AHLA's Speaking of Health Law
AHLA's Speaking of Health Law
Campus Health Care: What You Need to Know to Protect Your Academic Medical Center
Risk events associated with campus health care pose particular legal and regulatory challenges. Stacy Bratcher, Vice President & General Counsel, Cottage Health, Tom Ryan, Partner, McDermott Will & Emery, Jeannine Taylor, Deputy General Counsel, University of Southern California, and Andreas Meyer, Attorney-at-Law, A.J.M. Firm LLC, discuss the unique risks arising in campus health care settings, the confluence of health care regulations and laws governing higher education, what can happen following a campus health risk event, and some practical takeaways on how academic medical centers can proactively mitigate the unique risks in campus health care.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
This episode of A H L A speaking of health law is brought to you by A H L A members and donors like you. For more information, visit american health law.org.
Speaker 2:Thank you for joining us today as we have a panel discussion on campus healthcare, what you need to know to protect your academic medical center. My name's Tom Ryan, and I'm just gonna give a brief overview of, of why we think this is important. Uh, and then I'm gonna, uh, pass it on to my friend and colleague, Stacy Bratcher, to introduce the panel and to give a little bit more of a framework and a roadmap to what we're gonna discuss today. Uh, why should you be listening to this? Uh, the short answer is, in the old days, health lawyers, you worried a little bit about fraud and abuse, a little bit about medical malpractice, but there's a new danger out there, and it wasn't there 10 years ago. And you may not think it can impact you. I'm here to tell you that hopefully it never impacts you, but if it does, it can be life changing. And what I'm talking about is the growth of abuse claims. Uh, they really started with the clergy cases a number of years ago. They migrated to youth organizations like the Boy Scouts, and then they migrated to sports teams. What they all had in common was particularly vulnerable victims, uh, victims that were entrusting themselves to, uh, asymmetrical information where somebody else knew more about what was going on. Uh, it has arrived at academic medical centers, uh, without naming names. There's at least nine universities that collectively have paid billions of dollars over the last few years. Uh, lives and careers have been impacted, uh, both in terms of patients and students, but also administrators, faculty members, uh, university presidents. Uh, I guess the short takeaway is the world has fundamentally changed in the last five or six years in this country. And this is now something that you have to, uh, prepare for. Uh, and hope doesn't come, but you're prepared if it doesn't come. If it does come. Uh, Stacy, can you, uh, introduce the panel and, and a little bit more of a roadmap of where we're going today?
Speaker 3:Yes, absolutely. And, um, I, I'm certainly sitting up straighter in my chair after, uh, hearing the, the intro from you, Tom. So, my name is Stacy Bratcher. I'm the Vice President and General Counsel of Cottage Health, which is a nonprofit healthcare system located in Santa Barbara, California. We are an academic medical center with residency programs and, and students all throughout our institution. Uh, prior to joining Cottage, I was the managing General counsel of the University of Southern California, and spent about three plus years battling what I describe as a Black swan risk event arising from the Campus Student Health Center. Um, with me today, you've already met Tom Ryan. Tom is a litigation partner at McDermott Will and Emory. He has extensive experience advising on health risk issues in student health centers, and served as coordinating counsel and litigation involving uscs Health Center. Also with me today, um, are Janine Taylor. Uh, she's gen, she's the Deputy General Counsel of U USC and leads the healthcare legal team of Keck Medicine of U usc, which is the university's health system. Janine has advised academic medical centers for almost two decades and is a frequent speaker and writer on healthcare issues. Andreas Meyer is a attorney in private practice where he represents universities and hospitals in a wide range of matters For many years, he has advised clients on civil rights laws and Title IX in particular. Thank you, uh, to this great group of people, uh, for joining me today in the podcast. Uh, just by a quick agenda, we're gonna go through several issues, uh, surrounding campus healthcare risks. We're gonna first talk about, uh, unique risk risk issues arising in campus health settings, both at student health centers and other healthcare services offered on academic medical center and university campuses. The confluence of healthcare regulation and traditional laws that govern higher education, such as Title IX and Cleary. We're gonna walk through the tsunami that can follow if there is a campus risk event. And finally, we're gonna give some practical takeaways on how academic medical centers can proactively act to mitigate the unique risk in campus healthcare. So, Tom, why don't you start us off with kind of giving us the overview of the risk landscape of campus healthcare?
