Representing Hospitals and Health Systems: What Has Changed Over the Years?

Travis G. Lloyd, Member, Bass Berry & Sims PLC, Emily Black Grey, Partner, Breazeale Sachse & Wilson LLP, and Claire M. Turcotte, discuss their experiences representing hospitals and health systems and how the field has changed over the years. They cover issues related to telehealth, site-neutral payments, co-location, and fraud and abuse. Travis, Emily, and Claire are co-editors of AHLA’s Representing Hospitals and Health Systems Handbook, Second Edition.

Watch the conversation here.

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Transcript

Speaker 1: 0:00

<silence>

Speaker 2: 0:04

ALA's, popular Health Law Daily email newsletter is now a daily podcast exclusively for a HLA premium members. Get all your health law news from the major media outlets on this new podcast. To subscribe and add this private podcast, feed to your podcast app, go to American health law.org/daily podcast .

Speaker 3: 0:27

Well welcome everyone to the podcast. My name is Travis Lloyd. I am a partner at Bass Berry and Sims in Nashville, Tennessee. And today we are going to be talking about ALA's recent, recently released second edition of the representing hospitals and Health Systems handbook. With me today are my friends, Emily Gray and Claire Turcott , and the three of us, along with one other person who can't be here today. Susan Schau had the privilege of editing this book. So before we jump in, Emily , would you please introduce yourself?

Speaker 4: 1:03

Sure. I'm Emily Gray. I am a partner at Brazil Saxe and Wilson , uh, in Baton Rouge, Louisiana. And my practice primarily involves regulatory compliance, contracting matters for healthcare providers, and you know, Travis and Claire, you guys, I realized as we were preparing for this, that it has been 10 years since we started work on the first edition together, which was back in December, 2014. So , um, it's been a labor of love for a long time.

Speaker 3: 1:34

And Claire ,

Speaker 5: 1:37

Uh, thanks Travis. So, yeah, my name's Claire Turcott , and , um, most recently I was an in-house council role for a health system in southwest Ohio where I represented the strategy and business development areas and reimbursement and also , uh, certain health information areas. Before that, I was a partner in the brick and LER law firm , uh, for a number of years where I focused on transactions, fraud and abuse and , um, provider based status and some other regulatory areas.

Speaker 3: 2:08

Well, great. So I think before we get into it in earnest, we, we simply have to pause and thank the many, many volunteers who made this possible. Um, as I said, a big thank you to our fourth editor, Susan Schau , who joined us at the 11th hour and really helped us get across the finish line. Um, many thanks to the dozens of volunteer authors who wrote and edited a huge amount of content over a , uh, two, two and a half year period , um, probably longer <laugh>. Um, and, and lastly, just a shout out to the lead editors from the first edition, the Nisha Newman and Bob, who really put us in a great place with all of their work on the first go round . Um, I wanted to ask you all about your own experience representing hospitals and how that's changed over the years. I think each of us has organized our practices around hospitals and health systems, but what exactly that means is different from person to person , and over time it changes. Um, Claire , do you wanna talk a little bit just about your, your practice?

Speaker 5: 3:14

Sure, yeah. Um, I, I think I've been practicing the longest of the three of us, so I have kind of the, the longest , uh, timeline to, to reflect on here. But , um, you know, back in the day when I started practicing in the early 1990s , um, in Portland, Oregon, so in the Pacific Northwest, I would say that , um, young attorneys didn't specialize as quickly as they do today. So, for example, I joined a large , uh, Seattle based law firm in their Portland office, and they had a rotation program where new associates were expected to rotate throughout different departments of the firm for two years, you know, from litigation to corporate real estate, what have you. Um, and I did that and I pretty quickly though gravitated towards corporate law and health law was sort of a subspecialty within corporate , um, and that, that I saw at other firms as well. It was not very common for firms to actually have a true health law practice. It was more likely that there were healthcare clients that attorneys represented if they were a corporate lawyer, they were a tax lawyer, they were an employee benefits lawyer, and did, you know, pension work for physician group practices and so on. Um, ho hospital work was often done by employment lawyers, for example. Um, and it was a number of years until really the , the field of health law came into its own. It was really in its infancy at that time. Um, and I was lucky enough to be part of it as it was really kind of unfolding. I mean, to put it in perspective, the Stark Law was enacted in 1989, and I started practicing in 1992. So the first Stark regulations came out when I was a young associate, and I learned them alongside, you know, a lot of other attorneys , um, at as they were, you know, in real time as they were happening. Um, there weren't really a lot of deep experts at that time, so it was really a great opportunity to kind of get in on the field early. Um, fast forwarding to my time in Ohio in the two thousands , um, at that time, you know, the Bricker Necker firm exclusively represented hospitals and a lot of their practice historically was representing community hospitals. And those community hospitals started being , being acquired by bigger systems, and the bigger systems were really growing their in-house legal departments. And so it became apparent that really what outside law firms were gonna have to offer those health systems was to be deeper subject matter experts in more complex regulatory areas. Um, you know, experts would be available for those in-house teams to call upon when those issues came up periodically. They weren't gonna have the resources to have experts in-house so the outside firms could, could offer that expertise. So really the regulatory areas became more and more prominent, I would say, in my practice, even though I maintained a practice in the transaction space.

