The health law landscape after Dobbs is complex at best. Melissa Scott, Managing Director, The Claro Group, LLC, speaks with Delphine O’Rourke, Partner, Goodwin Procter LLP, about the risks and unknowns for hospitals and employers as they re-examine how to deliver reproductive care and medicine to patients and employees. They discuss the expected and unexpected impacts on the health care industry, how health care providers and other stakeholders can manage risk, considerations surrounding contraceptives, and potential conflicts between EMTALA and state abortion laws. Sponsored by The Claro Group.
Listen to all of the episodes in AHLA's "After Dobbs" series here.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
Support for ALA comes from the Claro group, which is a highly respected privately owned consulting firm. Claro provides analytics and solutions in high stake litigation matters, investigations, insurance claims, corporate recovery, government contracts, and the technology solutions that support them Claro recently bolstered its disputes and investigations practice with the team of healthcare experts for more information, visit the Claro group.com.Speaker 2:
Hello, I'm Melissa Scott, and I'm a managing director with the Claro group. I head the national healthcare consulting practice, which focuses on disputes investigations and litigation support. I have over 20 years of experience in healthcare operations, reimbursement and regulatory compliance, and I'm a certified coder and certified healthcare compliance in addition to being a published author and national speaker on related content.Speaker 3:
Hi, I'm Delphine O'Rourke and I'm thrilled to be here today with Melissa and thank you to a HLA for shining a light on the Dobs decision and its implications on the healthcare industry at large. And we're particularly gonna focus on what healthcare lawyers should be thinking about as you advise your clients. I am a partner with Goodwin's life sciences and health law practice based in New York. And I focus on the women's health and wellness industry practice, uh, very proud, um, to be leading our women's health and wellness industry practice, which is the first in the United States to focus exclusively on issues that impact women, um, and also issues that disproportionately impact women. Um, so pleasure to be here. And I'm also teach at Columbia law school on the business of healthcare and law, and look forward to our conversation.Speaker 2:
Thanks. So it's been almost eight weeks since the do's decision. What have you seen as the impact on the healthcare industry, both expected and unexpected?Speaker 3:
So it's crazy to think in a way that it it's been eight weeks yet. It feels, I think probably for, for many of us who have been living and breathing this every day, um, it feels like it's been eight years. Um, you know, and I think the, the expected is, is the impact on abortion services and anyone who is in that space was tracking, uh, looking to see when the decision, or at least if not tracking with the Supreme court was doing aware that, that this was going to be a potential barrier. We had the leaked decision, which we know is unprecedented and, and really the focus was on, okay, do I provide abortion services or not? Um, are my an am I ancillary to abortion services? And that seemed to have been, um, the audience that was really focused on a potential Supreme court, overturning of Roe V. Wade, what was, I'd say unexpected, um, across the industry. And I think just nationally is the ripple effect across the entire health industry. And what I mean by that is, you know, again, it was just, oh, I'm not an abortion provider, so I don't need to worry about it. It won't impact me. It's going to be very focused on one, you know, one type of, of medical delivery. But what we've seen is it's gone well beyond that. Um, emergency physicians, outpatient surgery centers are saying, what should I be asking? What should I not be asking in my consent forms, tele counseling, or concerned about what's being shared that might not be protected by HIPAA. Um, investors are looking at their portfolio companies and trying to assess risk. And they're saying, we're not investing in abortion services, but what about fertility? What about embryo storage clinics? What about X, Y, and Z? How is this potentially going to impact us fertility clinics, the entire fertility service line? And we can get deeper into that is an area that immediately, um, started reacting. And I think more generally is a chilling effect on patient's desire to get care. And, and that's much broader and we're hearing, you know, anecdotally, but data ready supporting that patients are saying, wait a second, what kind of information, if we know that potentially information relating to abortion can, could be subpoenaed by a private party or government entity. What about other information, maybe it's, you know, STIs or drug, um, you know, drug abuse, what, where could this end and in areas where trusted in health system is already low, again, creating even more concern and distrust that you're now going to have, you know, third parties sort of, you know, this private right of action, where your neighbor could potentially be seeking information about your life, about your healthcare and where you are, and then having law