Speaker 2:Uh, uh, absolutely. And, and again, I'm gonna focus on the abuse type cases. Uh, cause what they really reveal quickly is that the risks are at multiple levels of your organization. Uh, first of all, there's the desire to do the right thing. I mean, you are academic medical centers are actually purpose is to help people through research and treatment. And the concept that you could be a bad actor, you're, you're viscerally gonna react saying, no, that's not us. That couldn't happen here. Uh, know that the patient or student, uh, once these claims start to elevate, will feel taken advantage of and abused. Uh, the administration's interest is gonna be either it didn't happen here, or if it didn't happen here, that bad egg should have been removed immediately or was removed immediately. The third is the physician faculty member who often is gonna defend on, Hey, my quality of care was perfect. I didn't do anything wrong here. Uh, and if you walk through the medical records, you won't see anything wrong here. And I'm entitled to certain due process rights and faculty protections. There's a board interest of we need this like a hole in the head. Why are we suddenly on the front page of the local paper or on the news at night? Why is there plaintiff's lawyers beating drumbeats and are regulators, uh, sending subpoenas? And why are local elected officials, uh, asking for hearings? Uh, there's the plaintiff's bar interest. They have now hit seven, eight times around the country. They know how to, uh, exasperate the competing conflicting interests among the campus community. Uh, the government interest, uh, I'll be honest with you, uh, title ix, you're gonna hear a lot about, and the enforcers of Title IX before the end of the day. Uh, that is, you have to be aware that this is a multi-level, uh, event playing out, and you're not in total control. Uh, the public and the media. Uh, everybody loves a good story, sells newspapers. Uh, so really, uh, with all those conflicting interests, you almost ask yourself, uh, what can you do? Well, you try to impose some degree of discipline, not to silence people, but to make sure you have the best information you can as early as you can, but you don't get out in front of things you don't know. Saying it didn't happen here when you don't know whether or not it happened, here is not the right answer. Uh, saying X versus Y. You should speak through one voice, and you should only speak about what you know to be true. Uh, because what the judge is gonna ultimately say, and this will end up in front of a judge, is they're gonna go back and say, this is Watergate. Who knew what, when, uh, your reaction's gonna be? Oh, if it's anything, it's medical malpractice, and we can handle those cases one off some jurisdictions, you may be able to do that. The cases we're seeing around the country, a lot of them, there's nothing wrong medically that's being done in the room. What's being done in the room, uh, goes to more nefarious conduct of what the physician was doing, or thinking about why he was examining young, vulnerable people. Uh, and that's a tough one, going back decades, especially when standards have changed and what is acceptable has changed. Uh, I think now I've scared everybody enough,<laugh>, there's no tension. So let me hand the ball off to the good news people of, of how you
Speaker 3:<laugh>. Well, maybe the good news. Um, so yes, Tom, that is, uh, a really good overview of all the different stakeholders and, um, risks that do crop up when one of these events, uh, is brought, uh, forward. Janine and Andreas, can you, um, give us some more context from a legal standpoint? You know, I think most of our audience are healthcare lawyers and probably folks that represent, um, or work at academic medical centers. And we're all very facile and aware of, you know, traditional healthcare regulation. Um, so Janine wanna hear from, from your PO point of view, what, which laws, uh, come into play. But Andreas, um, this, this is not your average healthcare setting. This is a, um, in, in many, many senses an educational environment, which is gonna be governed by a set of laws that most healthcare lawyers don't really have that much experience with. So, can, can the two of you kind of share with our audience, um, what makes healthcare campus healthcare different than a typical healthcare setting?
