John Blomster: Welcome to ºìÌÒÊÓƵ, a podcast where we explore today's biggest legal topics with distinguished guests of the law school and experts from around the globe. I'm John Blomster. And today we're speaking with Taya Briley, Executive Vice President and General Counsel of the Washington State Hospital Association. Representing all 114 community hospitals in Washington, the WSHA works to improve the delivery quality, accessibility and affordability of health care for communities across the state. As Executive Vice President and General Counsel, Taya is responsible for operational performance, serves as WSHA’s corporate counsel and oversees governance for the organization. From the moment COVID-19 gained a foothold in Washington, Taya has been a key leader in the organization's response efforts to the myriad legal issues arising day by day, hour by hour. She joined ºìÌÒÊÓƵ as a special guest lecturer for the law schools Lawyering in the Time of COVID-19 series to share what is an intense story that is obviously still being written. And we're here to learn more. So, Taya, thank you very much for joining us.
Taya Briley: I'm really glad to be with you.
JB: So, as you were watching what was happening in China, what were your initial thoughts as the first US cases emerged in Washington?
TB: Yeah, I think like everyone, I was really hoping that it wasn't going to come here. And at the same time, I was aware that our own State Department of Health was doing all that it could to anticipate the upcoming needs, including standing up a state Incident Command Center, and knowing that our state Department of Health was preparing and so concerned, and really sort of put us at the hospital association on alert about what may be coming next. And of course, we had the first case in the country here, which gave us some early warnings. We were off and running once the virus hit at the nursing home in Kirkland and subsequently our hospitals.
JB: So, can you tell us just a bit generally about your role as the pandemic started to unfold?
TB: Yeah. Initially, I think the thing that I was thinking about the most was what were hospitals going to need legally to be able to mount a full response. And as we talked about earlier, Washington state was really on the forefront of this, just like we were hoping that the virus was not going to get here in Washington state, I think as things were starting to wrap up in Washington state, the rest of the country was hoping that it would stay contained in Washington and California. And so gaining the attention of folks at the federal level, in particular, about the need for a declaration of emergency, both from the Secretary of Health and Human Services and from the president of the United States that would allow for waivers to take place, was a little bit challenging. But as we were waiting for those pieces to happen, we were able to start drafting the waivers that we would like to have, and then were subsequently able to send our request for those waivers and just as soon as we were able to get the necessary declarations of emergency. And so that was our number one focus out of the gates.
JB: One of the points that you make is that law doesn't happen in isolation, in a vacuum, what organizations did you reach out to partner with, as you were first starting to develop the response efforts?
TB: Yes, it is so true. And you know, as I think about law students, beginning their careers, I think this is probably one of the most things that I could emphasize is that building partnerships and relationships is so important. And so as we were beginning our work, one of the people that I was talking to almost constantly was the executive director of the Northwest healthcare Response Network. And her job is to help, and the network's job, is to help coordinate the response of the hospitals on the western side of the state and emergencies. And the dialogue that was going on was frequent and was really important to understanding the needs and how we would be responding. The State Department of Health was absolutely critical. They have played really an outsized role in terms of helping to support the response statewide, and of course, the governor's office as well. So, this, you know, those were some of the folks that we were in communication with right out of the gates. And then the other groups that I would speak to are all of the advocacy groups for different professions like the Medical Association, the nursing union, all of those folks who represent health care providers across the state who were so integral to this response and the communication and coordination amongst those groups continues to this day. Right now, we have stakeholder groups, going on a variety of topics that we are relying on as we head into the fall in anticipated search and virus cases.
JB: So, in terms of the first bits of lawyering that you had to tackle, can you tell me a little bit about what that process was like in terms of the waivers and then in terms of subsequent measures that you were taking?
TB: The process of getting the waivers drafted and the requests submitted and getting the waivers granted was a bit frenetic at first, knowing that we needed to move just as quickly as we possibly could. And again, this comes back to sort of the emphasis on relationships. The other place at the time that COVID was really hot was California. And I reached out to my counterpart in California, and together, we spent basically you know, two very long days over a weekend putting together the list of laws that we would need, waived or modified in order to allow the hospitals to do things like take care of emergency patients outside of the four walls of an emergency department or be able to conduct telehealth visits, or be able to operate pharmacy services outside of the traditional patient care unit and be able to have critical access hospitals, which are small rural hospitals and be able to have patients within them that exceed 25. Usually, there's a 25-bed limit for critical access hospitals. So, getting all of those laws waived or flexibility in place was so important.