enforcement be involved and, and potential criminalization. So, and as we know, ancy engaged with the health system, and we saw this acutely during COVID and to engage with preventive care and needed care, only exacerbates the, you know, the, the conditions, the disease states increases acuity when those patients eventually come for care and rises associated costs. So it is, you know, sort of an a to Z, if you're not going in for your primary care visit, because you're concerned that potentially could be pregnant. And then your physician would find out that you had an abortion and therefore you don't get your mammogram. You know, you look at the down, down trend effects. Um, so really, you know, it's not only the ripple effect of how it's impacting, but then what could come next and we'll talk a bit about that. And then what can, whether they're providers or hospitals, health systems, pharmaceutical companies, how do they prepare whether it's preparing their physicians, increased insurance coverage, really leaning, leaning into certain research, how can they prepare for the practical response in a post real world and what potentially could come next?Speaker 2:
There's no question that the fallout, um, is complex. What are the main legal areas where you are seeing the most immediate impact of the post real world?Speaker 3:
So immediate, you know, as we saw with the trigger laws is, okay, abortions were, were no longer accessible in, in states that have restrictive laws. And we've heard many stories about, you know, women who are going into get an abortion and were told, no, you can or immediately traveled outta states. So that was the most obvious and expected and immediate. Um, I think what was less expected is that employers, you know, employers who were ready to respond immediately when the decision came down, that so quickly, the conversation moved to what employers are going to do for their employees and the role of employers in this conversation, overall conversation about healthcare. So as you've seen, you know, many employers came out immediately and said, we are going to cover and, and covers taken, you know, variety of different forms, but we are going to cover, um, our employees access to reproductive services, and some have said abortions, some have been broader, you know, we've seen it with travel reimbursement, um, you know, a benefits change. Midstream is challenging. So, you know, we saw many employers saying, oh, yes, I'm gonna change my benefits policy, but that's not done overnight. Um, but looking to see, okay, what are possibilities? Um, you know, whether it is it it's tra it's airplane, you know, airplane, travel, hotel, travel, and food. We've seen such a variety and what you're gonna see next. And we're already starting to see it are other employees saying, well, what about my care? Why won't you cover my care if I have to travel outside of the state, but you are going to, um, cover care for just this select set of services. So we're gonna see, that's gonna continue to play out is within the dynamic of an employer and their employees. What does this mean when an employer for, um, identifies a certain set of services, which have been done by the way for years, where an employer would say, okay, if you wanna get your hips done, we're gonna send our employees outside of the state to a center of excellence and pay for that, that generally wasn't politically motivated or motivated by a view. You know, and this I'm not saying this is just a political issue, but political, ethical, bioethical, all the different aspects to abortion services. So definitely, um, the employer piece. And then, you know, how quickly, if you saw the letter to, to lift, and if, if our audience hasn't please check it out. That members of the Texas legislator wrote to lift with some pretty, pretty sharp words, um, regarding their fiduciary obligation to their shareholders. So, you know, you quickly go from abortion is not going to be, or abortion will be highly regulated in Texas to lift your violating your fiduciary obligations to your shareholders. I think if you look back and, and say, look, if you were at June 1st, 2022 and said, what were the potential impacts fall out of dos? That probably would not have been high on the list. So that's been a big area. Um, again, it's the aiding and Abett, which could apply to other areas. What's the expo. What's an employer's exposure when they, when the employer not only supports, but financially supports and engages in an activity that is considered illegal in another state. Uh, so we can start with abortion, but be in other areas as well. Um, privacy immediately on privacy. And that's an area that's having again, ripple effects on all different types of digital health solutions. So you might have read that that weekend, um, you know, millions of users of period tracking apps, fertility tracking apps, other healthcare management apps, to which users input data, just downloaded, deleted their information. And there were posts on Twitter saying if you have anything in your phone, deleted, deleted, delete it. So that was kind of the hysteria that followed dogs, but it's, it's continued with patients saying consumers saying, what are you doing to protect my data? And it's not only in the form of data that I input. Um, but I don't think there