Speaker 4:Sure. Happy to. Um, I'll, I'll take us off here. Um, the, there are quite a few laws that apply uniquely to institutions of higher education, including their associated academic medical centers and their on campus student health clinics. These laws can expose an institution not just to significant civil liability, but also to regulatory risk. Uh, the big gorilla in the room is Title ix, which is a federal law that is commonly known as requiring participation opportunities in college sports for both women and men. Um, some people don't realize, however, that Title IX also requires institutions of higher education and their health centers to operate all of their programs in a manner free from discrimination on the basis of sex, including sexual orientation and gender identity. This includes the requirement that institutions take steps to prevent and address sex-based harassment, which encompasses sexual assault and other forms of sexual violence. Uh, title IX is enforced by both the US Department of Education, as well as the Department of Health and Human Services. Both the Department of Education and the Department of Health and Human Services have the authority to suspend an institution from receiving federal funds. Interestingly, even medical centers that would not conventionally consider themselves educational institutions may be subject to the requirements of Title IX as a result of Section 1157 of the Affordable Care Act, which preci, uh, prohibits recipients of Health and Human Services funding from discriminating on the grounds prohibited by Title ix. With respect to privacy, student health centers have different requirements for respecting the privacy of medical records than the conventional HIPAA application. Um, student health centers are generally subject to purpa, which governs the privacy of education records, and this includes the, um, confidentiality of student patient records. What that means is that information can and should be accessed by other university officials with a need to know. This could include the Title IX coordinator, the Department of Student Affairs, the Clear Office, um, and, and requires careful attention. Um, finally, the CLEAR ACT requires universities to report certain crimes that occur on or near their campuses, including their healthcare campuses. Among the categories of crimes that must be reported are, is sexual assault, which is defined to include ready, fondling, incest, and statutory rate. Failure to report these correctly can lead to millions of dollars in penalties and fines imposed by the Department of Education. Janine, do you wanna talk a little bit about medical staff rules?
Speaker 5:Yeah, abs, absolutely. Um, so as if what you already went through wasn't enough. Um, so we've got all of these academic, you know, environmental rules. We've got clarity and Title ix and all of these overlay on top of the healthcare regulatory rules as well. So, when we are dealing with some type of, um, some, some type of issue that, for example, is dealing with, uh, harassment or discrimination, um, we have to look at the medical staff as their own independent body, but also look at the physicians who are employed by your university to say, what are their rights and obligations there, right? So we have this unique intersection, and I'll, I'll give a kind of real life example to, to, to bring this to life a little bit. You know, you have a physician who's accused of bullying or harassing in the or, right? So of course, that could have an impact from the medical staff side that they would want to look at for clinical care reasons, right? And then you also have an issue because this physician, from an employment standpoint, through your faculty affairs department, um, may warrant some type of interview or review, because you don't want that type of, um, type of bad acting to happen by one of your faculty employees. So you've got these two different reviews and investigations that are going on in addition to reviews that be, can be going on through some of the, you know, lanes that Andreas talked about through Title IX or one of those other, um, agencies. And what you want to do is make sure that folks are coordinated and they're understanding what's happening, what's being reviewed, so that one, they're sharing information appropriately. Um, and two, that you don't end up with these conflicting or divergent results that would be really difficult to explain and justify, because you're looking at very, you know, the same set of facts for the most part. And this is where the lawyers really are the lynchpin and critical here, right? Because this is where we become, we call it that air traffic control moment where we're trying to guide folks and let them know what information they can have access to, um, make sure that everyone is informed of what the complaints are, how are they, how they're progressing. And you want to make sure that that's happening for a number of reasons. One, uh, because it does have an impact on operations. Um, remember, this is a, this is a physician, so if they get put out on a lead by the university, who's gonna staff that? Or, right? Um, also, just from a risk management standpoint, you know, these, these are physicians who could be treating your students who could also be patients. And then it's a good check and balance as well, um, to make sure that, you know, all folks are looking at this and they're doing it from the right lens. Um, so making sure that you have your counsel in the right place and in the middle of this is critical, but it's also a lot of pressure for our attorneys. Um, but this is one of the places where we definitely add a lot of value here.
Speaker 3:Janine, I wanted to, um, kind of, uh, Bo have you and, and Andreas bounce a little off each other because it, um, occurs to me that there may be complaints that that come up through the student health center. Let's just pick that as the example. Um, and those complaints could be made against a faculty physician. Andreas went through those, um, higher ed laws that require universities to, um, have environments that are free from discrim, sex-based discrimination. Um, and you talked about faculty members that have rights and obligations, uh, in, in, at the university and the health center. How do those, maybe you two can talk about, you know, those are two conflicting and competing, um, regulatory schemes. Um, how should council, uh, try to work through those?
Speaker 5:Yeah, I'll jump in. I mean, I, I, I would say with a lot of partnership and making sure that you, you know, you have folks, these are two different bodies of law. So you proba you, you're gonna need experts in both, right? So, I mean, as a healthcare attorney, I'm, I'm not intimately familiar with, you know, all of the FERPA rules are OCR R rules, title ix, and clear the way that someone who specializes in this, like Andreas is. So you're gonna wanna bring in counsel in those areas who have that expertise if you don't have it yourself, right? And you're gonna wanna coordinate and see what privacy rules are gonna be, are gonna trump here, right? Because there could be a conflict between is is it ferpa, is it hipaa? And how do your state laws overlay? So lots of coordination and bringing in lots of experts within the law.
