November 20, 2013
by Jane Reister Conard
Just in time for Thanksgiving and the holiday season when you may well be gathering with family, now is the time to consider what answer you will give to inquiring family members who try to chat you up about your law school experience. While it used to be fairly simple as an undergraduate to respond to an inquiry about your studies or major with a one-word response of “English” or “Sociology,” with specialization left to future conversation, that may not suffice now. With increasing specialization in law and increasing knowledge of the challenges of finding a legal position befitting all the time and expense you have devoted to this professional degree, your answer to “What kind of law will you go into?” is expected to be more thoughtful and nuanced.
Since you have demonstrated at least minimal interest in health law by perusing the blog of the Center for Law and Biosciences, this blog contribution will present some of the characteristics and categories of health law, resources for further investigation, and some personal views/assessments based on my health law career.
I. Health law characteristics/resources
Let me begin with the observation that health law seems to hold the potential for increasing legal job growth. In contrast to some other fields of law, health law has enjoyed steady, uninterrupted growth over the past forty years, dating back to the passage of the federal Medicare and Medicaid laws in 1965 and 1966. Those programs ushered in not only reimbursement for care and attendant regulations to govern pay-outs, but also the ripple effect of increased access creating increased demand for more healthcare facilities, more health care professionals, and more healthcare research and development of drugs and devices -- all giving rise to more regulation to assure prompt and appropriate reimbursement of government healthcare funds. Add population growth to the mix of increased access and demand, and the result is that healthcare services and related products now account for about 18% of gross domestic product. In other words, health care is a big and growing sector of the economy.
The types of legal services needed in the healthcare sector of the economy are extremely varied. The type of practice setting can narrow the focus somewhat.
Three major settings are: 1) government (federal, state and local) and non-governmental organizations (private non-profit foundations, “think tanks,” and academia), 2) corporate (health facilities, insurance, pharmaceuticals, and device manufacturers), and 3) private practice/law firms (providing legal services for or against the first two categories as well as any type healthcare business venture). With a focus on industries, there are large numbers of health lawyers in the insurance, pharmaceutical, and medical device industries. With a focus on types of legal services, there are large numbers of lawyers who provide antitrust, business transaction, corporate compliance, financial, healthcare employment, intellectual property, litigation, professional licensing, and risk management advice and counsel – and a host of other legal topics I have no doubt overlooked. Rather than list all of them, the following paragraphs will suggest sources for your additional research.
The field of health law is broad enough to have fostered major, national professional organizations that offer continuing legal education and collegial interaction. My bias, since I served on its board and as an officer, is in favor of the American Health Lawyers Association (AHLA), which has about 12,000 members. The AHLA, along with the National Association for Law Placement, has developed a 15-page health law career pamphlet that is available on its website (www.healthlawyers.org). Unfortunately, access to the pamphlet is limited to AHLA members, but there is a law student membership available for $25, which would provide access to extensive AHLA on-line resources in addition to career information. AHLA also has a number of law school student chapters and a mentoring program for young lawyers.
The American Bar Association has a large Health Law Section as well, which also requires a section membership fee separate from overall membership dues. Finally, many local health law organizations are sponsored by state or metropolitan bar associations. Within the past year local health lawyers have established a health law section within the Utah State Bar. While this health law organization also has dues, it may be possible to attend their meetings by prior arrangement in order to meet and greet local health lawyers and share in their continuing legal education programs.
II. Personal health law career
As to my selection of health law and my career path, I confess that some of it was more luck than planning. When I was attending U.C. Davis King Hall School of Law in the late 1970’s, the sole health law class was offered every other year, and I couldn’t fit it into my schedule the only year it was offered during my three-year tenure. Nevertheless, I had two opportunities that enhanced my interest in health issues and health law. Based on exposure to the plight of migrant farm workers in California’s central valley, I wrote a law review article on the legal and fiscal responsibility to provide healthcare for indigent, undocumented workers and their families (“Health Care for Indigent Illegal Aliens: Whose Responsibility?” 8 U.C.D. Law Rev. 107, 1975). Unfortunately, this topic is still relevant today. My second opportunity related to health law came when I had a clinical experience in the office of a California state assemblywoman who served on the Assembly health committee. From these two experiences I developed an interest in public health and government’s role.