was widespread, uh, appreciation that your GPS, your location, whether it's on TikTok or your phone that says where you've been in, in a given day could be used, um, you know, in, in investigation against you, because it demonstrates that you were at an abortion clinic. So companies what's been remarkable is just the innovation and the response. So, you know, Tia as a company out of the UK, what they immediately or very quickly implemented, um, was a way to have a not anonymous location tracking. So no longer could they tell where you were. Um, so, you know, privacy is a big one and it's going continue obviously, and impacts if you, um, you know, X us. So, uh, a client, you know, in Europe, we're saying, okay, how do we, how is this going to intersect with GDPR, for example, um, what could be their potential exposure if there is a criminal investigation in the us, would it be possible for law enforcement or under a private I right. Of action, um, for their data to be subpoenaed. So, you know, and then the other area, and there are many more that we can talk about is sort of chilling effects on all types of physicians who are concerned about criminal implications and not just physicians who are performing abortions, but are saying, you know, they could be asking about a woman's, um, you know, medical history and a woman could share that she had had a prior abortion. And then, you know, now they're concerned that they could be the target of an investigation because they didn't report it. And because there's so much unknown that adds to, you know, the fear and why it's so important, sort of break it down and say, okay, really? What is the risk? Just like, anytime you have enterprise risk management, what is the risk? What is the probability of it actually happening? Because there's so much misinformation out in, in the universe about this, um, that is creating in some spaces, a bit of hysteria and understandably, you know, but where do we say, okay, this is the real risk. Um, and there's also risks that people aren't, we don't really thinking about, but what's the real risk versus, um, you know, the risk. And again, particularly I think of privacy, um, there's only, you know, there's certain limits also to information that is shared, but how do we explain that and make it clear that certain information can be subpoenaed? Um, but not everyone can access all of your information if there are protections in place.Speaker 2:
So I think you've kind of gone through some of the risks and yeah, and how they impact both providers, as well as companies that are trying to navigate this new normal, what are your suggestions on how to get your arms around the potential issues?Speaker 3:
So, you know, my suggestion is, you know, do it very methodically in that. And I just, and I just did this with an investor client where he said, okay, let's, let's look at your different stakeholders. Look, let's look at your board. What's your board concerned with? Where, where are they? You know, what are their pain points? Um, you know, is it the concern about their public statement? Are they concerned about their stock? You know, because that's gonna be a very different audience than your employees and think, okay, what are your different audiences? And then let's look at very methodically at, at, in this case, those portfolio companies let's look at every company and say, what exactly do they do? You know, and how, how could they potentially be at risk? How do they save information? Is, is, do you have retention policies? You know, look at key areas, do they have data? Let's start with that. Okay. Yes or no, most companies have some type of data. What type of data is it? And really going through it sort of a decision tree, um, on, on, you know, do you have privacy information or do you also have information that's protected by HIPAA? If you have information it's just private, you know, what are your retention policies? What are you doing to make sure that it's secure? Are you updating your, your terms and conditions? Are you updating potential insurance that you would need? So really just going through every, um, service line saying what could potentially be the risk. So, and you could say, okay, with certain areas, it might be obvious. Um, you know, but I was talking to somebody in their, you know, it's an orthopedic surgery service line and in their consent form, their intake form, they asked whether a woman had had abortions. So, you know, that's an example of said, well, why, why exactly know your demographic is not really of childbearing ages. They were focusing on hips. So why are you asking, is that gonna impact the care in any way? Um, and they said, no, we've just been asking that question, you know, forever. Cause it was just in the form. Okay, well, let's delete that question. No need, you know, unless you tell me it's clinic necessary, what are little things and big things that you can do to decrease your risk? I think what a lot of clients don't appreciate and what we don't necessarily appreciate is how often your pregnancy status is asked you go in, you know, you go to the dentist and you get x-rays for, let's say a crown. And if you're a woman, they'll ask you any chance you could be pregnant or are you pregnant any chance you could be pregnant. That's sort of common. You go for