AHLA's Speaking of Health Law
AHLA's Speaking of Health Law
Health Law in 2023 and Beyond; Your Role in Policy Development
Priya Bathija, Founder and CEO, Nyoo Health, and Marc Goldstone, Executive Vice President and Chief Legal Officer, Wellpath, discuss some of the top health law trends of 2023, the biggest challenges and opportunities the industry is facing, and why it is so important for health lawyers to understand the policy making process. Priya and Mark are speaking at AHLA’s upcoming 2023 Fundamentals of Health Law program in Chicago, IL.
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Speaker 2:Welcome everyone. We are here today to talk about the Fundamentals of Health Law program, which is coming up next month in Chicago. Um, and I'm joined by Mark Goldstone , who many of you know from his extensive work with the American Health Law Association. But Mark, can I pass it over to you to tell us a little bit about yourself?
Speaker 3:Sure. Thanks, Priya . So my name is Mark Goldstone. I've been a member of A H L A since before it was a H L A when I joined. It was the National Health Lawyers Association. Um, probably one of the most worthy career related efforts I've ever been involved with. This is an organization that gives you back so much more than you put into it. I've held about every leadership position you can hold except president and thank goodness for that. 'cause I hear that's a lot of work. And so, Priya , tell us about your history with A H L A .
Speaker 2:Yeah, I always forget to introduce myself, but I am Priya Beja and currently the founder and c e o of New Health, which is a company focused on improving access to health and healthcare for women. But I've been involved with the A H L A since I started practicing law 20 years ago. Um, it was one of the first things I did as a new health law attorney was to join this group so that I could meet other people who are doing the same thing as me and really learn from folks who had been doing it longer. And it's been such a rewarding experience to be a part of it. And then also to have the opportunity now to be part of the planning committee for fundamentals and be a speaker at Fundamentals and be able to sort of give back in a way that, you know, I took for so long from this organization. So I'm really excited about the conference. And for those listening, I'll just tell you a little bit about fundamentals and then we're gonna dive into some of the sessions that will take place at the conference. Um, but it is a training program for new associates and in-house counsel , compliance officers, consultants, and others who are advising health law clients. Um, typically it's folks that are new to the health law space, but it is also an excellent way , um, to refresh , um, your understanding and knowledge of key areas of health law for experienced attorneys. Um, so the faculty are coming from all over the country to teach on some really important areas related to health law. Um, for example, we have primers on Medicare parts A through D. We cover Medicaid, we talk about privacy , um, the physician self-referral law, anti-Kickback, and the False Claims Act. Um, just so much on this rich agenda. Um, that provides a great opening point for our health law attorneys to understand the field and where they wanna go in it . Um, mark, I know you've been to this program, you've spoken at this program before. What , why is it so important for folks to attend?
Speaker 3:So , you know, I think that the thing that's most important about it is that when you're starting off new in health law, it's really a different field of endeavor than almost any other, because in any other field of of practice of law, we're not dealing so directly with the impact on human lives. You know, the, I I tell the lawyers that work with me here at Well path , if you inform your practice with the fact that everything we do either enables a patient to receive care, improves the ability of a patient to receive care, improves the ability of a provider to give care, and you make decisions through that lens, you're very rarely likely to make a a bad decision. There are a few areas of the law where you think the work, I do the pen on the paper, the black law in the book impacts human lives quite so greatly. And so when you decide you wanna be a health lawyer or when your career path takes you into health law, being immersed in the entire universe of how we practice and how we focus the way we practice and the interrelated nature of every little bit of what we do through the entire healthcare ecosystem is a very hard body of knowledge to absorb. Even if you're in the best training program in the best law firm in America, this is the way that you jumpstart the process. You learn, you know, we go to law school to learn to think like lawyers. You go to fundamentals to learn to think like a health lawyer, which is a very different thing. And when I hire people in this job, I look for people who have that grounding and understand that this is more than just reviewing a contract. This is about people's lives and, and fundamentals is the first step and the best step to get you in that direction.
Speaker 2:Yeah, thanks Mark . And I, I love the point you made about being a health law being about impacting individuals' lives. And I think so many of us take that so seriously in the profession and it's why I've really enjoyed being a part of not only this program, but the association and being in comradery with folks that want to make that impact in their healthcare , in their legal career, I should say. Um , well , you all are kicking off fundamentals this year with the keynote speech entitled Health Law in 2023 and Beyond Top Trends, challenges and Opportunities , um, what are some of the trends right now in health law that you're gonna be covering?
