AHLA's Speaking of Health Law

Conversations with Health Law Leaders: Diversity in Health Law Practice

July 16, 2021 AHLA Podcasts
AHLA's Speaking of Health Law
Conversations with Health Law Leaders: Diversity in Health Law Practice
Show Notes Transcript

David S. Cade, Executive Vice President and CEO of AHLA, sat down with three prominent health law leaders on May 25, 2021 to discuss how we, as a community, can improve equity in health care and health law practice. In this episode, Vanessa A. Scott, J.D., Partner and Chief Diversity & Inclusion Officer at Eversheds Sutherland, speaks to the business case for diversity in health law practice. Scott helps large employers design competitive benefits packages that attract and retain personnel.

Watch the full conversation here. Access full video and audio recordings of the proceedings at americanhealthlaw.org/racialdisparitiesinhealthcare.  

To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.

Speaker 1:

On May 25th, 2021, David Cade , executive Vice president and C of a H l a , interviewed three prominent health law leaders about how we as a community can improve equity in healthcare and health law practice. This three part series presents each recorded interview, full video and audio of the proceedings are available@americanhealthlaw.org slash racial disparities in healthcare .

Speaker 2:

Welcome to Vanessa. Thank you. I'm glad that you're here with us today. So let's get started and I'll just ask you to just briefly introduce yourself. Um, tell us where you work, what you do, what's your title?

Speaker 3:

Uh , my name is Vanessa Scott. I am a partner at Everett Sutherland us and I am in the Washington DC office. I'm a partner in the tax group, but I specialize in ERISA employee benefits and executive compensation. And in addition to being a partner there, I'm also the Chief Diversity Equity and inclusion officer for our US offices.

Speaker 2:

You are engaged in a wide variety of issues and activities. And just to , to set the stage, for my purposes, an ERISA lawyer is a healthcare lawyer. Yes. So I'm glad you feel that way.

Speaker 3:

And so I , I do, I specialize in health and welfare plans. Good .

Speaker 2:

And that is our world. Okay. Um , and so I want to talk a little bit about that, and I also want to talk a little bit about your role in the firm with diversity inclusion, because that's not a common role I see in a lot of firms. Mm-hmm. <affirmative>. So , uh, invite you to share a little bit about , um, how that role was developed mm-hmm. <affirmative>, why was it developed? Yeah. And what do you do in that role?

Speaker 3:

Yeah, sure. So , um, I've been in the role for about five years, and we had a chief diversity , um, officer prior to me. It was our first managing partner, actually was our first Chief Diversity Officer. And so , uh, once he rotated out of the managing partner role, he took that role for a couple of years. And then my , um, my current managing partner decided that in order to integrate our diversity strategy with our business strategy, we really needed someone who was an equity partner, someone who had a financial stake in the business, and someone who could really sort of drive our diversity strategy with our business goals in mind . And so , um, I did take on the task At the time, I knew nothing about diversity strategy. Um, I told them the only thing I know about diversity is that I'm black and a woman , um, but I'm going to learn. And so I spent a lot of time studying and just sort of looking at lots of different AR outside of the legal industry and within the , the legal industry. And just taking some time to take courses and just do a lot of due diligence around what it means to develop a diversity strategy, what it means at a corporate level, what it means means at a partnership or law firm level. And really how I could be a support system internally for our attorneys in particular, but our broader staff as well. And in addition, how I can be an advocate for our clients who are more often seeking diverse teams. And so making sure that we have the right talent to be able to serve the client's needs in that aspect has become a key part of my role. But also it's been kind of making sure that the partners understand exactly what their clients are looking for when they say they're looking for diversity, or they say they're looking for diverse teams that isn't as evident as it might seem like it is to everyone. And so doing a little bit of , uh, translating sometimes and doing , um, a little bit of educating is also a , a big part of my

Speaker 2:

Role. So a again, in the role you play, not only with your firm, but with your clients mm-hmm. <affirmative>, I'm , I'm , I'm, I'm, I'm really excited about meeting you and having a chance to talk to someone who has this role in a law firm. Yeah . Which , as I said, is not a traditional role. So I don't know in your world if you're seeing other law firms follow learn mm-hmm. <affirmative> and adopt the strategy that you all have. And if not, this is a , an opportunity for us to get the word out. Oh, absolutely. Yeah . And to elevate what you're doing mm-hmm . <affirmative> and help folks understand that it's important to do this and that it, it's worth the effort. Cuz I suspect mm-hmm . <affirmative> , it wasn't easy.

