Why Health Lawyers Should See Opportunities, Not Obstacles in Industry Uncertainty

Health-care policy and uncertainty around regulatory changes and priorities will continue to drive demand for health law legal advice and expertise in 2018.  As Bloomberg Law’s 2018 Outlook on Health Care explained in detail, experienced members of the health-care bar and industry predict that health industry lawyers will be tested once again in 2018, in ways that may have been hard to predict even a few year ago.

Their clients are facing regulatory and business challenges, including keeping up with sweeping changes in the industry such as consolidation on both the health-care payer and provider sides, new modes of health-care delivery and the increasing intersection of health IT and traditional health-care industry players, like hospitals, health systems and physician practices.  In a nutshell, health-care practices at law firms will need to show an even greater breadth of knowledge and business acumen than ever before to meet the growing needs of existing clients and, perhaps more importantly, to win new ones.

Following the signals and actions of the Department of Health & Human Services, understanding Medicare and Medicaid, and knowing what are the biggest compliance risks are no longer sufficient foundations for a successful health law practice.  To remain on a health-care organization’s short list of trusted advisers, health lawyers increasingly must be business strategists, staying on top of industry consolidation and understanding the strategic goals served by mergers, joint ventures, and other affiliations.

They also must translate complex regulations into a set of practical priorities to ensure compliance, and even predict the future.  As Kirk Nahra of Wiley Rein LLP commented, health-care lawyers are at the forefront of a trend in which lawyers are being asked to counsel on things that are not really legal issues.

Policy Questions from Capitol Hill to the Justice Department

On the policy front, the challenges in advising clients extend beyond the uncertainty created by the Trump Administration’s asserted desire to repeal the Affordable Care Act and regulatory efforts to undermine its efficacy.  Caseloads for health-care fraud and abuse attorneys will continue to be heavy in 2018, as the DOJ has signaled an ongoing commitment to prosecuting fraud under the False Claims Act (FCA) and Congress has backed that up with funding.

Furthermore, after financial penalties for FCA violations nearly doubled in August 2016, the financial incentives for whistleblowers who bring qui tam suits is now higher than ever, further driving cases and work.  The question for attorneys advising the industry is often who the DOJ will target in bringing such cases and how to help clients manage risk and stay out of DOJ’s crosshairs.

As remarked by veteran practitioners at an American Health Lawyers Association conference in November 2017, there has been an increase in the number of data-driven FCA cases.  The DOJ is using data analysis tools proactively to identify trends that could lead to new FCA cases.  Given this development, attorneys advising clients would be wise to use data themselves to keep up with the government’s approach to spotting potential fraud and especially the specific sectors within the industry that the DOJ is targeting.

Data and Privacy Issues Evolve

Since the move to electronic health records and the passage of the Health Insurance Portability and Accountability Act (HIPAA) in 1996, health-care practices have needed attorneys who understand legal requirements surrounding health-care data and privacy.  Until recent years, these issues were mostly covered by attorneys who had gained expertise in understanding HIPAA’s requirements.  However, as the industry has evolved and especially in light of the remarkable growth in health information technology, health-care attorneys and practices now need data, privacy and cybersecurity expertise well beyond understanding the scope of HIPAA.

Elliot Golding of Squire Patton Boggs LLP, and a founding member of Bloomberg Law’s Health Care Practice Innovation Board, has observed the increasing use of data to support outcomes in the industry.  Remarking on how quickly data analytics have progressed in the health-care industry, he said that his practice is often fielding data-focused questions related to creative initiatives his clients want to launch.

As these questions arise, Golding said that understanding data and privacy issues, including cybersecurity risks, is necessary to provide full service to clients.  He views approaching a health-care entity about representation without addressing privacy and cybersecurity issues as often missing an opportunity.