And so a process of getting that in place was pretty intensive, but the reward was great, in that we were able to get response back from the federal government quite quickly. And it formed the basis for, we believe, formed the basis for subsequent nationwide blanket waivers that were granted to all of the states. So, that was very satisfying.
As we kind of moved on from that one of the things that really was of great concern to everyone in our state, the health of the healthcare system and public health officials as well, was the number of patients that were flooding into hospital emergency departments with COVID. So, one of the things that was issued by the governor was a proclamation limiting nonurgent procedures. So, if a patient wasn't going to be harmed due to a procedure being delayed for the next three months, then that procedure needed to be delayed. And it had the intended effect of freeing up space within our hospitals. But it had the consequence of really limiting care for folks who need care. You know, COVID isn't the only health care concern out there in the community. People have a lot of ongoing care needs, you know, including routine diabetic care, or pulmonary care or cardiac care. And so hospitals were really in the position of needing to figure out what could be delayed and what needed to be seen urgently, some things are really obvious. And some things are maybe a little bit less obvious. And those things that were on the cusp, were really concerning. So, for example, during that period of time, the number of cancer diagnoses in the state went down because there wasn't routine cancer screening going on, because it was deemed non urgent in many cases. And so just because the number of positive cancer screens are going down, doesn't mean cancer is going away. So, we know that for those folks who experienced late cancer diagnosis were gonna have some concerns down the road, not only for their well-being, but for the healthcare providers that were having to make those calls for potential liability concerns. And so that's something that we are actively in conversations with the stakeholders and lawmakers about is what's the right balance to strike in terms of providing some protection to those health care providers who were having to operate under those really challenging circumstances and still recognizing, you know, the needs of the patients.
JB: Is there any kind of legal framework that you can apply to that kind of issue in terms of the nonurgent care procedures? Or are you really just kind of building the plane in the air because the situation is so unprecedented?
TB: Yeah, that is such a good question. And it's one that we are actively struggling with right now. In the state, there is a law that speaks to the standard of care, and that law in theory has some flexibility to it. Our concern is that the law that's in place speaks to the role of the health care provider in same or similar circumstances. And we know that in medical malpractice litigation often we rely on experts to be able to articulate what a provider would have done under those same or similar circumstances. I think it will be really hard to find an expert who could credibly opine on what these same or similar circumstances are, knowing that the situation on the ground was changing day by day here in terms of what resources were available, in terms of what staff were available and what staff were needing to flex beyond their traditional scope of practice. And being able to find a way to interpret this nonurgent procedures proclamation in a way that made sense for the particular patient in front of the practitioner. Having an expert opine on those things is really challenging. So, one of the things we at the hospital association are doing is engaging with, as I said, stakeholders and lawmakers about advancing some legislation in the next legislative session, which takes that same law but for COVID purposes, speaks to taking into account these challenging circumstances, including whether the health care providers were relying on directives from the government in making care decisions for their patients.
JB: In terms of lawyering on the fly for you, personally, how do you manage that? And what is your day to day look like? I'm imagining it's not the usual nine to five, these days.
TB: It has not been the usual nine to five, it's been a pretty intense few months. And one of the things we've been trying to do honestly, over the last couple of weeks, as things have been a little bit slower this summer is just carve out time to take a little bit of a break. But back to your question. One of the things that has served me best over these last few months is not feeling like I need to have an answer to everything right away. There were times during this response, where I felt quite confident in the things that needed to happen next. There have been times when I was really unsure about what needed to happen next. And at that point, you know, back to the point about relationships, I am fortunate to have built a number of relationships over my time here practicing in Washington state, including at the School of Law, and at one point, you know, reached back out to one of my law school professors to consult on governors’ powers as we were navigating some of the early days of the emergency. And so you know, from there, it's been everything from, you know, talking to physicians about—infectious disease physicians—about you know, what's appropriate personal protective protocol, and how to we flex given that we've got limited PPE to reaching out to insurance brokers for guidance on aviation insurance, when we decided that we were going to have volunteer pilots transport PPE across our state in order to get it to small rural facilities that needed it quickly. So, it has really been a matter of staying humble and not being afraid to help. And one of the things that I think has been a silver lining of this pandemic is it has given folks an opportunity to really shine in terms of their generosity of sharing their knowledge, and just overall willingness to help.
