had on the books for decades — that we've all lived with and maybe griped about — really truly don't have much value. And so the longer-term discussion is, "How do we make permanent some of these waivers?" Our health care system actually has worked better without those constraints. Once we figure out the plan for resuming services and getting back to some level of normality, we really do need to figure out with the state how we can turn some of those waivers into permanent flexibilities.

Is there anything you'd single out as having been proven unnecessary?

The most obvious set of waivers, and this goes to both state and federal requirements, have to do with the whole area of telehealth. I think that we've learned together that telehealth is not only not something to be afraid of, but is actually extremely useful. Certain assumptions that many of us have made about the usefulness of it, and whether people would embrace it, have been demonstrated to be overcautious.

Anything else at the federal level that would be helpful?

The biggest thing on the federal level is money [for] the hospitals in New York state, as well as all of our members in the states in which we represent hospitals, which goes beyond New York. And the hospitals in New York City, in particular, have just incurred tremendous costs and lost revenue as a result of the emergency.

That can really only be addressed the federal level, and my organization is working very hard to make sure that it does get addressed in an appropriate way. That's the primary task with our federal partners.

--Editing by Jill Coffey.

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