Next Steps, Difficult Questions

Over the past few months the State of Michigan along with the world has been stricken by a pandemic not seen for the last 100 plus years. Throughout the last few months the learning curve has been steep while the best medical and scientific minds have struggled to learn everything possible about the disease.

In Michigan at the end of May there had been nearly 58,000 cases and more than 5500 deaths due to Covid-19.[1] It is likely we will find out that even more people have had the virus but never knew it. The shelter in place, social distancing, masking and closing of the economy were widely accepted as the only anecdotes available in the early days. The impact on those anecdotes will likely result in the State unemployment numbers being in the millions. Throughout the pandemic, reliance on the science and the data became the lynch pins for actions taken to save lives. And while every expert does not believe it is over, imagine the stress on the State’s citizens, economy and its health care system if the vast majority of the symptoms were not “mild.”

As more and more becomes known on how to limit exposure, protect people and eventually cope with Covid-19 and future illnesses, the next steps appear to be the most critical. However, those steps also pose some difficult questions as the State seeks to avoid a second or continual seasonal Covid spike and be prepared for future even more serious pandemic.

Currently there is no vaccine but if we had a vaccine would everyone get it? Less than half of the country gets the flu vaccine putting older citizens at risk.[2] More than 30% of adults over age 65 never get the pneumonia vaccine for an affliction that kills nearly 50,000 each year in the US.[3] Given the impact of Covid-19 on people’s lives and the State’s economy is it a viable position that everyone not allergic get the vaccine when it becomes safely available? How will employers whose businesses have suffered immensely react if their employees eschew the vaccine? Required inoculation will be controversial and not popular with some citing privacy and other rights. Can mandated social responsibility not to carry or infect others override personal choice? These will be difficult legal and even constitutional questions to answer when lives hang in the balance.

Similarly, is it in the State’s interest, using the same science and data sources used to flatten the curve, that the vaccine mandate include the aforementioned flu and pneumonia vaccines that are already in existence? According to the CDC flu vaccinated adults 18-49 years of age (carriers) as well as adults 65 years of age and older (at-risk) hospitalized from flu were 37% less likely to be admitted to the Intensive Care Units than those who were not vaccinated.[4] Saving the space in the ICUs next fall and winter may be even more critical than it was in March and April this year. Finally, should these mandates extend eliminating (non-allergic) exemptions for children’s vaccines as well? Using the same CDC data, these vaccines have a proven track record of protecting against infectious diseases that once killed or harmed many infants, children, and adults.[5] Given what has happened worldwide what are the legal outcomes and political implications if Michigan chose to eliminate carriers of any age spreading deadly diseases that attack those who are the most susceptible?

While discussing ICU space, questions will arise as to whether to continue the moratorium on the Certificate of Need. Flattening the curve and closing the State’s businesses was principally necessary to keep from overwhelming the State’s health care system. The Certificate of Need laws effectively stopped two health systems from building new hospitals in northern Oakland County within the past ten years. There is little doubt those facilities would have saved lives. Currently the US has less than 3 beds per 1,000 people while a place like South Korea has more than 12 per 1,000.[6] The “need” for more health care capacity is now painfully “certified” but likely will require some level of State co-funding to be viable. In exchange for removing that expansion barrier and for State funding, health systems that wish to expand likely be prevented from abandoning older facilities but rather, in partnership with the State, keep those facilities functional to accommodate future pandemic and other health crisis victims.

The Certificate of Need and other restrictions also impair the private development of any number of critical health care facilities (surgical centers, catheter labs, etc.) that could be strategically used to socially distance and segregate at-risk patients. A comprehensive pandemic plan using private medical facilities would have allowed for non Covid-19 patients with manageable conditions access to medical treatment during the height of the pandemic. Should the State let the market for surgical facilities and other expanded hospital/private joint ventures amongst the health systems and health care providers flourish with the proviso that when needed they will be part of a pandemic plan to segregate patients as needed. Rather than prohibit these new facilities, the current State CON resources could be refocused for ensuring new facilities be built and mandatorily equipped for flexibility as part of a comprehensive plan to fight the next more deadly virus.

Finally, Michigan’s citizens need to be healthier. The data and the science are very clear about the virus ‘choice of victims. Certainly those older citizens with underlying conditions like hypertension, lung and kidney disease were at the top of the list.[7] However, the age range of 50-59 had the highest number of confirmed cases to date and the single most common trait of those with severe symptoms in that range was obesity.[8] Should the State allow health insurance providers in the State to sell health insurance in this state without a complete no cost, non-deductible weight management program being offered to all its participants? State income tax credits and deductions for health & wellness facilities could be in the forefront of any health incentive plan whose estimated costs pale in comparison to the health care benefits paid out in the last few months. Its seems likely that better health outcomes and reduced healthcare costs would result from healthcare plans that cover proven diabetes prevention plans and are hyper accessible in those areas of the State where COVID-19 hit the hardest. Again, these straight forward healthcare solutions raise many complicated policy and political issues.

Similar to the outbreak of Covid-19 there are lots of questions and few answers as to the next steps. While deadly and economically destructive, Covid-19 has raised a number of difficult issues for those viewing it and it aftermath as a wake call. The questions raised and the solutions chosen may ensure that Covid-19 was the crucible for decisions to avoid a far more serious health disaster in the future.

Originally published in Healthcare Michigan, June 2020.

About the Author:

Mark Wilson is a Member in the firm’s Troy office. He can be reached at 248.433.7581 or mwilson@dickinsonwright.com.