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Hospital overcrowding: Where are we now in a post-pandemic world, 15 years after the enactment of the Affordable Care Act? 

Welcome to Redefining Health Law, brought to you by the law firm of Parker, Hudson, Rainer & Dobbs, LLP, a boutique law firm with offices in Atlanta, Chicago, and Tallahassee. Your host for this podcast is Tara Ravi, a healthcare partner with prior work experience in both clinical research and patient care delivery.

She is an adjunct professor at the Emory School of Law, where she teaches corporate health law. Tara leverages her past work experience in the healthcare industry to advise healthcare organizations facing growth-related challenges. Although Tara is a partner in the law firm of Parker Hudson, the views expressed in this podcast are Tara's personal views, and not the views of the firm or any of the firm's clients and are not intended to be legal advice. We hope you enjoy this podcast.

Hi there, and welcome to the inaugural episode of Redefining Health Law. I'm Tara Ravi, and I'm thrilled you're here to join us. Today we start with the decade-long question of the crowded hospital, which begins our deep dive into the healthcare life cycle, beginning with hospital care, then transitioning to post-acute care and circling all the way back to chronic care management. On a personal note, healthcare delivery is probably the main reason that I applied to law school back in the mid-2000s. At the time, I had just graduated from college and was a neurology research assistant at Emory University, spending Tuesdays and Thursdays at Grady Hospital, the public hospital for the City of Atlanta.

This was a couple years before the enactment of Obamacare, which among other things, focused on preventative care and regular doctor's appointments. I bring this memory up because for many reasons, it seems like in the post-COVID era, we have somehow landed back in a similar place, back in pre Affordable Care Act times.

Okay, so let's get into it. Since the pandemic, many of our Georgia and Florida healthcare system clients have had patient volumes at an all-time high, with them running at capacity or close to it on a regular basis. And when a hospital is full patients continue to come to the hospital through the emergency department in part because of EMTALA, a federal statute titled the Emergency Medical Treatment and Labor Act, which ensures public access to emergency services regardless of ability to pay. So yes, the ED continues to be used as a safety net. We still have over 27 million uninsured. Certain states are affected more than others, but Georgia and Florida are seeing both a steep rise in uninsured patients.

On a more positive note, Georgia is experiencing a growing population as people move from other states to enjoy our weather, scenery, and cost of living. Some quoted statistics include the following. Georgia has exceeded the 11 million population mark in 2023. Yay for economic growth! Boo for traffic.

Notably, the South emerged as a driving force behind the nation's growth, contributing to 87 percent of the increase in 2023. Texas, Florida, North Carolina, and Georgia had the most growth in that order between 2022 and 2023. The growth in the South was primarily fueled by migration patterns, with over 700,0000 people added through net domestic migration, and nearly 500,000 through net international migration.

And significantly, unlike other regions, the South maintained consistent population growth even during the COVID-19 pandemic. The Wall Street Journal also recently reported on the influx of retirees flooding into the Georgia mountains, transforming the area into a bustling retirement haven. Since the pandemic, the population has grown in Georgia by 3.8 percent more than six times the national average. Add to that, the U.S. has also an aging population. This was a trend that was predicted during the enactment of Obamacare, and now we are seeing the rise in elderly patients requiring post-acute and home care. At the same time, due in part to reimbursement changes, we are also seeing fewer nursing home beds.

There are fewer rehab beds, and there are fewer psychiatric beds. After the pandemic, we're also seeing elderly who don't live near their families and want to remain in their homes to receive care for as long as possible. This concept has been termed aging independently. This has been exacerbated by the domestic migration patterns I just discussed.

Another contributing factor is that patient acuity is high and growing even higher, which results in patients staying in inpatient beds even longer. This is potentially caused by people delaying care during the pandemic and simply delaying care generally. We are also seeing population growth in smaller cities and rural areas and an increased need for trauma services.

Add to that, there is a marked increase in behavioral health patients that enter through the emergency department and may be held longer than needed until an appropriate discharge plan is possible. This leads into the larger issue of difficult discharges. A difficult discharge is a term used for patients who lack appropriate post-care options.

On average, a hospital, depending on its size, may have over 10 percent of its inpatients no longer needing acute care but remaining in the hospital because there is no safe discharge plan available. For example, the patient may have insufficient housing or family caretakers and/or limited financial resources to access other options such as private duty nursing and supportive care.

Alternatively, there may not be space available in a post-acute care setting, such as a skilled nursing facility or the nearby post-acute care facilities are not willing to take on a particular patient because of reimbursement disincentives. We will focus more on these issues in our next episode, which describes hospital relationships with post-acute care providers.

As populations grow in rural areas, larger regional hospitals become the safety net for rural hospitals that depend on them to transfer patients requiring higher level of care. This is worsening the instability of smaller rural healthcare providers, which can create a backlog for the larger regional hospitals.