a wellness visit, ask you the same questions every time you have an x-ray definitely before surgery. So every time that's information that's logged and starting to look at, say, why are we asking that? And then physicians are, for example, concerned that if a woman came in and said, yes, she's pregnant. And she comes in a month later, you know, um, and says that she's not, what's their obligation. So going back and saying, okay, let's do a risk assessment. Fertility is another one. Okay. Fertility's ripe with risk. So do you own, for example, an embryo storage facility, those I would argue, um, in the anticipated environment, um, will be at risk with, with the personhood legislation, if a, if a person is considered to, um, exist and have full legal rights at conception, then the current practice of, of, you know, freezing embryos could arguably be problematic. You know? So what happens to the a million plus embryos that are frozen in the United States if they cannot be destroyed? So in the example of fertility clinic, okay, where are the embryos? And right after the decision dropped on the 24th, that weekend, there were embryos crossing state lines all over the country. It was, I mean, talk about something that no one really anticipated is patients saying, move my embryos. Um, so if you can't destroy destruct an embryo, what happens to those embryos? You know, do they stay, do the, do the donors, do the parents have an obligation to pay for storage fees for the rest of their lives? Um, you know, so thinking ahead of what is likely, maybe that'll never happen, but as you read some of these statutes and it says, you know, life begins at conception and, and, and doesn't limit that to an embryo that has been, that is in the uterus. So you could have embryos that are outside of the uterus that are cons, you know, have all the rights of a person, um, going down and looking at that risk profile. Um, we touched on employment, you know, really being methodical and thinking, okay, it sounds great to make a statement and say, I'm gonna support my employees. What are you really going to do? What does your, you know, ESG plan say, what does your mission, vision and values? What do they say? And are they consistent if you're making political contributions? Are they consistent with the public facing statements that you were making, you know, look across your communication plan, say, is this consistent looking across insurance? Okay. So if you are, if you have higher risk, if potentially you're gonna have to ensure physicians, um, who could be prosecuted for performing an abortion in a state where it is, uh, legal, but they have, for example, a license in a state where it is non-legal well, what does your insurance coverage look like? So really looking through, not just at the areas that you think are obvious, but looking through your service lines, thinking, okay, what are, and I say, service lines, it could be your clinical trials. It could be whatever it is that you do. Supply chain is another one, you know, we're gonna start seeing supply chain issues or it's anticipated with contraceptives. Okay. How does that play out? You know, so really thinking ahead of the potential implications and how do you plan for those?Speaker 2:
So hospitals, physicians, and fertility clinics have obvious risks that they have to learn to navigate in real time, but companies or employers could choose to take a more conservative approach and delay adoption of more permanent solutions. How, how do you think these non fortune 500 companies should approach this? Should they take a wait and see?Speaker 3:
Well, I think, I mean, there is never a, a single answer to what should companies do. And I've, you know, sort of surveyed the range of, you know, companies that came out, you know, pretty aggressively sporting goods as an example that has been consistent with a well, either privately owned. So they don't have a public dynamic. Um, but that has been consistent. I mean, has come out on issues proactively and has been, uh, willing to sort of have negative business implications or consequences when they stopped selling certain type of gun. Um, they really said, this is part of who we wanna be is we are not going to, um, you know, we're going to use our business platform to, to support certain positions and other and not others. So, you know, that's been part of sort of image. That's been, they've been very proud of it. They've really leaned into that and said, even if we lose customers, um, we are going to be willing to do it. So I would say for employers is, you know, and, and I do a lot of work in the ESG space. It's okay, how does this issue? And you can frame the issue as human rights issue. You can frame it as, um, you know, employee capital, you know, we learned during COVID how critical it is for, for employees to be healthy to companies. Bottom line, let's face it, there's this, uh, new focus on guess what employers really have a benefit to having, um, healthy employees who can come in. And I think that's part of the reason you're also seeing more employer. We can touch on that employer involvement in, in healthcare. Um, so it's say it, it's also a risk assessment. It's a reputational. So it's start with, what does your company sort of now, what are, what are your ESG principles, even if you don't