Speaker 3:Well, the one immutable trend is that if you've seen one health law issue , you've seen one health law issue, <laugh> . Um, I was, I was a paramedic before I was a lawyer, and I thought, gosh, being a lawyer will be so much more predictable than that and it's just not. Um, so, you know, some of the things we're gonna touch on and, and I will tweak this presentation probably up to the day I give it because things change so much. Um, AI and the impact of AI is probably the topic we'll spend the most time on. There are so many, you know, fingers or , or legs to the AI octopus things that we haven't even considered yet. The law is not nimble. The law will not catch up to AI anytime soon. And how we practice around the edges of AI and how we advise clients and how we advise providers on the use of AI probably gonna be way at the top of our list. It's , uh, you know, it's an elephant built by committee. None of us really know what it looked like. All we know is that everybody has an AI product that they want us to use, and we wanna know how we best use it to improve healthcare, not to potentially create bad outcomes. Does that make sense?
Speaker 2:That does, that does. And I think it's really important as lawyers are just individuals to really understand some of the biases that may go into AI that we need to prepare and plan for as we try to, you know, provide equitable care to patients and communities and training to providers as they, as they take on use of these different solutions.
Speaker 3:Sure. And, and you know, if you think about AI as another piece of technology enabled healthcare , uh, I'll talk about telehealth, which is probably something that has also really rapidly outstripped our ability or desire to regulate it. You know, C O V I D brought on substantial changes in the way we deliver care and, and the way we had to deliver care. And now, you know, we don't know really what the law is gonna say. We know that some of the regulators are continuing, some of the regulatory flexibility we got during covid . Um, I would say that we almost had an enforced human subject research experiment on healthcare because we had no choice. We couldn't deliver healthcare any other way. So we have results. We know what works. We know we know what's good for the patients. We know what's good for the system. We just need some laws to change to make sure that we can take advantage of those improvements. Yeah.
Speaker 2:Well, I don't wanna scoop your whole presentation 'cause I want those that attend the conference step to really be able to enjoy it. But can you share what some of the challenges and opportunities we face as health lawyers in the future?
Speaker 3:Well, you know, some of the challenges we're gonna face around workforce management, you know, the great resignation healthcare is about people taking care of people. Um, you know, I do not envision anytime soon a Logan's run scenario where they put you on the table and the robot diagnoses you and treats you and sends you on your way. Workforce management is, is really tough right now. It's hard to be a frontline healthcare provider. I've been one and I know what it takes out of you and our system, our , our , all of our systems, our , uh, our payment system detract from our ability to retain people in the long run. Our criminal law system are , criminal law is starting to impact the ability of healthcare providers to deliver care, to recruit people, to retain them in the profession. Workforce management is something we're gonna have to talk a lot about because no nurses, no doctors, no techs, no paramedics, no pharmacists, no healthcare,
Speaker 2:Right? Right. And it's, it's not like we were starting in a good situation, right? So we already knew we were gonna have workforce shortages in certain specialties, and now it's just, it's even worse. So it really will be interesting to see how organizations take that on and how they change how they interact with their employee workforce , um, to keep them functional, resilient, and moving forward. Um, so anything else you wanna tell us about your presentation?
Speaker 3:I think that everybody would expect to hear about, and I intend to talk about , um, you know, changes in the law and the difficulties in practice in reproductive care and gender affirming care. You know, Dobbs was , um, earth-shaking in terms of jurisprudence and the states are taking very different approaches about how they legislate now. And it's not for me to tell folks how to legislate or it's not for me to tell Congress what to do, but it , you know, a lot of times it comes down to me to tell an individual provider, here's what you can do safely and not risk punishment. And, you know, I think a , an unintended consequence of Dobbs and all this political activism is that providers are exercising their discretion to go with, you know, they're voting with their feet . And we as health lawyers are gonna be called on a lot in the future to help people make really difficult decisions.
Speaker 2:You know, what has been clear about Dobbs is that it's created a massive level of confusion, right? So even in states where something may be perfectly appropriate to do, it's very confusing about whether a doctor has the ability to care for the patient in the way that they feel is medically necessary for that patient. And I think that confusion is where health law attorneys are gonna be called upon all the time to provide opinions. And it may not always be a clear cut case in a certain state , um, but they'll have to do their best. And when you talk about workforce shortages, and we think about this issue of reproductive rights and providers thinking on their feet and moving to other states, there are states already that aren't able to attract medical students and residents because of the laws within that state. So that just creates another sort of challenge on that workforce perspective in certain areas of our country.