JB: Speaking of all of these diverse hats that you have to wear, and in terms of these response efforts, one of the things that you shared is the hospital association became a physical importer of international goods. Did you ever think that that was something that you were going to be a part of? How did that come about?
TB: So, I never would have expected that the hospital association would be an importer of goods from another country. And it was an opportunity to rely on some of my old contracts training to figure out how to find legal resources that could help interpret contracts in Chinese. We were dealing with tariffs and we were dealing with all sorts of interesting issues, including the potential for our own federal government to confiscate PPE before it was authorized to come into our own state for being exported to our hospitals. So, it was a lot to navigate. And, again, it was a matter of reaching out to others who may have some expertise that I didn't have. And also, you know, just being willing, from a practical standpoint, to figure out where you want to spend your energy. Trying to get particular representative representations and warranties on PP, when you can hardly get your hands on it to start with, you know, at the crux of this pandemic was not where we were going to spend our time. We got the PPE in and then did some tests on it to make sure that it, you know, for a mask, for example, had all three layers that you know, it was passing the test with respect to having liquid applied to it, but we were not going to try and spend a whole bunch of time negotiating on terms that we knew we wouldn't be able to get. So, it really was a matter of being creative and flexible, and figuring out where we needed to put our energy.
JB: One of what I can imagine is the most challenging issues to talk about and to figure out is allocation of care as hospitals become increasingly impacted. This is something that you spoke about. How do you begin to approach the idea of allocation of care and what legal issues have to be considered?
TB: Yeah, the prospect of what we call crisis standards of care, which is when there are not enough resources and we think of resources in terms of space, staff and supplies, sort of in those three buckets, that care needs to be allocated, because there's not enough to go around to serve all patients.
We wanted to be fully prepared for this in our state for this eventuality. And so we were really fortunate that we had a group who had been working on this issue for a number of years and had a really strong set of guidelines ready to go. I would venture to say that we were, if not the best position, one of the best positioned in the nation to be able to address this. And at one point, I had many, many states knocking on my door to get access to the guidelines that had been developed here in Washington state. One of the things that we did early on in our state that I am incredibly grateful for is the State Department of Health adopted these standards on a statewide basis, so that we don't have individual providers trying to figure out how to manage, you know, a resource scarcity on their own at whatever hospital, you know, in whatever area of Washington. Everyone has the same playbook, so to speak. This is really helpful in that, you know, it provides for the patients and for caregivers, some consistency, if we ever reached that point where we needed to actually go to these crisis standards, protocols to make sure they are not discriminatory against individuals with disabilities, for example.
JB: And just as a final question, is there something that you've learned whether personally or professionally over these past six months that you would want to pass on as advice or insights to law students?
TB: I think I would say two things. One, this has been an opportunity to really affirm that law has been just a great career for me. And I think it can be for anyone who wants to go into the profession and look for an opportunity to make a difference in the world. And two, again, it's been an amazing opportunity to work with lawyers and other members of the community that are really invested from a variety of different directions and a variety of different perspectives in making just as big of a difference as they can, a positive difference, in the lives of our fellow Washingtonians and community members. And so that has been really meaningful for me, and I hope it's something that students will think about as they're choosing their paths within law and within the legal profession.
JB: Taya Briley is Executive Vice President and General Counsel for the Washington State Hospital Association. She joined the law school this summer as a special guest lecturer for ºìÌÒÊÓƵ’s Lawyering in the Time of COVID-19 series and she is also a UW alumna. You can learn more about her work and the WSHA plus find additional resources over on our podcast page at law.uw.edu.
Taya, thank you very much for taking the time to speak with us today.
JB: Thank you for the opportunity.
