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Finding Opportunity in Adversity: Optimism for the Construction Industry

Client Alert

It is said that opportunity hides itself in adversity, and so, for those industry stakeholders still struggling with the impacts of the pandemic, it is fair to ask: what opportunities has the COVID-19 pandemic created within the construction industry?

Opportunities to Collaborate are at an All-Time High. Collaboration is, at times, a byproduct of necessity. For many years, contractors, subcontractors and lower tiers have all talked about a more collaborative approach to building, but habit always seemed to get in the way, as many of those same parties were quick to resort to familiar, one-sided contracting methods and traditional risk allocation mechanisms. Now, however, faced with the need to revise project programs, manage disrupted supply chains, accommodate public health restrictions, and mitigate project delays, project owners and construction managers are learning that it is in their best interest to work with team members in unison, not restricted by lines of contractual privity. This presents a real opportunity for the industry to come together to develop processes and procedures that correspond to the changed public health and market conditions.

We expect that along the way, project owners and program managers may see the benefit of increased participation in joint efforts related to managing project budget, scope and time. Adding stakeholders to the conversation lends itself to the future use of more collaborative project delivery methods, and improved contracting processes through which parties agree to fairly allocate risk based on their ability to control, and prevent, such risk. 

Innovations in Technology and Building Methods.  Physical distancing is now the norm, which necessarily changes the way contractors, subcontractors and other project participants interact with one another. Interactive web-based meetings have replaced in-person meetings. Tours and inspections are being conducted virtually to allow stakeholders to monitor project progress from miles away. Artificially intelligent sensors and devices can be worn to ensure physical distancing measures are being observed. All of these tools offer real-time information so that issues can be identified and resolved quickly, thus improving productivity and efficiency. 

We can also expect to see an increase in the modular building trend. Here, control is the key. When physical components or units are built off-site, the benefit is two-fold: first, more opportunities to better control the safety of that off-site environment, and second, a greater ability to control, and reduce, on-site congestion. 

Made in the U.S.A.  The pandemic has exposed another truth: the construction industry in the United States is still dependent on international materials and workers. Reports indicate that nearly 30% of building materials used in the United States are imported from China. When international borders are closed, or trade relations are strained, disruptions in critical supply chains are inevitable. Herein lies an opportunity to bring production and manufacturing operations back to the United States, particularly where owners and developers may be willing to pay higher prices for materials that come from a more reliable supply chain. The construction of those very manufacturing facilities could, in and of itself, also be a boon for the industry. 

Safer and Cleaner Project Sites.  Practices such as temperature checks, frequent handwashing, improved mask and glove policies, and sanitization of work sites and equipment are all drivers for improved public health, and are likely to continue beyond the pandemic. We may also see evidence of secondary benefits from certain health and safety measures. For example, staggered shifts will lead to less crowded work areas, which should aid accident prevention efforts. Less congested work areas may also lessen burdens to coordinate work, which in turn may increase productivity. With these practices likely here for the long-term, the project participants most willing to embrace the new measures are most likely to succeed.

Justin M. Alaburda is a member and co-managing partner of the Akron office of Brennan, Manna & Diamond. He can be reached at jmalaburda@bmdllc.com. 


Interesting Trends Revealed in 50-State Medicaid Budget Survey

Results of the KFF annual survey of state Medicaid directors reveal some fascinating trends in Medicaid service delivery and benefit coverage. Read on for a summary of the highlights we find most noteworthy. Background As a preliminary matter, many of the trends KFF identifies and that we highlight below are no doubt a result of the Covid-19 pandemic. The pandemic triggered a public health emergency and economic crisis that resulted in increased Medicaid enrollment, service offerings, and flexibility in service delivery, along with a heightened awareness of disparities in access to care and health outcomes.

Changes to Physician Assistant Statutes in Florida

In the last year, there have been many changes to the scope of practice and collaboration/supervision requirements for advanced practice providers such as APRNs and physician assistants in the state of Florida. In a previous Client Alert we discussed House Bill 607, which expanded the autonomous practice of APRNs providing primary care services in Florida.

Ohio Senate Bill 49 – Ohio Expands Lien Rights for Design Professionals

Effective September 30, 2021, Ohio granted limited lien rights to design professionals, including architects, landscape architects, engineers, and surveyors. Ohio Governor Mike DeWine signed Senate Bill 49 into law on July 1, 2021. This new law established a statutory right to lien commercial real estate by Ohio design professionals who, until now, could not file a lien for non-payment of professional services. Senator Vernon Sykes, a primary sponsor of Senate Bill 49, stated that the “legislation ensures that architects, engineers and other designers will get paid for their work, regardless of the outcome of their projects . . . It will support hardworking Ohioans by protecting the value of their labor . . ..”

Primary Care Practice Officially Defined in Florida for APRNs Practicing Autonomously

As many providers in Florida are aware, House Bill 607 (the “Bill”), which was passed in February of last year, gives certain APRNs in Florida the ability to practice autonomously. The only catch is that they must work in primary practice. When the Bill was initially passed, there was question as to what was exactly considered primary care, absent a definition from the Florida Board of Nursing. However, as of February 25, 2021, “primary care practice” has officially been defined.

Part II of the No Surprises Act

The Department of Health and Human Services (“HHS”) published Part II of the No Surprises Act on September 30, 2021, which will take effect on January 1, 2022. The new guidance, in large part, focuses on the independent dispute resolution process that was briefly mentioned in Part I of the Act. In addition, there is now guidance on good faith estimate requirements, the patient-provider dispute resolution processes, and added external review provisions.