Speaker 3:So, Andreas, I was specifically thinking about Cleary, and if you had a complaint in your student health center where, um, a a female student complained that they had been, you know, an exam from a faculty physician, wasn't, didn't feel appropriate, would that, in a sexual way, would that be a, um, reportable crime under Cleary? Or what would be, how would that evolve?
Speaker 4:It could potentially, and what's significant about Cleary is that you have to report alleged crimes, not merely crimes that have actually been convicted by law enforcement. And that can be very challenging. Um, but the rub here, I think, is that for these, these two schemes are conflicting in the sense that, uh, healthcare providers have a very strong sense of patient confidentiality. And that can be very hard to balance with the reporting obligations that an institution may have. And so I think that's really, as Janine said, where you've gotta find specialists on both sides of these, um, equations.
Speaker 3:Well, you're essentially maybe picking, you know, among your favorite children, right? The which regulation, if they're in conflict, how are, how are you going to, uh, what, what trumps essentially mm-hmm.<affirmative>. Um, Andreas, can you talk a little bit more about section 1557 of the Affordable Care Act? Because I think that really does tie through Title IX into, into academic medical centers. Can you talk a little bit more about how that plays out in real time?
Speaker 4:Sure. So this is, um, the civil rights section of the Affordable Care Act, which, uh, at first seems like a straightforward requirement, don't discriminate. But in fact, what the Department of Health and Human Services has done through its rulemaking is, um, extended incorporates Title IX into the obligations that recipients of HHS funding are required to, uh, complete. And what the significance of that is, is that you're looking at this from the perspective of the way the Department of Education may look at it, and they take a very broad approach to determining what constitutes sex based harassment. And the Department of Health and Human Services has similarly indicated an interest and willingness in this area. And so, not only are you looking at, uh, potentially, uh, regulatory enforcement, but there's a, an appetite by regulators to be the first one to the table. I'm the one to hit the, the wrongdoer the hardest, and that really elevates the mistakes.
Speaker 3:Thanks. So Janine, let's build and talk more about, um, so you just, we've described this regulatory soup of, um, higher ed and healthcare regulation. Um, how can academic medical centers get a handle on this? And, and maybe talk specifically to our council, um, on the podcast about what, what they should be looking out for, where, what they should be recommending to their clients?
Speaker 5:Mm-hmm.<affirmative>, I, I, I think the first thing they should be recommending is, is figuring out where healthcare is happening, right? It, we, we know that it's happening on the health side when we assume at the university that the big place that's happening that's come to mind is the student health center, but that's not it, right there. There's, there's other places where healthcare is happening on your campus that people may not be thinking about. So building that awareness. So really doing an inventory and figuring that out. It's happening in athletics. It's probably, if you have a school of dance, there's something ha, there's, there's things that are happening there. And then if you have professional schools, right? Do you have a school of social work, school of dentistry, physical school of physical therapy, healthcare is happening in all of those environments. And it may be hap, it may be happening to your patients, and you may also have healthcare activity that's being, you know, uh, brought out to the community, right? So getting an inventory of who the patients are, um, and where it's happening. And if there are complaints in those environments, where do the complaints go?
Speaker 3:Well, I wanna really build off that, because in my experience, um, the complaints were like mushrooms all over the place without a central, central, uh, oversight body. And I think there's, I, I've talked to a lot of, uh, GCs at, at different, uh, universities and, and AMCs, um, and about their campus healthcare and, you know, given examples like you did, like, Hey, do you know your social workers, uh, social work faculty and students are providing counseling services? You know, who's mm-hmm.<affirmative>? How are they maintaining those records? Or how are those complaints about that care being elevated? Um, so maybe you could talk a little, I know USC has taken some steps to reorganize campus healthcare, but, um, you know, board governance and oversight of, at a, at a high level of these campus health, uh, services seems like a, an area where folks should really put some attention as well. Can you, can you elaborate on that?
Speaker 5:Yeah, totally. Ag agree. So, I mean, when you, when you do have a health system, you know, attached to your university as an A M C, um, you have both, um, you know, you have expertise, but you also have kinda a higher obligation to make sure that you're overseeing and, and, and watching where these things are happening and controlling it, right? So there's no best design or approach from a governance standpoint to centralize this. Um, I think if you look at 10 AMCs, you'll see 10 different approaches. Um, but the key is making sure that there is some form of centralization so that these complaints and issues and reviews are being funneled up and managed in a way so that they go to one central repository. That's really critical. Um, and if you don't have a good grasp of where healthcare is happening, how can you even go to that next step, right? So once you get the inventory, you develop a management or governance structure. And, um, what we've done at U USC is we've leveraged the expertise of our health system board so that for clinical concerns and issues, those types of complaints and concerns are being funneled up to that board for review, because we know we've got the expertise there. Um, that being said, that's just one approach. But, you know, you, you could have a, a separate one where you have these issues going to the university board as well as the health system board. There could be dual reporting, or there could just be coordination at the top. But the key is making sure that you have some type of governance structure, and if it doesn't exist or you're not comfortable with it, then let's flag it, note it, raise it to your board. And, you know, there's lots of examples of what happens and what goes wrong when you don't. So,
Speaker 3:Great. Hey, Andreas, I wanted to also ask you, um, since you've, I know you've handled a number of these Title IX matters with both the OCR R and the H H S O C R, um, can you talk about the importance of having a sensitive exam policy and some of the other kind of structural things that, um, folks advising, uh, academic medical center should c should think about?
Speaker 4:I'm sure happy to. Um, the low hanging fruit here would be to make sure that not only your academic medical center, but your student health clinic has a sensitive health exams policy. And that's something that should be developed with, uh, people clinical expertise, so that it's, um, specific to the kinds of care that, that, uh, student health center is providing. Um, student health centers, although often thought of as kind of a campus infirmary, in fact, uh, do provide care that is, um, risky, including, uh, gynecological, um, services and, and so forth. So, I, I think it's really important that you make sure that your student health center has a sensitive health exams policy, and that it's, uh, the providers in that, uh, department are trained in it. It's also, I think, really important to, um, have cultural competency awareness when you're implementing these policies, because with student patients, you have kind of a unique population. You have international students, you have LGBTQ plus students, you have, uh, students for whom English is a second language, and each of them present a unique population risk that you wanna be cognizant of.
Speaker 3:Great, thanks. Well, I mean, there we could, we could honestly keep talking for a whole, you know, 30 minutes, hour more about, kind of, more practically what what should be done in, in structuring and, and, uh, overseeing risk management for student health centers and, and campus healthcare. But Tom, I I wanna hear from you about, you know, know what happens. You know, no, no risk management programs perfect, best laid plans, um, you know, complaints go different places. Um, as you discussed, when we open the session, you know, the stake, the, the stakes are really large. I mean, I just, on my, you know, scratch pad, I estimate that there's been more than 3 billion paid, um, from AMCs and, and universities related to these kinds of, uh, events. Can, can you walk us through kind of the life cycle of what happens when a risk event, you know, goes, you know, really sharply south and, uh, litigation is brought against an AMC or a university? What, what do folks need to be prepared is gonna land on their doorstep?
Speaker 2:Uh, well, thank you, Stacy. I, I'm gonna be a little jaded here. You called it a life cycle, I'll call it playbook. There's a playbook that's being used around the country, maybe good, maybe bad, but it certainly seems to be working. So you should reverse engineer and know what's coming from the playbook. The first part of the playbook is the media. There will be a story or a news report, either a newspaper, if it's a newspaper, the first story's not gonna be the last story. They've prepared two or three stories, and they're gonna put it out over two weeks. Uh, and you gotta be careful why, how you respond to the first story. Cuz they already have in the can. They know more than you do when the story breaks. And it's very difficult not to immediately try to fill the void by talking about things. You may not know what the answer is yet. The second thing is civil litigation. It's gonna be filed almost immediately. It's gonna be filed by a number of different firms. Uh, you're gonna ultimately have to figure out, uh, do we want to do this as a class action because it's a neater package to resolve a large number of claims? Or does it<inaudible> us to try to do it one at a time? Because it's easier. You can't really bring a medical malpractice case as a class action and you fight it out. Well, if you're gonna face a