Speaker 4: 6:22

Well, and I'll jump in next. Um, you know, Claire , I think , um, next after you, I started practicing in the year 2000. Um, and looking back at it , it's , um, the evolution of the practice has really been pretty remarkable. Uh, we used to be running around typing on our blackberries, which was cutting edge technology. Um, a lot of what we did for clients was knowing who to talk to and , uh, where to look. Uh, the internet and the information that was available was not as broad as it is now. And often we were serving as kind of outside general counsel , uh, and again, having this, you know, broad expertise, kind of knowing all the different laws that were applicable , uh, and there were less of them. Um, so fast forward to today, I mean, what I've seen over the course of the last 25 years is, is a real narrowing of the practice. I mean , you almost have to specialize. Um, you do need to know all the things, all the outside general counsel type things so that you can issue spot. Um, again, hearkening back to the book where you need to be aware of potential pitfalls and landmines. But, but often through the consolidation that we've seen in healthcare, there are in-house folks who can do a lot of what I used to do as a young associate. Um, I've done through my career a lot of licensing and provider enrollment work, for example. And, you know , in the first five or 10 years of my practice, we would just do everything. We would fill out forms, we would submit the forms, all the things. And now really my role is more troubleshooting for clients and being able to escalate things to higher levels of authority within different agencies. Uh, because a lot of the hospital systems and even the hospitals have in-house folks who can do everything I used to do as a young associate, and , and they aren't necessarily lawyers , um, seeing a similar thing happen in reimbursement. Um, for example, I did a fair amount of managed care work as a young associate, and it would include reviewing contracts. Um, and often what I see now is that hospitals, hospital systems have a whole team of folks who do that. Uh, and really, again, only need me if something is specific, if there is troubleshooting to do, if there is, you know, heavy duty negotiating to do. Uh , so it's been, you know, an interesting ride. Um, it's always, it's always something different, which I think is one of the things that, that many of us love so much about health law , uh, and things tend to come in waves across my desk. Uh, for example, you know, Tala is one of the things that's close to my heart, and I I really haven't seen much in the last, you know, for maybe five or six years I didn't see much at all. And then there's been this kind of new wave across my desk , um, which is, you know, interesting, exciting, and , uh, makes every day a little different. So, Travis, I know you are, you know, the third of us and started a little later than I did.

Speaker 3: 9:25

Yeah, I'm, I'm the runt of the litter. Um , <laugh> having started practice in 2008, but , um, even in that short amount of time , um, have seen a lot of the, the same general trends that you both described, that is sort of the increased specialization, particularly as someone who has always been outside counsel in the law firm setting. Um, the need to sort of dive deeper , um, and sort of the, the nature of the work that's done , uh, the way that work is generally done for hospitals and health systems , just changing the more insourcing of a lot of , um, more routine tasks, contract review , um, things like licensure and provider enrollment, like you said, Emily , um, you know, that that changes the way that , um, the , the services ultimately that the outside lawyer provides. And it also reflects the kind of heavy load that in-house counsel has the incredible mandate , um, or the incredible responsibility that in-house counsel has to, to keep up with a lot of different issues. Hence the need for a pretty comprehensive book like this. Um, I think even in my, you know, in my short practice, I've seen it from a lot of different angles. I think I started out doing a lot of medical staff or peer review hearings, medical staff bylaws, review , things like that. Um, and then spent the bulk of my early years basically buying and selling hospitals, essentially doing diligence on hospital systems and working through those issues as they came up. That was sort of, that was good training, and it also helped me to sort of refine my interests , um, and ultimately, you know , helped , helped me become more specialized , um, spending, you know, all day on, on stark law problems or a narrow range of hospital specific reimbursement issues like provider based status, things like that. Um, frankly, it, it amazes me how much mileage you can get out of a very small issue. I think, for example, of something like co-location, that's a pretty narrow issue, <laugh> , but it is unbelievable how many questions come up there, or even to get even narrower. Think of like the Medicare , um, activation of claims validation edits for multi-campus hospitals. This is like a tiny, tiny change that happened in the, the past year or so , um, that resulted in , um, a lot of problems for clients , um, that no one really knew anything about because it involved a backend claims processing system that the Medicare administrative contractors themselves couldn't , in most cases, fully resolve the problem. Um, I think that's just my point there is that , um, small issues become, not just become big headaches, but have that the , the sort of specialization necessary for the hospital lawyer to do his or her job has , has only increased over time. Um, and the , you know, the, the sort of the demands for expertise are, are high and I think only growing , um, only deepening. So ,