Speaker 3:And it , it further brings in the malpractice risk.
Speaker 2:Mm-hmm. <affirmative> ,
Speaker 3:If I'm a provider, and this is the standard of care, I've been trained to the standard of care, everybody is going to find an expert witness that says, this is what you should have done. But I decided I couldn't do it because either the law was unclear or I was afraid that I was gonna suffer a criminal penalty. Is that a defense? What do your insurer think about it? <laugh> ? And again, as a, as a, as somebody who advises providers and provider systems, how do you price that risk? How do you figure out how we can afford to continue to operate with this new externality? Like the economists like to say <laugh> .
Speaker 2:Wonderful. Well, I'm so excited to hear your presentation at Fundamentals. I know that even though I've been in the field for close to 20 years now, I will learn a great deal from hearing from you. So thank
Speaker 3:You very kind to say that <laugh> , but I, I wanna know about your presentation. Tell , tell, tell folks who are listening, what you're gonna talk about.
Speaker 2:Yeah, so our session, I'm co-presenting with one of my good friends and colleagues, Melissa Meyers. Um, we are both health law attorneys, but we also work in the policy space and we work in colleagues together at the American Hospital Association. So had many years of working on policy issues , um, together. But our session is called Before It Becomes a Law, your role in Policy Development. Um, and I think it's because Melissa and I have straddled both the health law and the policy side that we feel it's really important for all health lawyers to understand the roles they can play in developing policy. Because policy work is really just the law where it becomes the law, right? It's being able to influence and provide comments and shape and structure regulations and laws , um, in a way that work best for providers, for organizations, for patients and communities. And so we're gonna cover a lot of different ways that health lawyers can , um, be a part of the policy process and the ways that they can proactively advocate for their clients throughout their career.
Speaker 3:So, you know, you raise a really important point, and that is sometimes, although we probably always think we're the smartest people in the room, sometimes we are the smartest people in the room when it comes to policy issues. Can you maybe just throw out a couple of tidbits about what health lawyers should be thinking about when they say, Hey, my state needs a policy shift. My county needs to adopt a rule, my congressman needs to know about X. Remember when I first entered that field, I thought it was, well, you send a letter to your congressman and you get a good law. And clearly that's not how it works.
Speaker 2:Oh, yeah, there, there's many steps, but there are many ways that health lawyers can touch those many steps, right? The first, of course is a good idea that is supported in need in research in there is a foundation for why that type of policy needs to move forward. Um, and then there's gaining support, right? It is rare that one individual or one organization can ever push through a policy, whether it's at the local level, the state level, or the federal level . It , it typically always requires collaboration of sorts. So finding the organizations that want this type of policy, aligning with them and moving forward as a group. Um, I can just give an example. In the women's health space, for example, we've seen some really great policies come out of the federal government in the past year. And each of those policies took thousands upon thousands of advocates across the country talking about those provisions, talking about why they were needed, talking about how they would help patients and communities to actually move something forward. Um, the policy process, if you've worked in it at all, and , and you know, this mark is, is very slow. It , um, it moved very quickly during covid again because we had to. But on a day-to-day basis, it moves quite slowly. You can put an out idea out there and it may take five, 10 years to get that policy implemented. So we're gonna talk about all the different things that, you know, lawyers can do to move a policy forward. Um, but also those things that lawyers can do if there's a policy that has been enacted that they don't necessarily think is the best and they want to make change on that policy.
Speaker 3:You know , it's really interesting when you put it all together. One of the things that, the piece of my mind that I use the least comes to the fore is you're building consensus among dispar organizations. How do you manage the antitrust risk? How do you get a bunch of competitors in a room who say, Hey, we all believe that this is a really good policy, let's advocate for it without being told, Hey, this is really just a move to monopolize a market or Carver market.
Speaker 2:<inaudible> is really relying on trade associations that are representative of the field. And so, you know, Melissa and I overlapped at the American Hospital Association, and there we had the opportunity to advocate on behalf of nearly 5,000 hospitals and health systems. Um, and we did advocate on issues that really could have caused antitrust concerns. Um, especially I'm thinking, you know, off the top of my head, like mergers and all of that. And we were able to do it at an association level and provide, not necessarily cover, but we were be able to be sort of the force and the voice behind what we needed for the hospital field in those areas.
