AHLA's Speaking of Health Law
AHLA's Speaking of Health Law
Being a Health-Tech GC During the Pandemic
General counsel have played a much greater leadership role than ever before in response to the pandemic. Nancy Reiner, Partner, Major, Lindsey & Africa, speaks with Blaire Bernard, Senior Vice President and General Counsel, Iora Health, about her experiences as a health-tech general counsel during the pandemic. They discuss how risk was managed, how governance structures were organized to navigate decision making challenges, and how businesses can prepare themselves for future crises. They also discuss how general counsel can operate in a resilient and human-focused way while encouraging positive and smarter change, and Blaire talks about some of the next big health-tech trends facing general counsel. Sponsored by Major, Lindsey & Africa.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
Support for A H L A comes from major Lindsay in Africa, the global leader in legal executive search. For nearly 40 years, they have helped health organizations, nonprofits, fortune listed companies, and the government agencies build strong, talented legal teams. For more information, visit MLA global.com.
Speaker 2:So, welcome everyone, and thank you for joining us. I'm Nancy Reiner, a partner at Major Lindsay in Africa, and with Blair Bernard, the senior Vice president and general counsel of Aurora Health. We will be discussing what it's like to be a health tech general counsel in the middle of an ongoing pandemic. So first I'll let Blair introduce herself, and then I will, and then we'll get started. Blair.
Speaker 3:Thanks. Um, thanks for including me in the conversation, Nancy. Um, as you said, my name is Blair Bernard, and for the past five years I've been the general counsel and compliance officer for a company called IRA Health. AOR Health is a senior focused, tech enabled national primary care provider, and we, um, have been around since, uh, 2011, um, and we operated, uh, throughout the pandemic and I'm happy to share our experience.
Speaker 2:Great, thank you. So, as I said, I'm Nancy Reiner. I'm a partner at Major Lindsay in Africa, legal search firm, and, uh, I focus on the placement of general counsel and other in-house council, like Chief IP council, chief compliance officers, and everything in between at every level and across all industries. And of course, this includes healthcare and health tech hospital systems and across all areas in the life sciences. I've been at M L A for almost a decade, and before that I was a litigator at Brown Redneck and Goodwin Proctor. So now we'll get started. So Blair, can you describe a day in the life during the heat of operating during the pandemic, and how nerve wracking was it?
Speaker 3:So, um, there's really no such thing as a typical day. Um, each day brought a new set of questions and challenges, and we were addressing everything from whether or not we should accept relief funding to how to beef up our telehealth platform. Um, and really most importantly, what we could do to promote our colleagues and our patients wellbeing as we transitioned, um, to a full remote workforce. Um, so there were definitely times when I, um, felt like my nerves were getting tested, but in many ways it was more of a test of our moral compass. Uh, we, you know, we were operating during a time when the law really wasn't intact. Um, during those early days, um, the law was just not right on point. Um, and in some ways that was liberating because as lawyers, we are trained to think about the intent and the spirit of the laws and to exercise judgment. And so that's what we did. Um, and I relied on, um, you know, just some of the old fashioned front page of the local newspaper test to make some decisions. And, um, it was very helpful that right from the beginning, our North star was the health and safety of our patients and our colleagues. And so every decision we made was in service of that. Um, to manage risk. You know, I spent a lot of time talking with my peers at other, um, sort of tech enabled healthcare companies, and it was really helpful that we had a level of trust and rapport and would speak transparently about what we were doing and how we felt like we could take some risk or take risk off the table. And they really became my, my benchmark, um, because again, there wasn't laws or data or regulatory agencies, um, that were already ahead of the curve. We were all figuring it out at the same time. Um, lastly, to manage risk, I had my insurance broker on speed dial. Mm-hmm.<affirmative>, do not underappreciate the relationship you should have with your insurance broker. I slept a lot better at night knowing that what we were doing was within the bounds of our insurance coverage.
Speaker 2:That's great. Thank you so much. So, um, so how did you organize yourself and how did you organize your team operationally? Like in order to create a system of governance? I'm sure it felt like a ca chaotic time.