call it ESG, what does your company stand for? And depending what your company stands for, you have an external audience, you have your consumers, um, and then you have your, your board and then you have your internal audience. And that's almost as, as challenging as your external message, because you might have employees who have very different views across the spectrum. And how do you craft a, you know, a, a policy statements, policies, it's procedures, it's, um, support, whatever that support will look like, um, that in your opinion is the way you support your employees. And that's tricky, you know, that's, I think it's much easier to say, you know, we are a healthcare company and we support access to healthcare, which we've seen, which is probably pretty nebulous statement, but we, we support access to healthcare than to say that internally to your employees and their employers here are saying, okay, well, what does that meanSpeaker 2:
For those early adopter employers that have stepped forward or are talking about providing travel benefits to help their employees that might need access to reproductive services? How real do you think the threat of aiding and abetting laws will be applied?Speaker 3:
I might heard that question to you. If, if nothing else, I mean, I think it's real, but if nothing else it's created a, a, a fear and a chilling effect of, well, what if, what if we ate in a bet and it's not just employers, I've heard, you know, of airline companies saying, well, what if we ate in a bet? You know, if we, if they're women traveling on our flights and they're going to get an abortion, what's our risk, same with hotels, same with transportation companies. Okay. And then you start thinking, okay, let's put an employer aside for all those situations, how would they know? And this is when you say what keeps me up at night, how would they know you're pregnant? You know, are we gonna get to a point where it's like, you're, COVID tests where you get on a flight and you prove that you're not, that you're not pregnant, or if you get on a flight and you're pregnant, you have to prove on the way back that you're still pregnant. I mean, some of this sort of operationally, or is every airline going to ask you, you know, not only for emergency contact information, but whether you're pregnant or not. I mean, you know, as, as absurd as it may seem with, COVID, that's sort of where we ended up in and, and I'm not judging one way or the other, but that was the reality you needed to, I mean, still today, you, you wanna attend, uh, certain events, um, in a private setting, you have to prove that you, you tested negative for COVID. Um, so to the employer side, I think what would be more realistic is, um, as an example, you know, you, you saw that Texas representatives sort of targeted a particular law firm for, um, what they called aiding and abetting their employees. The already targeted lift in others is making an example and saying, Hey or, Hey, Goldman Sachs, um, you potentially provided, um, support to, you know, Jane DOE one through 10,000. And as a result, we are going to bring an action against you. You know, this is not my direct space, so I'll leave it to those who, who handle class actions and, and government enforcement, but I'd sit more, something like that than going after, you know, the a thousand employee company here. And there is trying to get some really big ticket lawsuits or enforcement actions to, you know, prove an example or use them as an example. Um, and I think, you know, the companies that were really leaning in on it and said, you know, Goldman was one of them, um, they probably have a plan or if they don't, they should, what happens if, you know, and is your board aligned with this? I mean, usually I wouldn't advise that a benefits question or a reimbursement question go to the board, but this isn't just a run of the mill reimbursement question. Is your board aligned with this? You know, are your key stakeholders aligned with picking this battle because it might likely be a battle now, you know, I get very often, well, do you think they're gonna, you know, throw individual patients in jail that's to be seen. Um, and that maybe we get into sort of some POL you know, political electoral cycle, um, issues, but it's not great press. And maybe it is, you know, there could be potential backlash if there was one individual who was targeted for criminal enforcement, you know, and if you look at the statistics on, you know, the demographics of, of, and, and people of all, all walks of life, um, have abortions, you know, the statistic is one in four women. Um, but when you sort of drill down more into some of these statistics, there are certain groups that are gonna be disproportionately impacted. And that's something that we cannot lose sight of as an industry where, and I know a HLA is very focused on, on health equity, and this is a health equity issue, and many of the people are gonna be impacted, don't even work for an employer who is self-employed and is covered by Medicaid. So part of, you know, all this debate and conversation around employers really is irrelevant for large portions of the, the women who are going to be seeking these servicesSpeaker 2:
From a patient perspective. And I think this could have impacts both to, uh, women and men. How do you see the Jobs's decision influencing consideration for more permanent contraceptive methods such as sterilization?Speaker 3:
Yeah, great question. Because, you know, as, you know, as we all know, it takes two to tango, you know, and there's now a lot of focus or a lot more on, okay, what are the options beyond female contraception? You know, the, the FDA, for example, only lists two contraceptions as male, uh, forms of contraception, one being a condom and one being, uh, a vasectomy. And I mean, you could say overall, the FDA forms of contraception, um, you know, could be refreshed to say the least, because there's a lot of innovation in the space at the same time. You know, I appreciate that the contraception, um, the, the sort of failure, the potential failure rates is huge implications. You know, um, it's not just OD to get rid of my headache. So what we are seeing though, is increased interest from investors, which is usually, I mean, I usually see investors react quickly into male contraception for a variety of reasons, but if female contraception is harder to get, because that's what we anticipate next, um, whether it's IUDs or contraceptives harder to get because of supply chain issues, there's already been a run on contraceptives. There's been a run on plan B, plan C um, run on IUDs. You know, where women are saying, let me get this in advance. Cause I'm afraid I'm not gonna be able to. So a, we have a, you know, supply chain consideration, um, B there's a concern that contraceptives, you know, again, if you take a very restrictive view of, of conception, anything that would prevent conception then would not be permissible, then contraceptives would fall into that category. And additionally, you know, contraceptions taken a particular way can also be used from as a medicated abortion. So I'm already hearing from physicians, pharmacists in, in the restrictive states that, um, and from providers that certain pharmacies are just not filling Contra certain prescriptions. So we know that's problematic. And, and also think we're gonna see a move of, okay, as men sort of wake up to this and say, wow, okay, this is gonna impact me as well, which is noticeably absent. In my opinion, from the conversation, you know, we say this is a women's health issue. Um, it is a men's health issue. It is a family's health issue, um, that we're seeing much more interest in male contraception, particularly male contraception. That's not permanent. So, you know, you, you mentioned sterilization, um, innovation in non-permanent sterilization. So reversible sterilization, it just, hasn't been an area of focus and I think that's gonna change and it's already changing.Speaker 2:
I completely agree,Speaker 3:
You know, and, and female contraception as well, you know, so that's when people say, well, what can I do who aren't in the space? Um, there are a lot of innovators, um, innovative companies in the therapeutic space, the medical device space, you know, even in, in, as we know, you know, contraception related to hormones, um, who need funding, you know, so that's, that's a way that if, if you really wanna make a difference, I, and one way to do it is to fund some of these companies that are bringing innovations to market and making sure that they can do so, um, quickly, The first is that Inala is a federal law, you know, and we haven't really questioned, you know, when you go back to, why do we have Inala? I mean, it was so that every patient could be stabilized or treated, um, the, regardless of their ability to pay. I mean, that was really the, the motivation. Al's not a very long law. It's, you know, you can't deny somebody who's coming through the emergency room care because they can't pay now, you know, it was supposed to be the emergency room. And now the emergency room in, in, in a lot of settings has evolved to a catchall. But if we think about just, you know, sort of pure emergency situations, it was, you can't deny someone care when they're, you know, critically harmed or potentially dying because they can't pay, you know, it's, it's the anti patient dumping, you know, and there were these images of patients being dumped in back doors, you know, of, of major cities in the us, um, because they were uninsured and it wasn't a law that was meant to say, okay, well, you can pick and choose what kind of care you wanna give. I mean, it's pretty clear they have to be cared for, if you can, not, every hospital can, can, can treat a gunshot wound or a multiple gunshot wound. The goal is, you know, stabilize the, the patient and then transfer them if you need to, it doesn't need to be all of the care that they need. You know, for example, if somebody comes in and they need, you know, surgery on their leg, but it can wait until the next day and they can be stabilized, that's permissible under Emala. So really the focus again was, was on, um, on, on payment. And now it's being distorted potentially to say that physicians can then choose which patients they want a tree, um, based on their view of let's say, you know, conception, well, that's not, that's not how it works. And there are other laws, you know, there's the antireligious discrimination act. And we can touch on that. There are other laws where physicians can say, Hey, I don't wanna provide this care. And health systems have