Speaker 3:And in your mind, is there a hot policy issue in the next year that health lawyers really ought to be thinking is gonna impact their practice and maybe they might wanna become involved with advocacy for,
Speaker 2:Oh man , there's so many of them. Mark . Um, so obviously there's payment policy and that's an ongoing issue that is occurring every day of every year. Um, and how those rules move forward on different payment aspects to different types of healthcare providers. Um, there's also a lot of action in the maternal health space right now. Um, we of course are in a maternal health crisis in our country, and there are a lot of advocates at the local, state and federal level that are looking to make policy change to improve outcomes for , um, mothers and children. Um, price transparency is still sort of a hopping issue for providers and payers as they work through the regulations that have been released by the government. Um, and there's a tremendous amount being done and said about health equity from the administration. And so there will be a lot of opportunity there , um, to have impact and say in different regulations that promote health for everyone in our, in our country.
Speaker 3:Well, I think that you're probably gonna wrap it all up with a bow for the folks. And yeah , again, when we think about this ecosystem of healthcare, you know, how you move policy, how you think about policy, how you react to policy is one of the things that makes health law a little different than some of the other fields that you could choose to practice in. So I'm really excited about your session and I, I can't wait to sit in the front row and ask questions.
Speaker 2:Well, thank you Mark. I, I I think, I hope it will go well. Um, last year was the first time we did this session, so , and it was , um, it went well. So hoping to have the same sort of response , um, at this year's fundamentals conference as well. Um, before we wrap up our conversation, mark , um, what are you most looking forward to at fundamentals?
Speaker 3:So, you know, on, on the one hand, I, I, I love coming to Chicago except during the nine months of the year that it's winter there <laugh> . And so they tell me Chicago has two seasons winter and July. So if you're coming from the warmer climbs like I'm in Nashville, make sure you bring heavy coat. But the two things that I look most forward to are one, meeting the people who are new to the practice of health law. Meeting that cohort of people always energizes my practice and it broadens my outlook and it makes me feel proud to do the work I do, you know, surrounded by people who are eager for this knowledge and really want to make a difference in people's lives. It can be hard to do the work we do. You know, a lot of times we deal with poor health outcomes. When I was a paramedic, I remember the older paramedics would say, there's only two rules of healthcare . One is that young people die, and two is that we can't do anything about rule number one. And it's really nice to be reminded that there is a full spectrum of what we do and it's a lot of it is about positive outcomes and making positive outcomes. And then the second thing that I love about it is it's an A H L A event. And I never failed to walk away from an A H L A event without a renewed sense of being proud to be a lawyer, being proud to be part of this incredible community that has given me back a hundred times what I've put into it, has done good things for the practice of law, the practice of health law, and just society at large. It's just such a wonderful organization. I'm always happy to be around a group of other health lawyers and members of A H L A .
Speaker 2:Yeah . Well , I share , um, a similar sentiment to you . I'm really excited about this conference and I always leave energized. There is something about seeing a whole new group or class of health law attorneys , um, coming together at their, their beginning of their career and sort of taking it all in the way we did when we started in this field. Um, and it just rejuvenates me. And like you said, it reminds me of why I am proud to be a health lawyer, to be involved in healthcare and to be a part of the A H L A. So I'm really looking forward to it. And um , mark, thanks for talking with me. And before we end, I just wanna share that Mark and I, along with , um, two additional speakers will also be doing a lunch session. So if you are at the conference, please um, check us out. We'll be speaking about mentorship and sponsorship and why , um, both are needed to be successful in your career. And I guess that's just another thing I love about this conference as well, is we're not just talking about the law, we're actually talking about professional development and how to move forward , um, as new health law attorneys or if you're there for a refresher, how can you start to take on some of these , um, areas of professional development for yourself. So thank you Mark again for chatting with me today. Um, thank you to all of you who are listening. We hope to see you at Fundamentals, which will take place , um, from November 5th through the seventh in , um, Chicago, which can be cold. So please take Mark's advice to bring a winter coat with you very seriously. Um, thanks again and hope to see you there. Thanks,
Speaker 3:Priya . Have a good day.
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.