Speaker 3:You know, um, it was really important for us to be able to make decisions quickly and to make sure that the right people were weighing in, and that to the extent necessary, we were telling the board about, um, what we were doing. So in some ways, we didn't have to stand up a new framework, um, not so much by design, but fortuitously our governance system was, was, um, well positioned to take on this, this new pace of work. It was really more about the speed in which we needed to make decisions. And so, um, our organization had always been set up with an executive team that had a very strong bench of functional leaders. And, um, we relied on them during the, um, sort of height of the pandemic when we were making decisions daily and then changing the decision the next day a little bit. Um, we relied on those functional leaders to really, um, take part in the decision making process and have ownership and accountability. So because we weren't, um, we were set up that way from the beginning, um, we were able to just pivot to that, uh, to that framework and, and the, the speed in which we could make the decisions. We also did stand up a covid executive team, which kind of is like your urgent response team. Um, and it was multidisciplinary. They met daily, um, and they were sort of the first line of, of inquiry and proposals and recommendations. And then again, we had, um, without the pandemic in mind, had made a decision a couple years ago to have a board level subcommittee that focuses on compliance and quality, which really at the end of the day, a lot of the pandemic decision making, um, related to compliance and quality and safety. And that group, um, because they'd been in existence for several years, um, was the obvious, um, uh, audience for some of the board level escalation and decision making. So, um, it was a little bit of, um, just good luck that our framework that was already in place was able to, um, step up and, and help us, uh, navigate the decision making challenges during the pandemic.
Speaker 2:And it proved to be a great call. Very proactive. So considering,
Speaker 3:Absolutely.
Speaker 2:So, I know you told me earlier about your approach to managing risk and um, and how much risk to take, but of all the different challenges that arose over the last eight 18 months, what would you say was the most difficult challenge and and how did you address it?
Speaker 3:Yeah, you know, it's interesting. Um, you know, going back to the, the first thing I said about all the different decisions we were making about accepting funding and, um, you know, how do we pivot to a virtual workforce? The really the most difficult decision, um, or challenge that we had to face was, was really just being a colleague and being an employee during the pandemic. You know, if I take off my hat as the general counsel or as the compliance officer, at the end of the day, I was experiencing the same employee experience as everybody else. Um, you know, I had to get used to working from home. I had to convert my gym to an office. I had to figure out zoom fatigue. I had to institute some discipline to get up from my desk and go have dinner with the family because work could be 24 7. I, I often would joke that I used to say before the pandemic that I was working from home and during the pandemic, I would say I'm living in the office<laugh>. Uh, and that was a challenge, um, a a challenge separate and distinct from my role as general counsel, but that really was the biggest challenge of the 18 months, was just being an employee like everybody else. And, um, one of the decisions I had to make was to, to reveal that and, and demonstrate to my colleagues that I was in this in many ways in the same boat as them. And I think as a leader, um, it's really important to, to think about being authentic and having transparency, um, with your own, you know, experience. And I think it created some credibility, um, when I would then put my general counsel hat back on and my, and my compliance officer hat back on because I was experiencing it myself, and I was able to bring that human experience to the decision making process. Um, so, you know, it was a challenge that I think most people don't expect me to reveal. They think, you know, I'm gonna talk more about the challenges of, of telehealth, but really it was a, it was much more personal level.
Speaker 2:Interesting, because one thing that we did learn during the pandemic, I think across in all industries, is how important it became for businesses to be more resilient and even more human focused. Um, so with that in mind, how can general counsel operate in a resilient and human focused way? But I know you also have to manage other areas like operations and technology, security risks and, and everything else.
Speaker 3:Yeah, you know, I, I think that, um, just in general as a leader, I find that people respond and respect humility and vulnerability. Um, and, you know, we talk at our organization about like what you do and how you do it. And so what I do is sort of what you were talking about managing other areas like technology and security risk, but how I do it, um, I think that general counsels are particularly well served by being human and, and not hiding behind the veneer of the law. Um, I often will tell people that the law is just a floor. Um, it's, it's a, it's a starting point and you don't wanna be below the floor, but really, you, you wanna be above the floor. And I often will try to bring into my analysis and my conversations, not just the law, but the right thing to do and, and being authentic with, you know, the, the impact that our decisions are gonna make on people, whether those people are our colleagues or our patients for whom we care, or the businesses that we, um, contract with. Uh, I think that creates a, a more inspiring experience and, and again, creates, I think the type of leadership that, uh, will resonate, um, and sort of illustrate the, the type of qualities you want, um, your colleagues to also exhibit.
Speaker 2:Yeah, I love that. Thank you. So, um, we, we also have learned that general counsel have played a much greater leadership role, even more so than before in response to the crisis. And legal has become so much more integrated into the wider business response. I mean, we see that, um, general counsel are much closer now to their chief human resources officers and to CEOs and, and you know, employment law comes up like so many different issues come up, but how many, how can businesses prepare themselves with continuity plans against future unknowns? Yeah. Hopefully not as big as as as the pandemic, but, but certainly there will be other future unknowns. Mm-hmm.
Speaker 3:<affirmative>, there will, there absolutely will be. Um, you know, investing in crisis management is like your insurance policy that hopefully you never need it, but you sure wanna make sure you've done it when that crisis pops up. Um, and I, you know, I was reflecting on this question a little bit and I was thinking, you know, what did we do or, or how were we set up to be able to weather the pandemic storm as well as we did, and, and would we do something differently going forward? And I think our experience proved that investing in senior leaders, senior managers, whatever your next, you know, your next couple tiers down from your executive team, so not just your C-suite, but the, the, the, the rising stars, the people who lead the day-to-day functions of your organization, investing in them, I think is your first line defense. Those are the, the boots on the ground people that really are gonna help, um, early detection, early intervention, um, they know how things work at a very intimate level and empowering them to be leaders during crisis is, is I think a really great strategy, not only for professional development and retention and all sorts of other good business reasons, but for the actual practical day-to-day getting through the crisis, having senior leaders that feel empowered, um, to engage and make proposals and lead projects really is a, a great frontline readiness strategy. And we saw that play out during our, um, pandemic, as I mentioned earlier, our day-to-day decision making governance really involved senior leaders. And it, you know, it helped us move quickly, which is one of the things you need to be able to do during crisis management. Um, so having as many like well-trained firefighters as possible, a deep bench I think is, um, a winning strategy to prepare yourself against, you know, future unknowns. Um, I know personally on my team, I spend a lot of time investing in the other lawyers and making sure they feel comfortable and empowered to make certain judgment calls. Um, it's, it's really, uh, you know, some degree of, of scalability. Um, and I want them to feel that they can step in when I'm, when I'm engaged in other work and in fact I need them to. So, um, I think that there's a little bit of, um, a win-win when you have senior leaders who are, who you've invested in to help navigate through, um, crises and, and day-to-day challenges.
Speaker 2:Thank you. I love that. Trained firefighters. I know when I, when I was practicing law, we called ourselves plumbers cuz we just fix problems, you know, but I think now it's much more of a firefighter. Thank you for that. So, um, you had talked earlier about this, about, um, the legal function becoming not only more business focused, but much more people focused during the crisis. Suddenly mental health of employees became so much more important. Uh, sustainable performance and diversity and inclusion have gained greater importance to the businesses and to delivering more value to clients. So in your view, how can general counsel encourage positive change and, and drive results in a much smarter way
Speaker 3:Now? Yeah. Um, so, you know, one of, I think one challenge that, uh, general counsels, um, sometimes face lawyers in general, perhaps not just general counsels, is, um, is this idea of, um, legal issues versus business issues. And it's a little bit of a trigger for me. I, I, I try not to indulge that black and white distinction between, um, what's a business term and what's a legal term. And I often will say to people when this comes up in conversation that there's really, they're really blurred together and they should be. And, and that it's a kind of a double helix relationship. And I, and I bring this up because my advice to general counsels and something I try very hard to, um, to showcase myself is my skills and my willingness to be a business partner. Um, I think that that is a, a key to, um, helping drive change and, and drive results is to being a very engaged business partner and not to let yourself or your colleagues pigeonhole you into this idea of like, you're just there for legal advice. Um, cuz everything about the business in, you know, comes back to or is linked to, um, you know, in some way some legal or compliance consideration. So, you know, when I talk with, um, younger lawyers or others, uh, or peers, we talk about our strategy of always asking why why are you doing something? Why is this a, you know, strategy versus a different strategy? Why do we wanna get out of this relationship? And really making sure you are exploring, um, with your business partners why we're doing something. Because oftentimes that gives you an opportunity not only to understand it better, but to, um, contribute to ways to achieve the same results without as much risk or achieve the same results through different, a different corporate structure or different contracting relationship. Um, and I also, I also say don't be afraid to take off your general counsel hat or your lawyer hat and just sit at the table as a smart person, um, and, and contribute your thoughts as just a, another brain at the table. Um, you know, I often will say to my colleagues, this isn't, uh, my legal opinion, this is just my business opinion, this is just my common sense. But don't be afraid to contribute beyond, you know, some sort of narrow, narrow swim lane of a lawyer. I think that's, um, part of the value that we can bring as general counsels.