My first job out of law school was in the legal department of the California Department of Health, where I joined about thirty other lawyers who worked on Medicaid reimbursement, facility licensure, and other public health regulation. It was a “baptism by fire” since I was assigned to a team given the responsibility to implement a new state healthcare facilities permitting law prompted by federal legislation to limit healthcare costs by limiting the number of new healthcare facilities (generally referred to as “certificate of need” legislation). That fall after my law school graduation even before I received notice of my bar exam passage, I began representing the Department in “grandfathering” hearings for hospitals that had construction projects underway prior to the law’s effective date. It was exhilarating for a brand new lawyer to have a direct impact on a new system of health law regulation.
Two years later when the California Legislature mandated the break-up of the Department of Health into five smaller departments I ended up with the Department of Mental Health since my then current task was developing regulations governing the involuntary admissions of minors to state psychiatric facilities. That, too, was a cutting edge legal issue since the California regulations were more liberal in terms of giving more rights to minors than the standards imposed by a subsequent U.S. Supreme Court case arising from Pennsylvania. In a footnote the Court cited the pertinent, preceding California Supreme Court case and stated the California regulatory system was an example of permissible higher state standards.
In 1982, based in large part on their need for certificate of need legal experience, Intermountain Healthcare in Salt Lake City recruited me to join their nascent legal department. At the time I was their second in-house lawyer. When I retired from Intermountain in 2008, there were ten lawyers in the legal department, and today there are perhaps 14, with additional lawyers working in other organizational units. This demonstrates not only growth of the healthcare industry, but also the growth of legal opportunities in health law.
During my tenure at Intermountain, my work assignments ran the gamut of legal areas from antitrust to tax law. Specifically, I dealt with healthcare regulation and reimbursement, facility and professional licensing, business transactions, joint ventures, purchasing and service contracts, employment issues, non-profit tax issues, risk management issues, compliance and legal operational policies and procedures, medical staff governance issues, medical ethics issues, pharmacy issues, laboratory issues, and corporate governance matters. On a tangential level I worked on antitrust, immigration, intellectual property, and even some criminal law issues. Due to the breadth of legal issues, a necessary and valuable skill of in-house counsel is the ability to do issue spotting and assessment of the need for calling upon expert outside counsel.
Since my retirement from Intermountain I have had a solo health law practice through my limited liability company. I have contracted with a number of healthcare organizations in Utah and throughout the country, thanks to referrals from colleagues I’ve worked with in AHLA. The legal issues in my private practice have been varied, but my major emphasis is mediation and conflict management within healthcare facilities as they face an increased rate of change due to healthcare reform and reimbursement changes brought on by the Affordable Care Act. I have collaborated with Jeanne F. Franklin, Esq., from Arlington, VA, to form a partnership, EADR Solutions®, through which we have published papers (e.g., “Addressing the Art of Conflict Management in Healthcare Systems,” ABA Dispute Resolution Magazine, Spring, 2010) and presented educational seminars and conflict management workshops for healthcare clients (e.g., “Dispute Resolution Methods for Healthcare Organizations and Leaders”).
III. Top ten reasons to go into health law
To conclude this description of health law and my career experience I have tried to sum up the characteristics and benefits of practicing health law, into a “top ten” list, as follows.
Health law is a growing field, and it will continue to grow despite challenging economic times due its nature and the growing population.
The variety of legal issues arising from the healthcare industry can be overwhelming because it can touch on major fields of law in alphabetical order from antitrust to business to criminal law to drugs to ethics -– and all that lies beyond.