Another post-COVID effect is healthcare workforce shortages. Provider burnout occurred during and after the pandemic, but also the increase in patient volumes required more physician and healthcare staffing in rural areas, where those providers likely don't live. During the pandemic, we saw health systems rely on expensive travel nurses and other traveling providers.

During the pandemic, and even now, providers were setting up mobile homes and RVs and sometimes converting valuable inpatient space to allow these providers to stay nearby to provide services. To demonstrate the domino effect, operating room personnel shortages can cause a backup in the inpatient room availability because inpatients will wait longer to receive necessary surgeries, which consequently delays the patient's discharge.

So, what happens when the ED is too crowded with patients needing an inpatient bed? What's patient boarding? Patient boarding is when a patient remains in the emergency department, even after a disposition has been made in terms of what their care should be, sometimes even for days and months and weeks.

When patient boarding occurs, the whole system backs up. The hospital just doesn't have the physical space. So we find ourselves literally going into the waiting rooms to take care of patients or taking care of patients in the hallway.

Now that we've laid out some of the post-pandemic issues, what are some of the short-term fixes? Well, patient boarding is not ideal, and it creates compliance and regulatory issues as well as patient care issues. One option is the adaptive reuse of healthcare spaces, which refers to the process of reusing an existing building for a purpose other than which it was originally built for, or designed for.

It is also known as recycling and conversion. A quick shout-out that I'll be publishing a white paper focusing on the adaptive reuse of healthcare spaces with the talented folks at Perkins Will that focuses on these similar issues as well as the regulatory hurdles involved. That will be available in early fall of this year (2024).

Okay, back to the topic. Clients are rushing to convert non-inpatient spaces to inpatient spaces within the hospital. One example is the conversion of private rooms to semi-private rooms, which occurred during the COVID waiver period. Another example is the conversion of observation beds to inpatient beds that can be flipped back and forth.

These options, however, are wrought with regulatory requirements including state certificate of need requirements, state licensure requirements, and healthcare-related building code requirements that also tie into the Medicare and Medicaid requirements. We will examine these requirements in more detail in a future episode, as this introductory episode is intended to lay out the bigger issues and how they play against each other.

Mental health flex spaces are particularly significant given the large uptick in mental health patients and the related difficult discharge issues. Other short-term fixes include addressing staffing issues. Rural hospitals have sought out anesthesia hospitalists, ER trauma, and critical care physicians, and subsidies for physician recruitment have increased as well as recruitment subsidy activity.

Providers need to be mindful of Stark Law compliance, specifically when negotiating these agreements with local clinical practices. Each state may vary in its Certificate of Need issues in crafting these short-term solutions just described. And as I mentioned, there are regulatory licensure issues for flex spaces including Medicare, Medicaid, and Accreditation Survey issues.

So what are some of the long-term fixes? The most obvious would be to construct newer, bigger hospitals with more inpatient space, observation rooms, and operating spaces, specifically hospitals that can be expanded over time as volumes or patient acuity increases. Right now, Georgia ranks fifth in healthcare construction behind New York, Texas, California, and Virginia. So, yay, Georgia!

The Atlanta urban skyline has seen four major hospital construction projects. And as you drive out of Atlanta, east or west, towards the mountains, you will see new health parks and senior care centers popping up. Although our state is privileged that hospital construction is active, the completion of a project takes many years, extensive financial resources, and incurs expensive regulatory hurdles.

Recent changes to the Georgia Certificate of Need rules are aimed to alleviate some of those hurdles. The bill would now let new hospitals to be built in counties with less than 50,000 residents, as long as they agree to provide a certain amount of charity care, join the statewide trauma system, and provide psychiatric services.

The new bill would also remove dollar caps on how much existing hospitals can spend on buildings or equipment, as long as they're not offering new services. And make it easier to transfer beds between campuses within a 15-mile radius or move and relocate the hospital within a 5-mile radius, which used to be a 3-mile radius.

Intermediate fixes may also include the federal hospital at-home programs, arrangements with post-acute care providers to intake difficult discharges, including relationships with inpatient psych facilities, skilled nursing facilities, long-term acute care hospitals, and inpatient rehabilitation facilities.

We will examine hospital relationships with post-acute care providers in our next episode as we lay out the three major themes in this podcast generally: the crowded hospital, post-acute care relationships with crowded hospitals, and a refocus on chronic care management. The bottom line is that with all the changes in healthcare since the pandemic, healthcare delivery has become even more difficult to navigate as the issues become more complicated and the legal framework remains slow to change.

This podcast will analyze these issues in more detail, describe how the laws can be used to effectuate some operational needs, and also advocate in areas that certain laws should be revised or changed to account for changing circumstances. We hope you enjoyed this first episode. Thanks again for listening to Redefining Health Law.

If you haven't already, I invite you to subscribe on your favorite podcast player so you won't miss an episode. And of course, if you have any topics you'd like to hear discussed, please don't hesitate to email us at

We would love to hear from you. Thanks for listening. Until next time, I'm Tara Ravi.

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