Speaker 3:

No, it was not <laugh>. And it's still the , it's not easy, but it's fun and it's worth it. Um, I'll talk about sort of my role. I think of my role as being twofold. There's an internal part to my role and there's an external part to my role. So let me talk about the internal role first. And I think that was 90% of the role when I took it on. I think now the external part of my role is maybe 50% of my role has changed dramatically in the last few years. So the internal part of my role is really coming up with our internal strategy around diversity for our attorneys. Primarily, I'm starting to work more with our core professional staff as well, but it's really focusing on recruiting and retaining and helping to develop our women and diverse attorneys. So it's making sure, first of all, that we are developing a pipeline. So we have a , a program called Eversheds Sutherland Scholars, where we reach out to different undergraduate institutions and we focus primarily on HBCUs. We find people who are interested in law school. We put them through a six week course , uh, sort of a crash course in law school , um, with a, with a Emory Law School professor. And kind of give them a sense of sort of what it's like, because a lot of times people who have been very successful in undergrad don't really know what it takes to be successful in law school. And so we sort of ease their way into law school and we sort of, we , we call it demystifying what it takes to be successful in law school. So part of my strategy in developing diverse talent and bringing in diverse talent is about developing the, the right pipeline. That's our pipeline program. So the next thing that I also do is I sit on the , uh, hiring committee. So I am in charge of making sure that our hiring committee is always considering different, what I call pools of talent. We are fishing in the right pools because sometimes the talent is out there, but you just aren't looking in the right places. And what that means is that you're missing out on talent, right? If you're fishing in a third of the pond, there's two thirds of the pond that you really aren't reaping any benefits from. And so making sure that we're fishing in the entire pond for talent, so to speak, and that we are looking at who we're bringing in for our first year class and, and with our lateral hires as well. Then the, another part of my internal role is also supporting the staff or the attorneys once they, once they're there. So if you bring in great talent and you don't recognize that that talent maybe needs to , um, understand sort of what you, what exactly what the levers of success are at the firm, then what you're gonna do is you're gonna bring people in because they're different under the diversity and inclusion banner. And then you're gonna fire them because they're not like you. Right. And that's exactly what we don't want to do. So part of that is sort of training our partners and our senior associates to understand that success can look a lot of different ways. It doesn't have to look exactly like this partner did it or this associate did it. It can look a lot of different ways and really start to think about what really delivers the product that our clients are looking for. And how can people get to that perhaps differently? That's a portion of diversity. I think it's loss . Um, you bring in people who look different or may sound different, or may maybe from different backgrounds, but you aren't thinking about kind of how success looks in their world and how they can bring a different view of success to what you're trying to deliver to the client. So my job is there , there's an education portion of that and there's a development portion of that. And we have various , um, diversity sort of structures and , um, programming that drive that. Some of it's education, some of it's community building. So one of the things that I did was , um, develop affinity groups. And you do see a lot of law firms now have affinity groups mm-hmm . <affirmative> . And so we have affinity , affinity groups that are community based that sort of bring people together from various diverse backgrounds, give them a community of people to kind of help develop them and build them. But also they're a resource for the firm. So to the extent that there are questions about, for instance , um, we had some questions around , um, LGBTQ um, benefits in our health plan. We went to our LGBTQ affinity group and they were a resource to, for the firm to say, this is what you should be doing. These are the types of benefits that, you know, are sort of standard in the market. They helped us sort of develop that. So there , those groups are also resource groups for the firm. And it also makes sure that our diverse attorneys understand that they, they have a vested stake in not just sort of delivering billable hours, but in how we grow and how we develop as a firm generally. Because firms that don't do that are going to die on the vine, quite frankly. Right .

Speaker 2:

So one of the things that I found very interesting in this journey, and I don't think you use this word, but the word is acceptance. Mm-hmm . <affirmative> , a line that you were working against was in your role, you're doing a lot of outreach and training and bringing in the talent mm-hmm . <affirmative> . And you're also working internally, again my word mm-hmm . <affirmative> acceptance to get the existing structure, the existing partners to accept these individuals for who they are. Mm-hmm. <affirmative>. And you're defining success for the client mm-hmm . <affirmative> in a different way. Right.

Speaker 3:

Yeah.

Speaker 2:

And how is that working? Cuz it's, I think many firms you're right. Are failing to do the second part Yeah. To work on internal acceptance where they're bringing them in and they accept them at that point and expect them to do what they do Right. The way they did it. Yeah . And when that doesn't happen Yeah . Then they're fired or they transition out. So talk to me a little bit more about the work you're doing and you have done for the larger acceptance so that individuals who are coming in are feeling valued and the clients are also feeling supported.

Speaker 3:

Right. So I think that that has a lot to do with , um, talking to partners about why you want diversity. Right. And having everyone sort of step back and really think about what does having people who look different or from different backgrounds, what does it really bring to us? And what it really brings to us is a different way of thinking, being more creative, being more innovative. That's what we're trying to get out of diversity. We're not just trying to get people who look different. That aspect is what I call, that's what I call Noah's diversity. Right. You've got two of these, you've got three of these, you've got two of these, okay, we're diverse. That's not diversity. It's really about bringing in different perspectives and really thinking about how do we really innovate for the client. Thinking about if you're trying to get one to 100, there's lots of ways to get to 100. And bringing in diverse people helps you think about new and different ways to get to 100. So that's sort of the way that I explain it. I think that what we try to do as far as boots on the ground type efforts is we really look through, for instance, performance reviews. Right? And we look for words that sort of trigger that I'm uncomfortable because this person is different, but that really don't speak to the person's ability to give the client what they want and what they need. Right. And so we try to make sure, for instance, and I think it's very important in performance reviews, right? Because sometimes there are just trigger words that you'll see over and over again when people are a little bit uncomfortable with being around someone who doesn't kind of align with their background or align with their worldview. And you'll see certain words pop up. And if that continues over time, an associate will find themselves in a position where they'll go, I'm getting great hours, I'm doing great work. Why am I not integrating into the group? Why am I not getting these great projects? And when they can't answer that question, like you said, that's when they transition out and you lose that talent and you lose that diversity. And so really having people think about, well, why did you use this term? And what is it that this person isn't doing well? Okay, but is it still achieving what they need ? And, and really making people think through, oh, I can't always hire in my own image and I can't promote in my own image all the time either, because that really isn't getting to what we need to do around diversity. So it's a, I'd say it's a slow but worthwhile process. The reason why I have enjoyed it so much is because I think that our firm really has the infrastructure to do that. We have the type of culture where people go, oh, didn't realize I was doing that. Alright , let's think about it a little bit more. And that's really the culture that you need. And I think that it took, there are baby steps along getting to that culture. I think it does start with a little bit of the sort of training 1 0 1 that everyone sort of at this point kind of size and goes, oh, we have to go through this diversity training, but you can't just hop into doing some sort of really , um, you know, heavy duty D D N I equity training work. You kind of have to bring people along. And so we've done , we've gone through that process , we've brought people along, and I think that we're at a place now where people can see, okay, you know what, maybe the way that I'm approaching how successful this person is, or what I'm looking for out of this person, maybe that's just me trying to look for someone who's more like me and not necessarily trying to make sure I'm developing the best lawyer or giving the best product to the client. And so that's where the real kind of magic happens. And that's where I think the work really is at the law firm level.

Speaker 2:

And it sounds magical. And the one of the reasons I I wanted to continue to give you an opportunity to share is I'm hoping that as folks listen to you, if their organizations firm or no firm aren't doing this or haven't done it mm-hmm. <affirmative> , that they will realize that they can Yeah . And that they should. Right. Uh , and it's not just as you said, bringing folks in mm-hmm . <affirmative> , but it's the cultural change that I hear Yeah . That you're describing. And I know that wasn't easy.

Speaker 3:

No. I think that, you know, we, we , we , I think all law firms start from a place of we have a good culture, we have great people, we have smart people, right?

Speaker 2:

And you're successful

Speaker 3:

And we're successful. Right. Trying to marry that into, we're not doing d and i just because we're good people. We are doing it because we're good people, but we wanna be more successful. In fact, we wanna be more successful than the next firm. And if the next firm isn't fishing in that talent pool, then we're gonna fish in. We're gonna bring that talent in, we're gonna make that talent successful, and we're gonna give that talent an opportunity to deliver for the client. And so I do think that firms want to do that. One of the things that they have to make sure that they do is that you have to have an advocate who's at the table during the, the business discussions. You have to have someone who is sitting in the partner meetings, who is listening to the proposals, whether it's policy or structure or whatever it is . And that feels empowered because of either their role or their position of the , at the firm or the culture of the firm to raise their hand and say, Hey, have we thought about this? Hey, are we really considering every single person in the firm for this leadership position that we can really, and putting in systems and structures so that you start off raising your hand. But after a while , it gets to the point where I don't have to be in the room. Someone else is raising their hand and saying, Hey, you know what? We're looking at five guys for this new leadership position. Are we really looking at everyone we should be looking for, looking at? Or, you know, we've interviewed 26 people for this summer class and 85% of them have been male, or 85% of them have been white. Maybe we should start thinking about what the law school classes look like and making sure that our pool of people that we're interviewing looks a little bit closer to those classes. And I think that that can be a c change , just sort of depending on the culture of the firm. But I think that we've had some successes. And so I think it makes it a little easier when, one, you see the successes and two people understand that this aligns with your business goals. Right. DNI is not about not giving people feedback or being afraid to give black and brown associates , um, some, some , some real sort of critical , um, comments on their, on their work. It is really about making your firm more successful and more profitable because you're expanding the pool of talent and you're really delivering on the promise of client, not just to give them a great product, but to give them a great product from a diverse team.

Speaker 2:

So I want to take you back, I love the celebration of the successes that you all have, and I'm sure it is translating into the client and into the boardroom. Mm-hmm . <affirmative> , I wanna come back to that. But I want to take you back to help bring us through your journey. Okay. I want to take you back to the beginning, whether that's five years or 10 years mm-hmm . <affirmative> , and here's the point to begin to educate individuals about the benefits mm-hmm. <affirmative> that you've just described. The term that we all use is the business case for diversity. Yeah .

Speaker 3:

Right?

Speaker 2:

I want you to go back and talk to me about the journey and whether you or your predecessors, the managing partner was in that early phase mm-hmm. <affirmative> of educating the rest of the firm in this case about the business imperative. And the reason I pause for that, which is one of the reasons it's so exciting to talk to somebody like you, when I hear the phrase business case four mm-hmm. <affirmative> , what is also oftentimes not said is the business case against ah . Cause if you are for Yeah. You have the other side of the coin is against Yeah. So it's oftentimes not said in the room, but one of the reasons I think we, we have folks talk about the business case for is to counter the business case against. Yeah. So take me back to the journey and help me understand how you worked through that. Right. Okay. To to begin the process to change the culture.

Speaker 3:

Sure. A absolutely. I like, I I think that it's, it , you're , you're quite astute to understand that it is sort of a , a step-by-step process, right? Um, I think that because I came into the role when I was a fairly young partner , um, one of the things that I wanted to make sure that I was doing was being a good steward of the firm's resources around diversity. So I knew kind of what I thought we should do. I knew what I thought our gaps were, but I really needed our professionals to come in and tell me. So the first thing that we did was a full-blown diversity assessment. So we had someone come in, we , um, did focus interviews, we did surveys, we did one-on-one interviews. And one of the most important parts of that process was interviewing our regretted losses. So regretted losses are associates or partners who are female or diverse, who left the firm within the , the prior five years prior to our assessment, reaching out to them and talking to them about why they left, what would've kept them there. Um, and some of the things that they've experienced since that might benefit us as , as we're kind of growing and developing as a firm. And as far as the business case is concerned, the way that I explain it is that, listen, we are spending hundreds of thousands of dollars develop associates, right? And if you're gonna spend that money to develop them, only to lose them because you just aren't aware of the way that they're delivering on success, you are not going to be here in 50 years. <laugh> , your firm is going to die on the vine. Right. Any company that doesn't evolve, it was sort of like, what one thing that I saw with , um, in corporate America is , um, when millennials were starting to come into the workforce, corporate America shifted and went, whoa , we've gotta give millennials exactly what they want because we need millennial talent. Right? Why do they do that? Because they didn't wanna die on the vine. You need the talent. You've gotta go out there and make the talent want to be the place. And so the process that we were going through, as I described, it was a way to make sure that we were going to be the place where people were like, this is my great opportunity. And they didn't see a great opportunity over at law firm, Dewey Cheatham and how , or at this in-house department, like this was the place where I had my, my , my best opportunity. But in order to do that, we needed to figure out exactly where from a professional standpoint our gaps were. So that involved bringing in a consultant and going through a pretty rigorous process. I think it took about six months. Um, and then they delivered out a report and said, Hey, hey, these are the things that are great. These are the things that you really need to work on. These are the things that your , uh, regretted losses are saying may have kept them there. And then you drive your resources with to , to match that. What is it that you're doing? Where are your gaps? You put your resources in places that will fill those gaps. But I think you also have to look at your firm's business strategy, right? And I think that's why it's important to have a partner who is at the table and is engaged in what the firm is doing from a business and growth and financial perspective to really understand that. Because if you don't align what you're doing on the DNI strategy side with the firm's business mm-hmm . <affirmative> side, then you're going to have skeptics who go, I , that diversity thing is for women and diverse attorneys. It's not for me. No . This is for you because you also want to be financially successful. You want to be more profitable if you are going to be more profitable. There are talent pools out here that you are either not tapping or that you are allowing to leave and that is causing you to be less profitable. This is what we're trying to achieve as a firm. If you wanna try to achieve that with the best talent possible, this is the way you've gotta grow and develop that talent. And you've gotta go out there and get that talent and make it the place that they want to be.

Speaker 2:

So h how about the transition to bring in and help your clients understand what you're doing and to see the value that your model is bringing to them?

Speaker 3:

Right? I , yeah, I There is, or at some point there , there , there are those discussions around, well , my client doesn't care about diversity, right? And so I don't really have to worry about that. And making people understand that we care about diversity, right? It's part of the way that we are going to continue to , to succeed as a firm. And so your client may not care about our billing practices, right? But if we don't adhere to our billing practices, we won't be here for very long. Will we? It's the same type of thing. This is a part of our internal systems and structures. And so even if the client is not sort of pushing for a diverse team, we wanna make sure that in 10 years or 15 years or 20 years, when this partner is ready to transition this work over, maybe the client does care about it then, or maybe the client wants to make sure that whoever that work is transitioned to is the best possible lawyer and not just the best possible lawyer that looks exactly like the lawyer that they have right now. And so, in order to be able to do that, our partners have to be very committed to ensuring that they are having diverse teams work on their matters, interact with our clients , um, and, and making sure that from a succession planning perspective, we are make , we are have , we are developing a pool of people who are the very best lawyers. Not just the very best lawyers who have been just like the last five lawyers on this matter, but the very best lawyers possible clients will see that it, it's not even a process of does client care or does a client not care? But we've gotten to a point now where I think our biggest clients, our sort of top 10, top 20, top 30 clients, there are very few clients in that , on that list where you could say they don't care. Not only do they care, but they're telling us exactly what they want to see. They want to see who's on their matters on a month by month basis. They want to see who do you have in the pipeline to succeed, who's getting credit for the manners within the firm. They are getting very, very sophisticated about questions. It used to be, how many people do you have at the firm that are diverse? How many women do you have? Were diverse now. It's what types of programs are you putting in place to make sure that the diverse people that you're putting on my team stay there and that they're going to be ready to take over these matters in, in 15 years. And so even if a particular client is not saying, well, this is exactly what I want, and this is what I think about diversity, we've got to remember that our commitment is always giving the client the best possible talent, the best possible product. And in order to do that, you can't look at a group of people this small. You've gotta really expand that group. And if you expand that group, you should have some diverse individuals, women, people from a lot of different backgrounds and a lot of different perspectives. That's the only way you're gonna make sure that you're fully delivering on what the client wants.

Speaker 2:

And it sounds like a key to just put a label on it, is that accountability, the clients are not just accepting the good legal work that you're giving them, but they're also cycling back accountability. Yeah. And there's transparency in this also. Yeah . And the thing that I hear in your comment that transcends all of this is opportunity, opportunity for everyone. You talked about the pool, right ? The pond.

Speaker 3:

Exactly.

Speaker 2:

Bigger pond, more opportunity. Exactly. That is, is is your key to success.

Speaker 3:

That's what makes it sticky, right? For, for people who, I remember going to my first law firm and being like, there's nobody that looks like me in partnership ranks. And , um, I don't know what the path is going to look like to , to get there and, and thinking this is not going to be the place for me. Right. I didn't see the opportunities. The opportunities may have been there, I don't know. But I really didn't see them. I really didn't see how to navigate a path. And diverse in women attorneys I think in particular, are more apt to stay at a organization, whether it's a law firm or company or, or what have you. When they say, okay, you know what? I can see a path to the next level, or I can see that someone else has made it there. We're less likely to sort of leave it to the judges so to speak and say, oh , you know what? I still might be able to do it. I don't know. We're just less risk adverse . And so if you give people more opportunity by expanding the pool of talent, what happens is people start elevating and they start, you see more women partners, more diverse partners, and more of the associates were saying, oh, I see how I could get to X place or y place. And so that's one of the things that I'm really trying to make sure that we think about. Not just when we're thinking about internal development and advancement, but also lateral partner hiring, which is tough for, for any law firm. But a lot of times law firms will lateral partner hire based on someone saying, Hey, you know what? I know a great person over at xFi that I came from, and they're looking for something new. Why don't we hire them? What ends up happening is that you have a lot of lateral hires that look like the people who are already there <laugh> . Right. And if we aren't, if we don't have a ton of people from 10 or 15 years ago who are diverse in women who are ready to elevate to partner, we've gotta have lateral hires coming in to give more of an sort of opportunity pool to the younger associates because 50%, 60% of our incoming associate classes now are diverse in women. Who are they going to look to if we don't have the lateral partners coming in, in addition to the partners advancing , um, through the firm who, who've been there from day one. And so really trying to think about how do we get those people in place to demonstrate, yes, the opportunities are here for you. This is going to be the place where you have that, that that great moment or that great chance to shine. You don't have to go someplace else in order to do that. That's probably the toughest aspect of it, I think.

Speaker 2:

Well, I suspect it's tough because it's constant. Yeah . It's tough because you can't say we're done. Right ? You're never done. Yeah. You're on this journey because the practice, the service of your clients is fluid. Yeah . And it's continual, so Sure . And , and there's a churn mm-hmm. <affirmative>. And so talk to me then about how you maintain that level of education and training within the organization to help the message stay fresh mm-hmm. <affirmative> throughout your journey.

Speaker 3:

Uh, I have a great team, <laugh>. I have a great d and i team. And I think my firm has been great about recognizing that one person cannot do this. And so I think having people who are not just sort of steeped in the practice of diversity. And I do think that diversity and inclusion is a practice. You have to constantly evolve. You have to constantly study. You have to figure out what we're learning through data, what innovations are out there. You've really gotta be committed to sort of a continuing education process around dni. And you've gotta have a team that's committed to that. But I think that in addition to that, you also need a diversity team that's on the ground, right? Because the best information that I get back as far as what types of training do we need, what types of training work, what what really doesn't work is having people on the ground who are talking to our attorneys and talking to our staff , um, and not just, Hey, what did you think about that training last week? But that have a constant relationship with people so that people feel like they can pick up the phone and say, Hey, you, you know what? I've been thinking about this, or I've been going through this, or I really want to be able to do this type of work, or, I was really hoping to get on this particular client team, and this is one of the things that's a hurdle for me. This is one of the things that I can't quite figure out. That's when you start learning, okay, you know what, maybe we need to do a little bit of training around this. That's how we learned about reviews, right? And we , what the , the thing that we were seeing on in reviews, we were talking to people and they were saying, I'm getting these comments in my reviews. I don't understand what the words are. Like they're , they're these, these words and I don't really get it. And once we started looking through, we were seeing this is about difference. This is, this is about managing around difference and giving feedback around difference. And so we saw, okay, we've gotta train more about how to give feedback around difference. But I do think that it is a process of constantly talking to your talent and treating your talent like the resource and the investment that it is. And it's an investment that you want to just , not just kind of freeze in place, but to grow. You've gotta constantly sort of check in and see where the potential obstacles are and how you can remove those barriers as quickly as possible <laugh> , um, and, and in a way that isn't kind of disruptive from a business perspective as well. And it's delicate dance.

Speaker 2:

Well, and one of the things I think that you highlighted is, you know, it , it is continual. It's that education, you know, the associates didn't understand the words that people were using. There's bias, there's cultural bias. Mm-hmm. <affirmative>. And so, and since we are in the practice where words matter, I suspect you're doing a fair amount of helping people understand, you know, the difference in the terms that people use. Mm-hmm . <affirmative> , there's discrimination over here, there's opportunity over there. What does racial bias mean? Mm-hmm . <affirmative> , um, you know , what are tropes, what are red flags? And , uh, and so does that take a lot of your time is sort of helping people understand the difference between inclusion mm-hmm . <affirmative> and diversity. Yeah . You know, are , are you there working constantly to help folks understand kind of how that hap how ,

Speaker 3:

How that works? Yeah . I , I think that that is critically important. I think it's also critically important that as much as lawyers love to think that, you know, we know how to do everything, we don't, we have to bring in professionals to do that. And so we have some really good professionals who come in and have those sessions. And I think you have to be aware of kind of how your organization from a cultural perspective receives information. Um, we have found that kind of lecture broad-based lecture type series are, are better, quite frank . And , uh, lecture series where , where we sort of have a large lecture and then we break out into small groups to discuss these issues, is they're much better than sort of these kind of broad-based trainings where 50 people in a conference room and you just kind of do them over and over and over. We've done that too. Um, this doesn't work as well. When you really kind of bring people together in groups across different offices, practice groups, attorneys and staff, and you bring people together and say, okay, I just learned about microaggressions. This is what I heard. This is what I don't get. You get a lot more out of that than if you sit, everybody tell everyone they have to sit in a , in a conference room for two hours and listen to a talk about microaggression aggressions , right. Because you will have people who are engaged in those small group conversations that will say, this is a microaggression. This is what I've experienced before. I had a friend experience that, or this is something I said and I didn't know I was saying something wrong. People don't wanna say that in a conference room of 50 people, right . But they'll say it in a small group of five or six. And so , um, but I do think it takes bringing in good professionals , um, in this space who know what they're doing, who are able to kind of peak the natural curiosity <laugh> , that that is sort of inherent in people who work in the legal perfection profession, whether as , as a lawyer or a staff. And then kind of hone in on that and then find a way to make it relevant to each individual person. But it is definitely, it is definitely a process. But we , and we're constantly working on it. Let me just say, let me just say that Yeah . We are nowhere near perfect, but we're definitely

Speaker 2:

Constantly perfect . No , you are definitely on the journey and you guys have been doing great work and I , I I think it's refreshing to hear that lawyers don't have all the answers Yes . And that it's good to bring in experts. Yeah . And that you've done that, you've demystified the educational curve by allowing the organization to benefit from those who study this. And you're receiving, you know, a lot of the benefits from that. So I, I want to take a minute and shift a little bit to the ERISA side of your portfolio. Okay , sure. As I said, I was excited about the opportunity to talk to you for what you are managing mm-hmm . <affirmative> in your day-to-day world , uh, and, and under the larger umbrella of, you know, sort of racial disparities in mm-hmm . <affirmative> healthcare and healthcare delivery. I suspect you see a glimpse of that in your work

Speaker 3:

Yeah.

Speaker 2:

On the ERISA side. Exactly. Do you see ERISA being part of the problem and therefore part of the solution? It's much like the business case for diversity and the business case against it. So , right . How do you view ERISA and its role in this country for helping or hurting mm-hmm . <affirmative> the cause for addressing racial and, and healthcare disparities?

Speaker 3:

Yeah. I , I think that's a great question. I think that if you think of part of ERISA as being the Affordable Care Act, for instance, I think that the Affordable Care Act , um, really brought in a lot of design-based features that allowed plans to sort of think about the delivery of Ben , of, of healthcare benefits in particular, and their designs and their structures. I think that employers are becoming much more sophisticated about looking at health outcomes for their populations, and then kind of reverse engineering that into healthcare plan design. And that's what a lot of what I see. But there were certain things like, like section 1557 of ERISA that really dealt with non-discrimination issues. Mm-hmm . <affirmative> plans really weren't thinking about that as much. And so just bringing those types of structures in through ERISA allows plans to sort of say, you know, what we're looking at kind of, okay, we have a lot of people in our population that have hypertension, but are you collecting the data to really see sort of how that treatment is being delivered to your black population versus your Latino versus population versus your white population or in different zip codes? Are there different outcomes? Are there significant health disparities? Are you getting the most out of your dollars? And I see more employers looking at that now and really kind of paying attention to not just, okay, our population's outcomes just kind of on a, on a comprehensive basis are this, and so we need to do this, but there are areas of our populations where we are not getting enough bang for our buck. Let's design toward that. ERISA allows employee to do that without having to worry about state law. Right. And so, you know, because we've got the preemption provisions, you've got a large employer, they're in a bunch of states if they want to do that, they don't have to worry about, well, Pennsylvania says this, Utah says this, and Arizona says that. So I can't really do it across my entire plan . So I look at ERISA as a tool to allow employers to really kind of dig in on what they're trying to achieve from , um, from a healthcare perspective, what they're trying to deliver to their employees , um, what their kind of fiscal goals are, and then implement that on a nationwide basis or implement that across their entire population. Um, and so that's a lot of what I do. That's a lot of the design that I do. Um, it's also sort of sitting with them when they're talking to the consultants and, and I love healthcare consultants, so , so do I get me wrong? It's all good , <laugh>. Exactly. But saying, Hey, you know, yes, I think that design is great. You've gotta think about , um, this provision of Arista that says you're gonna have to test to make sure that the population that you've got over here and the population that you got over here are getting the same thing. So, so making sure that employers, when they're looking at those different designs are thinking about the fact that, you know, ERISA says that if you're going to have tax benefits as an employer from delivering these , um, these health structures, these health benefit structures, and your employees are also going to get tax benefits, there's certain rules you gotta follow to make sure everyone's treated fairly. I mean, that's sort of arisa in a nutshell. And I'm there to make sure that when we're looking at those design-based changes or those design-based structures, whether they're based on health outcomes, whether they're based on an employer's fiscal concerns, that they also align with what ERISA says needs to be done in order to get those, you know, those health benefits , um, through those tax benefits associated with the health benefits, and also, you know, keep the employers out of fiduciary trouble. That's also, that's also a big part

Speaker 2:

Of it. Yeah . Well, and so it seems that you see ERISA as a positive tool

Speaker 3:

Yeah .

Speaker 2:

To help address the healthcare disparities, the inequities that are in our healthcare system, you know , under the shroud of racism mm-hmm . <affirmative> and other isms and fear and our culture, again, as a tool for change mm-hmm . <affirmative> versus an impediment to change.

Speaker 3:

Yeah, I do. Because I think that one of the things that employers can really think about doing is leveraging their 5,000, 6,000, 10,000, 20,000 employee employees to say, Hey, there are changes, not just in sort of benefit design, but maybe there are changes within the healthcare legal system, within the healthcare market that really need to be made. They can leverage those employees that they have and the dollars that they're putting into the healthcare system in order to do that. And ERISA allows 'em to do that again, without kind of worrying about 50 state regulation too much. Um, I, I do understand that , um, it is not the most intuitive law to navigate. Um, and, and I do , uh, understand that it does come with some level of compliance burdens, but the employers that I work with really appreciate the fact that if they wanna deliver a certain design structure in Nebraska and they wanna deliver the same one in New York, there's a way to get them there. And they don't have to worry about the fact that Nebraska has different health insurance laws than New York does very different health insurance laws than, than New York does. And so I, I do see it as I , I try to make sure that they see it as a , as more of a tool , uh, more as a weapon, even rather than just simply being a compliance burden.

Speaker 2:

I see a little hopefulness coming through in , in, in your comment and in what you are seeing in your client base, that there are efforts afoot using ERISA and perhaps other tools, but more importantly, they're coming to the table with a desire to change and to make sure that there's equity and opportunity , um, across the lines, the state lines that might have historically been impediments to that.