Conversely, it is possible to focus one’s career on a narrow health law matter. For example, Medicare reimbursement codes and applications are based on regulations that can be as complex and voluminous as the Internal Revenue Code. One lawyer acquaintance of mine was the unofficial national “go-to” expert on “medical necessity” to justify Medicare wheelchair reimbursement codes, which are based on patient acuity and co-morbidity as well as the different models of wheelchairs. Lest you think this is trivial, some healthcare entities were at risk for millions of dollars of fines under federal law for failure to code correctly and/or to justify the medical necessity of the prescribed type of wheelchair.
7. Choice of law practice at local, state, or federal levels.
In addition to the federal Department of Health and Human Services, every state and local (usually at the county level) department of health has statutory public health responsibilities that require legal interpretation and advice. Consider the profound legal implications on individual liberty interests of the power to quarantine, which is occasionally exercised by local health authorities when there are outbreaks of measles or meningitis. Additionally, there are laws and regulations relating to safe food, clean air, safe noise levels, weed and debris removal – all of which have touched your daily lives in at least an indirect manner.
6. Variety of practice settings.
Geographically, health lawyers practice in cities and counties in all states and in Washington, D.C. Their practice organization can range from government agency to corporate to law firm.
5. Ability to earn a good living.
The term “ a good living” is relative, but health lawyers who work for government agencies have steady, moderate incomes, as do those who work for private non-governmental organizations. Corporate and large private practice lawyers may have opportunities for substantial salaries depending on the size and nature of corporation or the health industries represented. The salary range is vast: on the low end are public service lawyers such as counsel for the Disability Law Center, and at the high end are the general counsel for pharmaceutical or insurance companies and the private practice lawyers who specialize in mergers and acquisitions of healthcare properties and other large business transactions.
4. Ability to “do good.”
Health lawyers seem to have greater ability to find meaning and purpose in their work, particularly if they are engaged in public health or working for a non-profit healthcare entity. Similarly, there is satisfaction in representing organizations that provide healthcare services, drugs, or devices to people who need them. The overall objective is to help people achieve better health, even if indirectly.
3. Ability to combine law with other fields of interest.
The Center for Law and the Biosciences in itself is an example of the ability to combine interests in the biosciences with law. Additionally, physicians, nurses, and other clinical health professionals can enhance their careers by becoming involved in the legal issues of healthcare. Sociologists, economists, philosophers, and political scientists have also made contributions to health law through studies of efficient and effective delivery of healthcare services that offer the greatest good to the highest number of people.
While collegiality no doubt can be found in most professional endeavors, health law seems to offer greater opportunities because of its characteristics of “doing good” and being part of an enterprise engaged in providing an end product, healthcare, that is a necessary societal service. Based on my experience with national health lawyer organizations, the levels of consultation and cooperation among health lawyers far outweigh instances of competition and conflict.
1. Dynamic, engaging, and never boring!
The marketability, breadth, depth, variety of practice, and opportunities in health law ensure that there will always be interesting issues in health law. The changes in the health industry as a whole, particularly given the implementation of the current healthcare reform efforts, guarantee that health law will be a dynamic area of practice for years to come.
A final word of caution: if you discourse at length to family and friends about your future career in health law, be sure to acknowledge you don’t have the all the answers, but you can promise you will be part of the team who will be working to find the answers.
IV. Career Services: current health law opportunities
If a career in health law interests you, be sure to check with the Center for Law and Biomedical Sciences and the College of Law’s Professional Development Office. The Center and PDO are working hard to identify and facilitate opportunities for students; many SJQ graduates have pursued successful careers in this sector, and these alumni connections might be especially valuable. Also stay tuned for more information about our Careers in Health Law lunch event on Thursday, February 13, 2014 at 12:15pm in Room 107.
Jane Reister Conard, J.D. is a health lawyer/mentor associated with the Center for Law and Biomedical Sciences.