In a nutshell
Healthcare is an industry-specific practice area that encompasses a number of traditional law practices such as corporate and litigation. Because the industry is highly regulated, specialist healthcare lawyers are often needed to monitor and react to new regulations.
Typically, the matters that healthcare lawyers deal with encompass three different categories. First is the transactional element – essentially the buying or selling of healthcare businesses. Second is any litigation among healthcare companies, and third is advising on the regulatory sphere and in relation to any governmental legislative issues.
Healthcare is a massive part of the US economy. In 2019 healthcare spending was almost 18% of GDP, and by 2027 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.
It is also a practice that continually evolves because of ever-changing laws. 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.
Clients include investment funds who are interested in investing in healthcare, and established providers, like hospitals.
What lawyers do
Healthcare: transactional
- 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 Law). 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 Jeffrey Schneider of Hogan Lovells, 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.”
Healthcare: litigation
- Litigation work – especially in relation to government investigations – tends to be more sophisticated, attracting more experienced practitioners.
- Government-funded Medicare and Medicaid payments are a major source of litigation and government investigations. The set of rules surrounding this area is extensive, and it affects a lot of layers of the healthcare infrastructure.
- 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.
Healthcare: advice
- 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,” states Dennis Barry, lecturer at the University of Virginia and former partner at King & Spalding.
- 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.
Realities of the job
- “Like every lawyer you have to be able to listen and to communicate but I think particularly for healthcare law you have to be able to read the law and fully understand its nuances. It is a highly regulatory practice area so you cannot be afraid of diving into statutory text and regulatory text,” says Edward S. Kornreich of Proskauer Rose.
- Kornreich continues: “The joy I get from solving a problem for a client is what drives the practice. In healthcare, clients tend to be people who are interested in serving the public and by solving any issues you advance the public interest.”
- Kornreich adds that the type of person who would thrive in this area would be “somebody who is a good communicator, thoughtful and has the ability to and enjoys reading, understanding and explaining the law, as well as applying it in various contexts. It is also useful to have someone who is orientated toward social welfare.”
- On working hours, Kornreich states “I think they are reasonable on average. This is generally because of the nature of people as they tend to be more willing to tolerate personal lives on the part of their employees.”
- “I think what I like the most is I'm representing clients who are dedicated to making people better. It is a very human-orientated practice. It's not just about numbers or strategy or markets. The consumers really matter,” says Greg Luce of Skadden.
- To succeed in this practice area Luce goes on to say: “You have to have a thorough understanding of how this business and its sectors work. Every industry has its qualities but you need to understand how a healthcare provider or manufacturer operates to understand the implications of the legal regime. You really need to know your client.”
- Luce continues in offering general career advice for this practice area: “I think you need to match your expectations to your interests. If you want to be a litigator and test yourself and you want to be in the cauldron of a court room then do. If you want to be in healthcare and get into the policy and regulations and interested in how industry is evolving, it is a great field. It is an area that offers a lot of opportunities for entrepreneurial thinkers.”
- “You need to be solution-orientated and practical. There is a lot of gray area in the law because it is always developing so you have to review the facts and law carefully and provide a practical solution. It is a very complex practice area so you need to be able to take something complicated and explain it in a straight forward way for your clients,” says Jim Owens of McDermott Will & Emery.
- Owens tell us his favorite aspect of working in healthcare: “I love representing providers. Doctors and nurses and other healthcare professionals want to help people. They have good intentions and are very selfless – it makes me happy to work with those people. Everyone has healthcare in their life, its a personal thing. To be able to work in an industry that is doing good is rewarding.”
- However Owens warns against the trickier aspects of the practice area: “The amount of change is difficult so you have to keep on top of it. You always have to check what the current law is as you deliver advice. There are so many aspects to what we do which makes it very complicated.”
- “I would say that if you have an interest in healthcare or background in healthcare you should consider this field. In the US the population is ageing and the demand is rising. Because of this demand it will be a specialism in demand,” Owens tell us.
Current issues
June 2021
- Challenges arising in the COVID-19 pandemic dominate the healthcare sector. Law firms are busy advising clients on how to navigate the uncertainties and unprecedented challenges connected to the outbreak. Healthcare providers for example may have legal questions as and when they need to change how they usually operate as a direct result of the pandemic.
- Looking long-term, the pandemic's effects will become increasingly clear as we come to terms with the ‘new normal'; these will likely include negatives and positives too. With the increase of telemedicine and “digitally enabled care”, patients will be able to more easily access their doctors remotely. With apps such as Doctor On Demand, Teladoc, and Heal, patients are now able to frequently chat with their doctors via video call or chat and have 24/7 access to other healthcare resources. Although these apps were on the market pre-pandemic, their usage has accelerated over the past year and will likely continue to be an asset in the post-COVID world.
- In March 2020 the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) was signed into law to deal with the economic effects of COVID-19, pumping $2 trillion worth of resources into the US economy. The Act will also enable pharmaceutical companies to work more closely with government with a view to researching and developing products in response to the pandemic. This includes efforts to find a vaccine for the disease – $3.5 billion has been allocated to the government’s Biomedical Advanced Research and Development Authority (BARDA) for this purpose.
- Vaccine rollout in the US was accelerated as the Biden administration took power, though seems to have surpassed its peak in April when 3.38 million people received a vaccine. This was followed by a 56% decrease with a figure of around 1.5million reported in May. With the Pfizer, Johnson & Johnson and Moderna vaccines in full-swing, President Biden set a goal of administering 70% of adults with a dose by July 4.
- President Biden has also signed the American Rescue Plan Act 2021, an additional $1.9 trillion economic stimulus bill. The Act includes provisions to help hospitals and healthcare systems provide care to patients and communities, as well as measures to increase access to health insurance.
- Lawsuits targeting the Affordable Care Act (ACA) and issues that relate to it have continued to rage on. Since the Biden administration came into the White House, some lawsuits have been paused, such as the Double Billing Rule and Contraceptive Mandate to allow federal agencies time to consult. The ACA, in its 11-year history, has survived several court challenges in the US, but continues to provide tens of millions of Americans access to affordable healthcare coverage.
- Fitness gadgets are coming under scrutiny with a recent antitrust lawsuit having been filed against Apple accusing it of monopolizing heart-rate monitoring technology for the Apple Watch. The lawsuit alleges Apple's unethical competition practice has not only put user’s health in danger but made its technology incompatible. Apple faced another lawsuit related to patent infringement by Mountain View Partners, a California-based company, and asked the U.S. International Trade Commission to ban Apple Watch imports.
- Health data privacy regulations are being reconsidered at the federal and state levels, and new approaches to ensuring data privacy are being developed to keep up with technological advances and challenges. Numerous stakeholders have noted that it is not possible for the now long-outdated Health Insurance Portability and Accountability Act (HIPAA) of 1996 to address the issues organizations and business associates face today. There may be accidental barriers to expanding the sharing of information as well as providing better care to patients due to the lack of clarity in HIPAA's application and intersection with other privacy regulations.
Learn about current healthcare issues from the lawyers navigating them:
