In a nutshell
“Our practice is more defined by who our clients are and the industry – as well as the substantive laws – than it is by the process of what we do,” Jeffrey Schneider of Hogan Lovells tells us. Typically though, health law practitioners provide regulatory advice on the implementation of (new) legislation, and advise healthcare companies in transactions, commercial litigation and government investigations.
Healthcare is a massive part of the US economy. In October 2012 this was a sizable 18%, and by 2021 it is predicted to account for just under one-fifth of the country's economy. Many major firms have healthcare practices and there are many niche or boutique health firms, with many of them tied to specific states. Why is there a need for so many health lawyers? “The main difference with other sectors of the economy is the unique and intensive regulatory environment,” explains Doug Hastings, chair of Epstein Becker & Green and a member of its healthcare and life sciences practice.
It is also a practice that is “constantly in flux because of the ever-changing laws,” says Schneider. The passing of the Patient Protection and Affordable Care Act in March 2010 (aka Obamacare), for example, remains a landmark moment. One thing is for certain: the nationwide demand for healthcare advice and representation has never been greater.
What lawyers do
- Healthcare lawyers are sometimes brought in as troubleshooters at the same stage of a deal that tax and antitrust attorneys are brought in (see Corporate section). This is often the case for smaller BigLaw health practices and local healthcare boutiques.
- At other times healthcare lawyers will run a deal from soup to nuts. This happens when there are numerous health industry clients or statutes involved, so lawyers who understand the regulatory context of a deal need to be involved from the outset. This happens more often in larger BigLaw healthcare practices and boutiques, but is increasingly common given the complexity of new healthcare reforms.
- Healthcare transactional work involves putting a deal together and doing the due diligence as normal. According to Schneider, however, “these are usually very complicated deals because of the regulatory constraints that exist, so you have to structure them in ways that you might not in other industries.”
- Litigation work – especially in relation to government investigations – is “the high end of regulatory healthcare work for people who have been at it for a long time and are really good,” Hastings says.
- Government-funded Medicare and Medicaid payments are a major source of litigation and government investigations. “There is a whole set of rules on how you can get paid as a healthcare provider for Medicare and Medicaid services,” explains Hastings. “Anyone that provides healthcare – hospitals, physicians, hospices, home care providers – will have some Medicare patients. Not only are there questions surrounding the eligibility and amount of payment, but providers might face anything from a routine government audit to an investigation into healthcare fraud.”
- Healthcare and life sciences practices see a lot of qui tam litigation – cases in which someone who assists with a government prosecution can receive all or part of the penalty imposed.
- Outside the times when healthcare lawyers are called in for litigation and transactions, they are constantly providing regulatory advice. Schneider says: “It's about making sure clients comply with the vast array of regulations out there that limit a company's conduct, as well as helping clients think through problems and do things in the correct manner.”
- The advice covers more than just the regulatory side. “There are nonregulatory issues to deal with as well, such as contractual issues with physicians and medical staff relationships,” Dennis Barry of King & Spalding states.
- Among the key pieces of legislation governing Medicare fraud and abuse are the antikickback law and the Stark Law. The latter governs physicians’ referral of patients to medical facilities in which that physician has a financial interest.
- Federal antitrust laws and Food & Drug Administration regulations also form an important component of health lawyers’ work.
- The Obama healthcare reforms have brought sweeping changes to the country’s healthcare system. Among other things the new laws (1) expand those eligible for Medicaid; (2) regulate the premiums health insurance companies can charge; (3) provide subsidies for less wealthy individuals to pay for insurance; (4) increase the obligations on employers to provide health benefits; (5) bar insurers from dropping people from coverage when they get sick; (6) increase taxation on individuals with high incomes and on pharmaceutical and medical products.
- Monitoring legislative changes is a major task for all healthcare and life sciences lawyers. Junior associates especially can be involved in writing up summaries of the implications of new legislation for various client sectors.
- The implementation of the Affordable Care Act has increased regulatory scrutiny of both healthcare plans and providers. Healthcare plans need to ensure they have adequate provisions and provider networks in place for customers, while providers may need to adapt financial arrangements, exposing them to increased regulatory scrutiny.
- The ACA has also placed an emphasis on providing quality, value-for-money care; consequently hospitals are trying to maintain financial competitiveness while still providing excellent services. Mergers have become an increasingly popular method to try and boost savings but hospitals need to ensure they don't fall foul of antitrust laws or regulators in the process. Law firms will continue to see a range of healthcare clients seeking advice on mergers, and regulatory and antitrust matters.
- Pharmaceutical, biotech and medical companies have also seen a rise in mergers as they aim to continue producing high-quality products without excessive spending.
- Pharmaceutical company mergers will be further driven by the expiration of several pharmaceutical patents. It's expected that those losing patents will seek to protect themselves from profit losses by acquiring companies with lucrative products.
"For attorneys with the ability to navigate the technical regulatory interplay governing the healthcare industry [...] significant career opportunities are available in both private practice and in-house legal roles." — Healthcare leaders at Waller give an insider's view of life as a healthcare lawyer and their view of today's market.>>>