thousand flames, doing them one at a time may not be the way to do it. Uh, on the other hand, uh, that is a jurisdiction specific focus group specific, depending on the facts. Cuz what's gonna play out in the litigation is they're gonna try to bring in a whole bunch of witnesses to say he did the same thing to me. Uh, and in a class action, by definition, that's easy. Uh, in, in one-off cases, it's a difficult road. Uh, the next thing is legislative changes, uh, in a number of jurisdictions claims are brought, and the actual law is not particularly inviting to it. Uh, and what the plaintiff's bar has been successful to do in, in alliances with other interest groups is just get the, the law changed. The, the most glaring example is the statute limitations in this country, or sex, uh, uh, related abuse claims, uh, uh, in a number of jurisdictions have, have simply, uh, uh, been removed as a bar to bring these type of cases. Uh, uh, and that cuts across parties. I mean, on the one hand, people understand statute limitations. Is it really fair to bring a claim 20 years ago when you have no witnesses to defend? No political party on either side is going to be pro uh, abuse. So thinking that the legislation's going to help you out, uh, is, is, is a risky, uh, maneuver. Uh, the next thing, investigation by the government, uh, a whole bunch of different government entities, uh, title IX and OCR R in both of'em are gonna be crucial because they view their role as different and your due process rights vis-a-vis them. Uh, they are hesitant to assume that the general counsel's office should be involved in any of this, and they're not sure they actually agree that there's an attorney-client privilege. Uh, and what they find credible or not, you just have to live with. Because once they give their report, and I've never seen a report that exonerated the entity, it's going to be used against you viciously, both in the court of public opinion and in the actual, uh, uh, courthouse, uh, criminal charges. Uh, good luck getting the doctor to actually defend his medicine, uh, in a civil case because he's probably gonna face a criminal case and his lawyer's gonna make sure he doesn't talk. And, but he's also not gonna want to get dismissed outta the civil case for a very simple reason. He's in the civil case and he's not talking. He can at least get discovery from everybody else. Well, you don't want to be sitting at the same table with him after the first month when you decide there's something here that doesn't really smell right. So there's a number of different tensions here. You know how I mentioned tensions in the beginning of the case, the plaintiff's lawyers know each one of them, and we'll try to divide and conquer. Uh, for example, do you defend the faculty member? Well, if you don't, it's open season and good luck with your faculty if you don't defend them. On the other hand, if the opening headline is university spending hundreds of thousands of dollars to defend alleged abuser, well, that has its own costs, doesn't it? Uh, the board, the board's gonna want to do an internal investigation and get it out there. Well, your insurance carriers are gonna view it a little differently. If you waive all your privileges and get it out there, you have not helped them defend the cases, then they're gonna say you paid the money yourself. Uh, uh, many people are in love with internal investigations. Most internal investigations in the past were by public companies because there's benefits to doing them. If you're regulated on a public exchange, uh, with the government, I'm not sure why a, uh, charity would do it. Uh, and waive the privilege. Uh, uh, next plaintiff's bar, uh, they think it's a million dollars a claim, and they want as many claims as possible. They realize at the end of the day, there's probably a number of claims that really all things aside, if you hear the facts, you say to yourself, how did this happen? And those claims are largely, uh, indefensible, but there's gonna be hundreds of claims that you listen to the facts and you say, I I don't get it. What's going on here? This is where you have to correct for your own bias. You believe in your own entity. You have to use focus groups and find out what the outside world will say about the same facts. Don't drink your own Kool-Aid. I think I scared you even more<laugh>. So now I'll be quiet again.
Speaker 3:Yeah, I, I, you know, yes, I, I will describe, based on my experience, it felt like just a tsunami that was just unstoppable. Uh, and it, it was all the elements that you described. Um, I think that, um, uh, you had the media, which was an immediate platform. There were, there's a lot, a lot of interest in these kinds of stories for various reasons. Um, and then the regulators, uh, all descend at once. Grand jury, uh, uh, O c r, the medical board, h h s, um, licensing, everybody is, uh, has a role to play they feel. Um, and then, uh, it's just really hard to get out from under that. And the, the, you know, the lit the plaintiff's bar, you, you phrase it as being jaded, I'd, I'd agree that I, I'm jaded as well, but they were very, they are very successful using these different levers to, uh, build a narrative around what did or didn't happen. So I really, really, I want everybody to avoid one of these situations if they can<laugh>. So I think, uh, maybe we'll tie this up with, um, kind of going around the, the, the, the horn, so to speak. And, um, all of us sharing some takeaways and, uh, practical steps that folks can do, um, lawyers advising, um, colleges, universities, and academic medical centers to avoid this. So, Andreas, let's start with you.