addressed that, but it wasn't under Emala. So my concern just generally is it's a federal law and this idea that now the states can Trump, a federal law is, is problematic on a lot of different levels. There's a lot of our healthcare laws that are federal laws, and you might have a mini stark law or a mini anti kickback statute, but it doesn't Trump, the federal law. Um, what concerns me is again, you know, this, that, because, um, you know, but, but that said in reality, if the state abortion law says that a, uh, abortion is never permissible, then yes, that physician who's supposed to be saving lives is, is presented with a real problem of, okay, do I follow this federal law? But then I have a criminal, you know, potential criminal, um, criminal action brought against me under state law. That's not where our physicians should be. They should be, they should be focused on providing care, not on having, um, to protect themselves from lawsuits. Now you might say that's really naive. You know, physicians are dealing with medical malpractice, um, every day, and that's why many physicians are, are leaving the profession, cuz they're saying I've had enough, but this is potentially criminal, you know, so brings it to the next level. So, you know, and then the other thing is, okay, so what can hospitals? So when we think about the risk is when hospitals are looking at their risk, now Amala applies to emergency rooms. So I've had folks say to me, well, you know, if I was at a physician practice or, you know, if somebody's, um, coming in, uh, just for a, you know, a coaching session, okay. So if you're a, you are a wellness coach and you have a patient who comes into you and says, you know, I have hemorrhaging and, and I need an abortion unlikely that the patient would diagnose, but, but you see where I'm getting at that doesn't apply to a, a, you know, a health coach's office and tall is very specific on the emergency setting. So, you know, hospitals are, um, you know, I would advise a hospital look at, okay, well, what is, you know, how many emergency room physicians do you have, who are, and these are for hospitals. This is where I'm getting the questions, hospitals, where their physicians are credentialed in more than one state. So let's say the emergency room is in California, but some of the physicians are also licensed in Utah. So if they did perform an abortion under an emergency, uh, scenario to save the woman's life, could Utah bring a criminal enforcement action on the grounds that the physician is also licensed in Utah? I mean, this becomes like a law school exam scenario. Um, so for health systems to look and say, realistically, how often could this happen with our current physicians? Is this high probability? Do we have five physicians? Do we have a hundred physicians? And if so, what can we do to mitigate their risks and to be proactively supportive if for the hospital to think about, well, what's our physician going to be? Are we gonna defend that physician? If that physician, um, follows Inala follows the standard of care, but is subject to an out-of-state lawsuit, what's gonna be our position in advance and for providers to know how is my hospital going to support me or not support me. And then I know what my risk profile is. So I know there was a lot packed in there, but theta question in a way it has, I'd say more limited application than compared to some other issues, but has a broader impact in that this federal versus state could create complete havoc. Overall, if this becomes a precedent,Speaker 2:
Do you have anything else, stuff being that you wanna comment on?Speaker 3:
No, I think, um, overall it's, this is, you know, we have a tendency to have sort short attention spans because there's so much going on and it's hard to keep track of everything that's going on. And you know, then we're gonna get come into a period of, of elections and there's a recession and there's so much going on at any given time. We still have issues with guns. We still have, you know, that it, it's hard. It's hard to stay on top of all of these issues. Um, the abortion issue is not going to go away and I would say it's only going to heighten. Um, but that we also focus on other, um, efforts to roll back preventive care and, you know, know that's another area where I'm really concerned and it's also not getting much attention, but it indicates that there is a desire. Um, you know, there's a case in, in Texas where they're looking at, you know, um, claims that one of the, you know, one of the considerations is that, um, mandatory coverage under the ACA of preventive services, um, should be rolled back. And that would include everything from a colonoscopy. It would apply to men. It would apply to women. It would apply to contraceptives, to mammogram. You know, that kind of thinking in my opinion, is rolling back with the data supports with the clinician support, rolling back preventive care is hardly the direction that we wanna go in. I mean, we're all working together, whether it's through ACOs or community health, to look at, you know, social, uh, determinants of health, look at the, and look at what we can do to make people healthier, not just treat them when, when they're sick and it's definitely not gonna bend the cost curve. So abortion is part of the conversation and a conversation that is really narrowing in a lot of different ways, uh, Americans access to, to care. And, um, you know, that, that really keeps me up at night and something that we should all be concerned with, um, because it is across the board. So, um, you know, and I would say, you know, as a consultant, you are in, in focusing on pair and provider disputes, you know, I would imagine that, you know, this is a, a drama that is playing out and maybe it hasn't hit you yet. Um, but it's coming, it's the tsunami that's coming. Um,Speaker 2:
You know, so what do you foresee coming in the reimbursement space because it's coming hot net.Speaker 2:
That's a great question. So when we're retaining a reimbursement dispute, whether we're working for the payer or the provider, we always start by looking at medical policy for conditions of payment. Well, you can pretty much throw all those out the window at this point because typically those policies are not set at a state level by major payers, but we see'em more planned specific, or a broad based application. So in exception might be issues like provider credentialing, but with Dobbs payers are gonna need to customize their coverage guidelines based upon state requirements. So this is really a new application from what we've seen historically, which is also gonna then drive changes in the algorithms that adjudicate claims within their payment platform. So we know that for the majority of claims that payers process, they're not reviewing medical records and manually looking at the, the conditions driving the need for that service. And ultimately what deems in a payable service, they've got data points built in their claims adjudication platforms that look at the data on that claim and make a decision that typically aren't then gonna be tailored to the state or where that patient is coming from. So this is gonna drive some pretty significant workflow changes too. So I'm gonna anticipate, we're gonna see introduction of pre-service authorization requirements that haven't historically existed, and this will be particularly challenging for emergent procedures and will contribute to a more protracted reimbursement timeline for providers. So significant policy changes drive workflow changes, and providers should really be actively working with payers to determine, look like, and try to get ahead of their impacts with many of the state laws not being written black and white. This is gonna be challenging for both sides. So even the definition of what counts as emergent and emergent to whom might vary, right? So how will these critical pieces of information be documented in a medical record and then communicated to a payer in a claim? I anticipate that like the application, the clinical setting, the Dobs ruling is gonna create lots of great in the reimbursement setting. So reimbursement disputes will surely follow, and we're just doing our best to prepare to independently and objectively support the resolution to those complex issues when they arise, cuz we all know it's comingSpeaker 3:
Well. I think we're what you, what I'm hearing on the reimbursement side is similar to what we're seeing now in real time is, you know, it's a lot of it we cannot anticipate because there issues of, you know, again, first impression. Um, but the key is anticipate to the extent that you can and it might be anticipating various scenarios, but try to be prepared, everything that you can to be prepared now because this is going to be protracted. And, um, there is so much unknown. So Melissa, thank you for that.Speaker 2:
And you know, with the disputes we're involved in today, we have the benefit of precedent for most things, right. And that's what we'll be missing when we embark in this new territory. So, um, we're certainly prepared and doing everything we can to anticipate, but, um, it's definitely gonna be interesting. And, and we're, I don't wanna say we're excited to see where it goes, but I think we're anxious just like everyone else, um, to see how all of this plays out.Speaker 3:
Yeah. I wonder also more generally and is, you know, this is the beginning of a new era where there will be areas that where there is precedent and then areas we're really getting into the unknown, you know, and where there's gonna be a push for, um, reimbursement of more and more solutions for women's health and wellness. What, what does that look like from a reimbursement perspective? I mean, there's, there's painfully little reimbursement for, for women's health and that's an area that, you know, I know many are advocating for greater reimbursement, but certain, you know, certain things are so, um, so different from what has happened before that it's, it's gonna take a lot of educating and being in gray space to say, you know what reimburse reimburse for pelvic, uh, floor strengthening because down the line that's going to decrease organ prolapse, for example, really a different way of thinking about women's health and, and wellness. So, um, uh, Melissa, this has been a great conversation. Uh, thank you. SoSpeaker 1:
Thank you for listening. If you enjoyed this episode, be sure to subscribe to ALA speaking of health law, wherever you get your podcasts to learn more about ALA and the educational resources available to the health law community, visit American health law.org.