In our column of July 30, 1998, we explored the many aspects of health law, which is really a variety of legal specialties practiced in a highly regulated industry that depends for a substantial part of its revenues upon such government programs as Medicare and Medicaid.
Health law traces some of its origins to the creation of the Medicare program in 1964-65. Medicare was designed as a means of assuring that older Americans as well as certain chronically ill patients would be provided with health-care services. In the space of only a generation, however, the Medicare program grew so large that it profoundly affected the economics of medicine, and was a major factor in turning the profession of medicine and the largely charitable operation of hospitals and nursing homes into the health-care behemoth that today is the subject of such endless concern and debate.
Years ago hospitals and other health-care providers had very limited and discrete uses for lawyers. Hospital executives often negotiated and even drafted their facilities' contracts on their own. Lawyers were called upon to assist in establishing a hospital, such as by drawing up corporate papers, advising with regard to an application for tax-exempt status, and so on. In many hospitals, one or more prominent members of the bar would be invited to serve on the hospital's board of trustees and sometimes would provide legal services gratis. Legal work for which outside lawyers were retained would often be limited to such routine matters as revising corporate bylaws, defending the occasional suit and initiating collection actions on delinquent patient accounts.
Charitable hospitals, clinics and the like were for many years immune from malpractice liability and even exempt from the labor and antitrust laws. As is only too apparent, the Norman Rockwell and Marcus Welby images of medical practice have been replaced with hospital chains, multi-site multi-specialty physician groups and a greater emphasis on outpatient care and home care. New drugs, medical procedures and modalities of care have vastly improved the clinical side of medicine, while managed care and market forces have revolutionized the economics of health-care.
With the explosive growth in the health-care industry, the need for experienced health-care counsel has also grown. Today, health-care lawyers find themselves involved in every aspect of this dynamic field and in positions in both the private and public sectors.
How does one become a health lawyer? Many current health-care lawyers didn't start out as such, but happened into the health-care industry, liked it and have made it their career. Many other lawyers, particularly those with prior experience as a health-care professional or administrator, set their sights on a career in health law. A sizeable number of health-care attorneys have a nursing or other professional background.
Yet one doesn't become a health lawyer merely by having worked in the health-care industry and then going to law school, or merely by taking all the heath law courses offered in law school, or by going to law school and then obtaining a master's degree in public health or health-care administration.
Each of these certainly helps towards an understanding of the health-care industry, but the most experienced health lawyers are those who have been immersed on a day-to-day basis in the myriad issues raised by the business of health-care and who understand and appreciate the dynamics, economics and politics that drive everything from small physician groups to the largest university hospitals and health systems, and from health insurers to pharmaceutical companies.
Many health-care lawyers are generalists, who handle a wide variety of legal and regulatory matters raised by health-care providers and payors. The industry presents so many challenges, however, that some instead decide to specialize in only one area, such as regulatory or antitrust issues in health-care. Others choose to specialize in Medicare and Medicaid reimbursement issues and develop an expertise in the voluminous and often confusing laws, regulations, rules and manuals governing payment for medical services under those programs.
Still others have chosen to focus exclusively on fraud and abuse matters in the wake of the massive efforts by the federal and state governments (and more recently private insurers) to contain this serious drain upon the health-care financing system. Others choose to specialize in representing a particular segment of the industry, such as physicians, hospitals, or nursing homes. Each sector of the industry requires particular knowledge and expertise.
A Variety of Settings
Health-care lawyers practice in a variety of settings. Firms: Many large firms have health law departments, and a few have national practices representing clients in many states on a variety of matters. Because they have many levels of expertise and many different specialties, they are able to be full service firms for their clients.
On the other hand, to paraphrase what the late Tip O'Neill said about politics, all health-care is local. States regulate institutional health-care providers as well as health insurers, and the provision and financing of health-care services is driven largely by community needs. Some smaller law firms have chosen to be health law boutiques, focusing almost exclusively on representing providers such as hospitals or doctors in a particular area. These smaller firms often must pair up with specialists in other firms (e.g., in securities, antitrust, tax) to provide comprehensive representation of their clients. In rural communities, it is not uncommon for a local solo practitioner to be a provider's primary counsel. Some defense firms that represent physicians in malpractice actions have found themselves developing a health-care practice off their client base. For example, a physician using a defense firm in a malpractice action may separately seek the firm's assistance in a professional disciplinary action, or in drafting a new employment agreement, selling a medical practice, and so on. Still others focus on the lucrative and controversial business of lobbying.
In-House Counsel: Larger hospitals, nursing homes, home health agencies and other providers often have their own in-house legal departments with anywhere from a single lawyer to six or more.
They generally handle a large volume and variety of matters on a day-to-day basis and refer specific matters like complex litigation to outside firms. Some in-house health lawyers focus primarily on government and regulatory issues. Others serve in an internal compliance capacity.