Speaker 4:Sure. I, I think the best advice I could give would be to ensure that your healthcare folks, including, particularly your risk management people are trained in the requirements of Title IX and the Cleary Act, that they're sensitive to it and pay attention to it. And equally that you're, uh, campus side Title IX personnel are familiar with healthcare because there tends to be, I think, a gap between those two things. Neither side really understands the others. And with respect to student health centers in particular, um, you may just ask the simple question of who is supervising my student health center at my university? And oftentimes even with an academic medical center, it's not supervised by, uh, people with clinical experience. And it's instead, uh, supervised by a dean of students or a provost or somebody who doesn't have the same sensitivity to the risks that apply in, in the healthcare setting.
Speaker 3:Yeah, I'll just build on that real quick. That would be my takeaway. Um, and also building on what Janine said earlier about, you know, you must know where healthcare is provided on your campus. That is, I think, an imperative and something that in-house lawyers in particular can really advocate, uh, for that step to be taken. And then once, you know, you must have a, I would say, an oversight body that has healthcare experience. I think it's, um, really risky to have, uh, you know, the dean of students or the provost who may be an English professor or an engineer, or whomever that's overseeing a healthcare, a regulated healthcare environment. Janine, what about you?
Speaker 5:So, there's a couple of things, um, from a more, kind of like a, a really tactical, um, approach. This, I, I'd say it sounds old school, but have a checklist, right? Um, have a checklist of who internally you would need to notify when these types of things happen. And also put on there those regulatory agencies who you might have to give notice or disclosure to, just so you can consider all of them, even if you're not going to consult with them or make them aware, um, you want to have it top of mind and also have a panel of experts who you can consult, right? If, um, if you don't have someone in the house who you know, who you could consult with on whether alar is triggered, um, you know, have someone on the outside who you can consult with, have all those folks ready to go so that you're not scrambling when this happens, so that you know who the, who the outside council is that you want to go to, and maybe even have two, right? Um, it, it doesn't hurt. Get a second opinion. It may not be the saving grace, but it'll help you inform and justify your decision making.
Speaker 3:All right, Tom, you've kind of sprinkled some takeaways throughout the, the session, but, uh, maybe you can give us a couple, couple zingers to, to take us home.
Speaker 2:I, I will give you four, two before the storm hits, I would, and these are based on, uh, unfortunately, real world experiences. Beware the loan ranger, the healthcare provider who's out there by himself or herself, and nobody who's at their rank or above is looking in. Uh, it's easy for, uh, somebody on their own to migrate off the path. So you have to watch for the loan rangers and make sure they're getting special attention of are there any problems or complaints coming in about them. The second thing, and, uh, you know, I'll defer to others, I don't think it's enough to investigate complaints anymore. I think if there's critical complaints, I know there's due process and everything else, but, uh, you'll be charged with cover up and everything else. It has to be investigated and take some type of action, even if the action in progressive discipline is not a whole lot, uh, if there is some discipline, what you'll find out is either the behavior's gonna stop, or if it's still happening, you really do have a problem. So I would say investigate an act. Uh, uh, the, the other two, which is the storm has already hit, uh, they will drown you by mixing in the good cases with the bad. You have to tactically find in your jurisdiction how to titrate out the cases, uh, so that you pay for the ones that are, uh, problematic, but you don't pay a million dollars on, on average for claims that are really less compelling, is the way I would phrase them. And then the last thing, focus group. Focus group focus group. Don't drink your own Kool-Aid. Constantly run things by focus mock trials to see how it works. It's an inexpensive way of finding out how people, uh, are gonna respond. Because we can sit here saying, we did well, we do this. They're gonna go in and say, this little kid got abused. And that's compelling, uh, without even knowing the facts. Okay. Uh, I ruined everybody's morning
Speaker 3:<laugh>. No, this has been a really great discussion. And I think, uh, again, just it's a very, uh, I think Tom, when we worked together, we called it the multi-headed hydra. I mean, there are just, it's just such a multiple layered, uh, rich environment of regulation and risk. So I wanna really thank our panelists, uh, Janine Taylor, Andreas Meyer, Tom Ryan, for a great conversation.
Speaker 1:Thank you for listening. If you enjoy this episode, be sure to subscribe to a H L A, speaking of health law, wherever you get your podcasts. To learn more about a H L A and the educational resources available to the health law community, visit American health law.org.