Additionally, as attorneys experienced with health-care data issues have evolved beyond answering HIPAA questions, he said that his practice is gaining more business from “nontraditional entities,” those not usually associated with the health-care industry but that are touching the industry with digital or other solutions.  These entities bring more advanced technology to bear and use connected devices that create “more touchpoints and more opportunities for risk to develop,” Golding added.  While many regulators are getting more evolved with their guidance, including the Food and Drug Administration (FDA), it takes a holistic understanding of health-care delivery and technology to identify potential problems and advise clients effectively to minimize associated risks, he said.

Staying Ahead of Developments

Attorneys working in the health-care industry will again need to make time to keep up on developments on the legislative, regulatory, and business fronts.  Several attorneys on the Bloomberg Law Health Care Practice Innovation Board remarked that they invest “significant” time following the latest news reports, and for firm practitioners this would ordinarily be non-billable time.  Even without the ability to charge for such time, practitioners noted that a comprehensive understanding of the evolving health-care industry landscape is necessary to provide well-rounded advice that addresses both legal and policy implications.

In 2018, many health lawyers will need to follow industry mergers, joint ventures, and other strategic affiliations across the industry.  They will also need to stay abreast of how health IT is impacting the industry and being integrated into new health-care delivery models.  One key point consistently made is that, more than ever before, “staying on top of developments” means following and understanding more areas of law beyond traditional healthcare, including privacy & data security, antitrust, transactional, and litigation.  It also means understanding and explaining how the latest developments might impact clients.

As Nina Adatia Marsden of Hooper, Lundy and Bookman P.C. noted, an “essential part of the value we provide” is to be on the forefront of developments as they occur, and to advise clients proactively on those developments, which is something she focuses on now even more than in previous years.

Maintaining Client Trust and Winning Business

In addition to providing expert legal advice, arguably the holy grail of successful practitioners is to be consistently called and relied upon by clients.  Earning and keeping that trust is essential to winning new business and maintaining short-list status with existing clients.  Golding explained that companies in the industry need practical advice, for example about what is a real risk versus just theoretical, and a reality check on what others are doing.  The endgame, he said, is to provide “holistic” advice by integrating “legal, technical and practical business-oriented, risk-based guidance.”

With more and more clients needing the expert advice of attorneys serving the health-care industry and related participants, it appears that the reward in 2018 for attorneys adept at providing such “holistic” advice will be growth and more client work.  William Conaboy of Buchanan Ingersoll & Rooney PC echoed this sentiment, noting that he’s seeing more and more clients looking for him to answer questions that are more predictive or policy-driven than in the past.  He commented that his practice is increasingly helping clients navigate those “strategic, policy-driven considerations” and gauge risk.  He observed that business evolution is almost always ahead of the legal/policy evolution, and following industry changes helps lawyers counsel clients through both real day-to-day problems, while also allowing an explanation of how a developing policy wave may impact their businesses.

Regarding prospects for 2018, he commented that strategic affiliations among industry participants should increase this year, and that he’s closely following the impact of recently passed tax legislation on non-profit providers.  All of this will drive demand and need for legal expertise and advice.

The opioid crisis is also creating significant challenges for health lawyers.  Conaboy, reflecting on the opioid crisis gripping our country, suggested that service providers ancillary to rehabilitation clinics and pain management groups could be targets for litigation and government investigations.  Aetna and Blue Cross, for example, have recently filed cases alleging illegal claims for reimbursement for services tangential to pain management in several jurisdictions.  As Bloomberg Law has been reporting, policy and legal developments that follow the increased attention to opioid abuse are likely to present new issues for those counseling the industry.

Health-care lawyers will be seeing another busy and challenging year ahead.  While demand for their expertise has been rising steadily in recent years, industry lawyers are reporting that the work needed to meet that demand and expertly counsel clients is now more complicated than ever.  They need reliable sources on the latest developments and must predict the business impacts of an ever-changing legal landscape on their clients.  With the right tools, the chaos that is expected to continue to dominate the industry in 2018 should provide health lawyers a wealth of opportunities rather than obstacles.