Speaker 2:Great. Thank you. Okay, so we're, we're, we're heading into my last question. Um, in looking ahead, what lessons from the pandemic can be applied in the long run? Like what do you think are the next big trends and what should be on the general council agenda for 2022?
Speaker 3:I know, I can't believe<laugh>. Yeah. 2022 is right around the corner. It's like knocking out the door<laugh>. Um, well I think, you know, I'm, I think I'm not unique in, in my view that corporate America is never gonna look the way it used to. I, I don't anticipate, um, ever or possibly in, you know, definitely not in the near term, possibly ever, um, to return to a full in-person workforce. Um, I think that the, the, you know, my colleagues and, and people with whom I talk have become accustomed to a more hybrid or work from home flex schedule. And so, um, I think companies in general should plan to have employees that are spread out across the country. And so for a legal department, um, I think getting ready for 2022 means, um, dusting off your 50 state survey skills, uh, you know, payroll practices alone, uh, could, could, you know, tick up a fair amount of time. But understanding all the different, um, ways to operate in a multi-state environment, I think is, is going to be imperative for companies, um, going forward. Um, so, you know, looking into how to accommodate that and scale that way. The big trend I'm watching watching, um, is big data. I think that, you know, the pandemic just illustrated, um, the way in which people want to, um, look at data and think about trends. And I, and I don't think it's gonna be, um, limited to just the pandemic experience. I think big data is here to stay and, you know, as a healthcare lawyer, it, it has me geeking out on all sorts of issues like privacy and ownership and commercialization. Um, I think the stars that I have an amazing IT security colleague because I think tech security is going to be one of the, um, most important elements of, of companies that get involved in, in big data sharing and harvesting. So I would say, um, that trend is one that I'm keeping my eye on. Um, and it, and it, it also interests me because this goes back to my, i my idea of being sort of more than just the law. You know, big data is gonna be obviously a big area of legal regulation, but it really also brings up that parallel consideration around just doing the right thing as a company and, you know, making promises to your customers and your colleagues around how you're gonna handle the data and, you know, making sure it's private and secure and then doing that. Um, so I like this trend because not only is it full of legal challenges, but it comes back to your like moral compass and doing the right thing. And I think companies need to be thinking about those two factors in parallel. Um, and then the last thing I would say is on your 2022 agenda, um, you know, to show a trend of my own, I'm gonna come back to something I like to talk about, which is insurance. And I think cyber insurance is, um, gonna be a topic. Does your, I think, you know, general counsel should be prepared to explain to their board how they're addressing their cyber insurance vulnerabilities, um, and coverage. And so I would say start early to explore, um, the degree in which you have coverage and expand your coverage. Cause I think cyber insurance, um, is going to be, uh, something that, uh, boards and customers and, um, consumers care a lot about, um, in the coming years, especially if I'm, if I and the rest of the industry seem to be right about the big data trends.
Speaker 2:Interesting. Thank you. Well, we're at the end now, and Blair, thank you so much. This was so interesting. Uh, and
Speaker 3:Oh, thanks Nancy. I really appreciate it. I, you know, I feel passionate about what I do and I'm, um, always interested in opportunities to share my, um, my thinking and get feedback from colleagues. So, um, I appreciate the opportunity.
Speaker 2:Oh, and we appreciate you, you, so thank you so much. This was great.
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.