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March 28 — It may seem hard to believe, but some 30 or 40 years ago, health care wasn't much of a field for lawyers.
“There was no notion” of health law as a specialty, Douglas A. Hastings, of Epstein, Becker & Green in Washington, told Bloomberg BNA. In the early 1970s, a few small boutique health-law firms, like EBG, began popping up but for the most part firms weren't developing practices focused on health law, he said. Virtually no lawyers identified themselves as health-law specialists at the time.
Hospitals and health-care providers relied primarily on generalists to advise them, Frederic J. Entin, a shareholder at Polsinelli in Chicago, said. Though some hospitals had small in-house attorney staffs, most turned to outside counsel for help. To outside attorneys, hospitals were businesses with a few unique legal issues, such as questions related to maintaining their tax-exempt status.
Today, obviously, the environment has changed. Many large law firms have health-law practice groups, and EBG, which started with just a few attorneys, now is a national law firm. The trend toward adding in-house resources took off in the 1990s, Entin said. Most hospitals and health systems have large, in-house attorney staffs that provide oversight and advice on day-to-day issues, but still seek help from firms on sophisticated and technical issues.
Hastings told Bloomberg BNA he developed an interest in health law while a student at the University of Virginia Law School, and he joined EBG in 1981 specifically to practice in the field. Entin took a more circuitous route, beginning as a litigator in the Illinois Attorney General's Office's environmental division, then becoming general counsel at the Illinois Department of Mental Health, before joining the University of Chicago Hospital as an in-house attorney.
Entin went on to become general counsel at the American Hospital Association, then joined Posinelli. Hastings is a past president of the American Health Lawyers Association. Both are emeritus members of the Health Law Reporter's advisory board.
The catalyst for the development of health law as a specialty can be traced to legal and regulatory developments that began in the mid-1960s, Hastings said. In 1965, President Lyndon B. Johnson signed amendments to the Social Security Act that established Medicare and Medicaid.
These laws were followed by the Professional Standards Review Organization Act, which in 1972 established organizations to review health-care services paid for by Medicaid, Medicare and other federal entitlement programs; the federal Health Maintenance Organization Act in 1973, which was intended to spur coordination of payers and providers; and the National Health Planning and Resources Development Act of 1974, which created state-based organizations to oversee the development of health-care facilities.
Key Health-Care Laws:
Questions involving the Anti-Kickback Statute, which was enacted as part of the 1972 Social Security Act amendments, heated up after Congress authorized the issuance of safe harbor regulations in 1987. The Stark Law, which prohibits physician self-referrals, came in 1989. And, although the False Claims Act has been in existence since the 1860's, the government stepped up enforcement against health-care providers in the late 1980s and early 1990s, Entin told Bloomberg BNA.
With all these laws came regulations implementing them, and a need for lawyers who could advise providers on compliance issues or defend against accusations of noncompliance. A complex regulatory system, which includes exceptions and safe harbors, requires attorneys who understand how they work, Hastings said.
Additionally, the 1990s saw a growth in hospital mergers and joint ventures, giving rise to a need for lawyers who specialize in antitrust issues specifically related to health care. Attorneys who could spot and advise entities on regulatory compliance issues that arise on the way to an affiliation were needed.
Today, the Affordable Care Act has added a whole new level of complexity, as it calls for providers to work together to expand needed care while controlling costs. The replacement of the fee-per-service reimbursement system with a value-based payment protocol also is providing new work for attorneys.
This is all very different from when Entin started practicing health law in the 1970s. At that time, he told Bloomberg BNA, his practice mostly consisted of advising the hospital on what he called “bedside issues,” such as ensuring patients signed informed consent forms, determining when the hospital had to honor the wishes of patients who refused blood transfusions due to their religious beliefs and addressing medical malpractice complaints.
Medical staff issues, including drafting new medical staff bylaws, were part of his practice, but Entin said very few transactions-related concerns arose in those days.
Additionally, few hospitals had in-house staffs at the time. There were about six facilities in the Chicago area that each employed one or two attorneys, he said. Mostly, hospitals would rely on outside counsel, especially tax lawyers who, over time, “morphed into” health-care attorneys, Entin said.
Those few in-house hospital counsel in Chicago often turned to one another for advice, he said. They formed a group that would meet occasionally to discuss issues. That group still meets, Entin said, but has grown much larger in number.
As regulatory concerns became more prominent, more specialized advice was needed, Entin and Hastings said.
The scope and depth of the regulatory issues facing health-care providers after the adoption of the 1970s-era laws gave rise to a need for more sophisticated legal counsel, Hastings said. Additionally, he said, there has been a “surge of social issues” surrounding health care, as the industry itself has exploded, and an understanding has developed that health care is both “a commodity and social good.”
Today, being a health-law generalist is challenging. The practice has become one that an attorney “can't even begin to get his or her arms around” without developing some sort of specialty, Hastings said. The “knowledge curve is steeper” than it was and, generally, attorneys break down into three major groups: those who represent providers in transactions work, those who advise providers on regulatory issues and those who litigate on behalf of providers.
To be successful today, a health-care attorney should develop such a deep expertise in a particular area so as to be the “go-to person” in their firm, Entin said. Firms, meanwhile, should be prepared to provide health-care industry clients with very sophisticated advice on regulatory and transactional matters.
Adding even more complexity to the field today is the trend toward consolidations.
“Chicago was late to the consolidation movement,” Entin said. In the early 1980s, there were over 100 independent hospitals, including five academic medical centers, in the area. Hospitals there were “much more self-contained,” and there weren't a lot of joint ventures.
Transactions work is especially challenging, Entin said, as it involves the analysis of complex compliance issues involving the self-referral and anti-kickback laws, as well such diverse issues as labor and employment and taxation. All these questions require “unique expertise,” Entin said. A general corporate lawyer “just can't handle” all the issues that arise in putting together a health-care provider affiliation because health-care transactions involve issues that don't arise in general corporate mergers and acquisitions, he said.
Health-care transactions also present challenging antitrust issues, Entin said, because the markets generally are more concentrated.
The consolidations trend isn't going to lessen the need for health-care attorneys, Hastings added. Even though there may be fewer hospitals or health systems, those that remain are getting larger. A stand-alone hospital, for example, may join a health system in which there are several other hospitals. This only increases the need for lawyers specializing in health care, Hastings said.
Health law is a “really exciting field, with no end in sight,” Hasting told Bloomberg BNA, saying he would encourage young lawyers to go into the field. Entin echoed the sentiment, saying health law is a very interesting field, with so much to learn. Health care is a “fascinating industry that's not going to go away,” he said.
It also presents attorneys with a chance to do important work, he said. Health-care providers “are good, mission-driven, clients,” who are trying to help people who need medical services, Entin said. Health-law attorneys sometimes must be mission-driven as well.
Hastings advised that young lawyers entering the field first learn how to practice law, including how to build relationships with clients. It's “about problem-solving,” not just about applying the law to a particular fact situation, he said. He also said young lawyers should “touch different components” of health law in order to get a sense of the big-picture issues facing the field. Looking at a broad set of health-care issues will give those just starting out a “grasp of how huge the field is,” he said.
He also advised taking advantage of educational opportunities, such as those offered by the AHLA, to learn about health-law issues.
Entin suggested that young lawyers who want to go into health-law practice join large firms. Neither law school nor an in-house position will help an attorney learn the basic lawyering skills needed to practice in the field, he said. Once there, he or she should take every project offered, until they're able to develop an expertise in a particular area.
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