Corporate counsel positions are not limited to providers, however; health-care lawyers can be found in-house in pharmaceutical, medical equipment and medical supply companies; clinical laboratory companies; assisted living developers and operators; practice management and billing companies; health insurers; health-care professional and trade associations; medical colleges; management information system developers; foundations and philanthropies supporting health-care and medical research; and in many other entities directly or indirectly involved in the health-care arena.
Government: In an industry that is heavily regulated and influenced by government, many health-care attorneys can be found in the public sector. The federal agencies with the most extensive involvement in health-care are the U.S. Department of Health and Human Services, the Health-Care Financing Administration of HHS (administers the Medicare program), HHS' Office of Inspector General (fraud and abuse; patient care quality, etc.) the Occupational Safety and Health Administration, and the Public Health Service.
Other departments with extensive involvement in health-care include the Treasury (the Internal Revenue Service monitors tax-exempt charitable institutions) and the U.S. Departments of Justice (e.g., fraud and abuse; antitrust), Defense, and Veterans' Affairs (extensive health-care services covering the military and veterans). Both houses of Congress and many other agencies and divisions of the Executive Branch have lawyers dealing with legislation, policy and oversight affecting health-care providers and payors.
As noted earlier, states, in the exercise of their sovereign police powers, license and regulate non-federal health-care providers. New York in particular plays a major role in how health-care is provided, monitored and paid for within (and sometimes without) its jurisdiction. The Department of Health is one of New York's largest agencies, and its Division of Legal Affairs numbers some 110 lawyers, assigned to such areas as the Medicaid program, professional medical conduct, legislation, litigation, enforcement actions and handling a wide variety of health-related legal matters.
New York's Department of Insurance has health insurers within its preview, and the Department of Law (Attorney General's Office) deals with the health-care industry through its Charities Bureau (non-profit providers), Health-care Bureau, and Office of Deputy Attorney General for Medicaid Fraud Control, among others. Although the administration of New York's Medicaid program has been transferred from the Department of Social Services to the Department of Health, Social Services continues to be involved in a variety of heath-related areas.
State agencies that deal with the mental health segment of the industry include, besides the Health Department, the Office of Mental Health, the Office of Alcoholism and Substance Abuse Services, the Office of Mental Retardation and Developmental Disabilities and the Commission on Quality of Care for the Mentally Disabled. Lawyers in the Education Department, which licenses doctors, nurses and other health-care professionals, deal with issues of ethics, professional competence, and licensing standards and requirements.
The Labor Department has jurisdiction over workplace conditions in health-care facilities and other health-related employers. The Department of Correctional Services not only oversees the state's prison system but is responsible for providing or contracting to provide health-care services to inmates. The Executive and Legislative branches have lawyers involved in developing legislation and policies affecting health-care delivery and health-care financing.
Large municipalities such as cities and counties also have extensive involvement in health-care. The City of New York, for example, has lawyers handling health-care matters not only in its Health Department, but also in its Office of Chief Medical Examiner, the Health and Hospitals' Corp., and the Corporation Counsel's Office. This is only a sampling of where health lawyers can be found in the private and public sectors.
A final note: as is true of lawyers in many other specialties, one of the hallmarks of a successful health lawyer is his/her ability not just to focus narrowly on the legal aspects of an issue but to be part of a problem-solving team effort. Too often, lawyers tend to confine their analysis and advice to what a client should not do, or how a proposed arrangement is violative of laws or regulations.
Health-care by its very nature is concerned with problem-solving, i.e., how to diagnose what a patient's medical problem may be and then to determine what is the most effective and appropriate medical treatment or procedure. Similarly, health lawyers, regardless of whether they are in the private or public sector, must be able not only to identify what legal issues present themselves in a given situation, but also to apply their analytical abilities and knowledge of the industry to solve a particular problem or propose one or more alternative courses of action.
Sometimes, in the situation presented, the legal issues are secondary or even non-existent and the client is simply looking for some sound general advice, or perhaps a common sense approach to solving a particular problem. The almost endless variety of interesting and challenging issues, as well as the professional satisfaction of working in or with an industry that ultimately benefits vulnerable populations are among the many attractions of being a health-care lawyer.
As the population ages, and medicine progresses and health-care expenditures continue to grow, there will be manifold opportunities for lawyers interested in specializing in health law.
Further information on careers in this field is available from the American Health Lawyers Association, 1120 Connecticut Avenue, NW, Suite 950, Washington, D.C. 20036-3902, telephone: (202) 833-1100, Web site: www.healthlawyers.org.
Francis J. Serbaroli is a partner at Cadwalader, Wickersham & Taft.
This article is reprinted with permission from the March 31st issue of the New York Law Journal © 1999 NLP LP Company.