Speaker 5: 12:28

Yeah, I think you make a great point there, Travis, because some change that Medicare makes , uh, or, you know, a , a change in a statute or something can spur a whole specialized area. I mean , um, you know, you and I both practiced in the provider based status space , but you know, who knew back in 2015 when , um, you know, the budget act was enacted that all this site neutral payment , uh, changes would become such a big issue. I mean, provider based status had been on the books for a number of years before that. It was kind of a checklist issue that you would consider in certain situations, but it really wasn't as prominent as it is today. Uh, when I was in my in-house role, really any, any time there was a question about opening a new service, moving, moving something to a different space, you know, there was a , uh, a team of people from, you know, real estate reimbursement, myself as legal counsel that would look at these issues and figure out, you know, can we do this? Can we build this hospital? Should we build this hospital? And then the intersection of that with the three 40 B program , um, that became a , a very specialized area that , um, you know, that I had the opportunity to advise on , uh, 10 years ago, that wasn't a thing. <laugh> really , um, maybe a little more than 10 years ago before, before the end of 2015, that really wasn't , um, so much of a focus. So things do go in waves, and I think one of the things I've always , um, said to young attorneys that are, you know, thinking about whether they wanna be a health lawyer is you , you really need to be a lifelong learner type. I mean, if you're not somebody who's game for , uh, reading new regulations and sort of learning whole new schemes, maybe it's not for you. I've always found that to be , um, interesting and exciting and, and what's sort of kept , kept me , um, in the field. Um, but you do have to be somebody that's willing to kind of roll up your sleeves and, and learn a lot of new law. There's a lot of information out there, you know , um, Emily, you mentioned the internet. I actually started practicing before the internet existed a couple of years before that. And so, yeah, knowing where to get a copy of the new regulation or guidance was, was pretty important. It wasn't all just posted on the internet instantly. Um , today you can Google and get a lot of information, but it's almost like the, the challenge is , um, you know, wading through that and trying to find the right resource.

Speaker 4: 14:59

Claire , I like your story about, you know, as a young associate, your job was to go to the library , um, <laugh> to get a copy of the rank . That's right. You know , it shows you, I mean, like how rapidly everything is changing. The other thing that occurs to me as I listen to you guys talk about, for example, three 40 B , um, it's important to have, I think, a team, it is much more difficult to practice health law alone as a solo , um, three 40 BI know it's an issue. You know, for example, I had a client , uh, this week that wants to set up a new site and they kind of wanna, you know, put it together with their existing site. And it's like, whoa, whoa, I know you guys have three 40 B drugs. Are you planning that for the new site? If we do, we need to dig into it and look at it. And fortunately, there's somebody down the hall , um, or one of you guys , um, who does work in the three 40 B space. But having kind of a team, which we see in-house and now really at the law firms, is something that wasn't as necessary , uh, previously. Um, additionally, one of the areas that I think has changed remarkably and is really exciting , um, is telehealth . We were really looking at, you know, very limited use of telehealth. I think something like 40% of , um, hospitals were even engaged in telehealth, and folks were excited about that number, right? And there were a lot of geographic restrictions. Uh, it was really primarily intended to be used in rural areas. Uh, there wasn't this concept of patients using telehealth in their homes. Fast forward to today, and I mean, it is ever changing , um, since the pandemic, we've seen this real change in what's allowed , um, areas, provider types reimbursement , uh, and we are watching all the time to see if our , uh, the waivers issued during the pandemic are going to be extended. And so I think it was at the end of last year, they were extended through March 31st, and then on March 20th, they were extended through the end of September this year. So , uh, particularly in telehealth, that is a fantastic example of where we can all see , uh, how quickly things have changed.

Speaker 5: 17:11

Yeah, certainly a lot has changed pre pandemic, you know, from pre pandemic to post pandemic in another, in a number of areas. Um, you know, one of the areas I referenced a little bit earlier that has changed is in the provider based status or site neutral payment area. Uh, that budget act , uh, section 6 0 3 of the Bipartisan Budget Act of 2015 was enacted. That started, kind , started the whole site neutral payment issue. Um, and, but since that time, there have been a number of additional developments in that area. For example , um, in the 21st Century Cures Act amended that section 6 0 3 to create a few exceptions, for example, hospitals that were midway through building a new location at the time that that law was enacted , uh, got an exception , uh, cancer hospitals and so on. Um, in addition, CMS limited , um, to the site neutral to the, to the physician fee schedule rate , uh, for hospital outpatient clinic visits. Um, so there's a number of things that have changed in that area since that time. Um, also, Travis, you mentioned colocation. So CMS came out with our co-location guidance , um, and that really has to do with two facilities that are in the same location, two different separately enrolled facilities. And so , um, that, you know, raises a number of different issues in terms of space planning and so on , um, that, that , that definitely need to be considered.

Speaker 3: 18:48

Yeah, no, that's great. Um, so I was, I was gonna mention fraud and abuse. Um, generally, and obviously there , there's nothing fundamentally new about fraud and abuse risks for hospitals, but that doesn't mean they don't require a lot of attention. <laugh> , um, after all, we're, we're one year removed or so from the single largest stark based FCA settlement of all time involving the hospital's , uh, arrangements with employed physicians. So stark and kickback issues are always top of mind. Um, thank you all very much for, for joining us. Have a good day.

Speaker 2: 19:28

Thank you for listening. If you enjoyed this episode, be sure to subscribe to ALA's speaking of health law, wherever you get your podcasts. To learn more about a HA and the educational resources available to the health law community, visit American health law.org.