Speaker 3:

Yeah. Right. I, I think that that's , um, I think that's definitely right. And I also, I also think that employers are starting to think a little bit differently too about kind of the compliance associated with ERISA and the fact that, you know, maybe it's not, maybe it's not as bad <laugh> as , as we sometimes kind of make it out to be. I think that one of the, the , the good things about the Affordable Care Act, for instance, is that the process around developing, for instance , um, central Health benefits, it , there was a process associated with figuring out which benefits are really those that are most important across all populations. Right. And there were some employers who were really kind of paying attention to that. There are other employers who were maybe looking at more skinny plants , so to speak mm-hmm . <affirmative> , um, and thinking, well, you know, my employer ees are complaining, or, you know, this isn't really a big deal for them. I'm just going to deliver this. It really did sort of make employers think about what is it that we're trying to achieve? Because it's more than just saying, Hey, yeah, we give a health plan. You want to give, make sure your employees are healthy so that they can come to work. You wanna make sure that you're covering their dependent so that they aren't staying home from work because their dependents aren't healthy. There's a lot more that you're getting out of your healthcare benefit design. And if you really know what you're going to have to deliver in order to really have a robust benefit design that achieves your goals, then if Arisa is getting you there, that might not be such a horrible thing. It just means paying a lot of attention to the compliance. Right. And making sure you're understanding not how to not kind of trip over some of those , um, uh, enforcement or compliance hurdles. Um , but I think most employers, maybe in the first few years after the Affordable Care Act, I , I think there was a , there was a lot of consternation about doing that, but I think most of employers have found their stride now and have found that, okay, you know what, I'm delivering benefits that might cost a little bit more, but they're also achieving the greater goals of what I was trying to achieve in the first place.

Speaker 2:

Yeah. Did you find when Covid hit, so there was the Affordable Care Act, you know, sort of our historical timeline that had a blip and an opportunity mm-hmm. <affirmative> continue, continue Covid hit. Yeah. Did you find that employers were reacting to what they were seeing in their population base mm-hmm. <affirmative> and are now in the process of making more fundamental, long-lasting changes into the offerings mm-hmm. <affirmative> to address, you know, the inequities and the disparities that were highlighted through covid?

Speaker 3:

Yeah. I think that they are, in part because of some of the legisla ERISA related , um, regulations that came out with relations to go covid. So for example , um, giving more flexibility, providing for more flexibility around telehealth. Right. Um, a lot of employers were sort of back and forth about telehealth and I don't really know how to do this and I'm not really sure it's going to be worth it. And Oh, I've got this hsa. How is this going to work with telehealth? Um, I think that employers became very aware of the fact that all of their populations don't necessarily have a doctor within 20 minutes. Right. And so telehealth is very, very important and it now is important to everyone no matter where you are, cuz we can't leave our homes. So it really, that that was one instance in which employers really started. First of all, we had some regulation that said, Hey, listen, telehealth, you gotta cover it. Right? But we also said, okay, you know what, this really is very important to certain populations. Maybe in certain more remote areas, maybe people who are , um, experiencing health disparities because they have a little bit of consternation about going to a doctor, they don't feel like they're being listened to. Um, maybe they'll be , they'll be more willing to maybe engage from their homes with someone in their family there to kind of help walk them through the process. This is really important for not just for covid purposes, but for populations that maybe weren't accessing the benefits that we had as much. And so I do think that a lot of the changes that we made in to, in , in , um, COVID, and I think that, you know, employers were great too. Like, they kind of jumped in. Not only did they respond to what their employees needed, they started responding to what they thought their employees were going to need. And I think that was really great to see, like employers were trying to anticipate what's gonna happen, what are they gonna need? Um, how can we adjust the costs ? How can we make this easier for people to access health benefits? I really think that they tried to be very kind of forward thinking . Um, and then , but I think that a lot of the changes that came about are probably changes that are going to be here to say . And I think that's going to be a good thing for both plans and for employees.

Speaker 2:

So as you look into the future over the next 10 years or so, do you share optimism or worry? Where are

Speaker 3:

You? I'm optimistic. I think we're going to see a lot more employers looking at things like onsite health clinics. I think we're probably going to see some legislation that allows that to, to be something that employers can deliver a lot more easily, even if they're offering something like an hsa. I think that we're going to see more flexible but comprehensive benefit structures. Um, I think that now that, you know, people can work in Arizona and live in Iowa, we are really going to start thinking about what the concept of a network plan really means and how we're, how we're going to start thinking about devising a way to allow your employees who are working remotely and sometimes very, very remotely in areas of the country that you hadn't really thought about before. How are you going to deliver the best possible benefit structure to them by rethinking how you structure and work, structure your networks and work with TPAs? And so I, I'm really hopeful. I think we're gonna see a lot of innovation and we're gonna see a lot of changes within the, the healthcare benefits delivery system . So, so yeah.

Speaker 2:

Well, I , I share your optimism. We'll, we'll , we'll , we'll put a pin in it and we'll , we will see where we are in 10 years. Okay. Great . We'll come back and visit. I want to thank you so much Absolutely. For spending time with us today.

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 .