December 2012 Volume 9 Number 4

Section Chair's Column: Relationships

By David L. Douglass, Shook, Hardy & Bacon L.L.P., Washington, DC

AuthorI place the Chair’s Corner columns of my predecessor David Johnson squarely in the “hard act to follow” category. David is not only an accomplished lawyer, he is a gifted writer. He is also a surfer, jazz aficionado, connoisseur of fine single-malt whiskeys and, need I say it, a Yale man. (As they say, “You can always tell a Yale man, you just can’t tell him much”). I have long admired David’s ability to draw on his diverse experiences to see relationships in a different light. Who else could lead off a column with the question, “So, what do Aretha Franklin, Herman Melville and a Nobel laureate in economics have in common?”1 David’s ability to reveal connections set a high bar for Chair’s columns. I have in mind specifically his columns on the wild fires in New Mexico, “Fire on the Mountain,”2 and his final column on the Council’s Spring Meeting, “Acoma,”3 in which he described the enlightening and moving presentations we received concerning the health and legal challenges faced by Native Americans living on tribal land and also of our tour of the Acoma Pueblo – the oldest continually inhabited community in North America, which sits atop a 367 foot high butte in New Mexico. David’s columns invariably caused me to take a break from the task at hand to reflect on relationships in different ways.

I have been thinking about relationships – context and connection – quite a bit recently. We are in the midst of a transformation in health law and policy that will affect every aspect of our practices. In the fraud enforcement context, my practice area, for example, over the past two decades government health law policy has focused on the threat that professional and financial relationships can pose to the cost-effective provision of healthcare goods and services. The Stark Law and the Anti-Kickback statute are intended to prohibit financial relationships that the government views as carrying the potential to corrupt the referral process. While the risk is inarguably real, the specific statutory remedy arguably sweeps too broadly, prohibiting beneficial relationships as well as detrimental ones. Referral relationships can reduce cost without compromising care. Similarly, privacy laws intended to protect the confidentiality of the physician-patient relationship can also be overbroad. Sometimes, a breach of strict patient confidentiality is just what the doctor ordered, for example disclosing information to a family member to ensure that a parent or relative is following the doctor’s orders. Statutes drafted in response to recognized harms that certain types of relationships can cause fail to recognize the benefits that those very same relationships can yield

Attacking relationships regardless of their purpose or effect can frustrate broader policy objectives. Looking at the record of exclusion, it certainly appears that the government has recognized that the theoretical benefit to the Medicare and Medicaid programs realized by exclusion, which essentially amounts to the government severing its relationship with the excluded entity, can be outweighed by the harm and disruption that would be inflicted on the programs’ beneficiaries.

The effort to reform healthcare is forcing the government to reevaluate its policies with respect to relationships in the healthcare goods and services industry. Whether through promotion of Accountable Care Organizations or the establishment of insurance exchanges, the government is encouraging policies and practices that create relationships, including referral inducements. This reevaluation not only promises to change fraud and abuse laws, the debate itself is already influencing how we assess violations of the law as it stands today.

My role as Chair of the Section affords me the luxury of experiencing the diversity of practices, issues and perspectives that our membership reflects beyond my own focused practice area. It is a joy and a privilege to work closely with leaders not only of our Section but of our profession. Not only do I learn from the breadth of their expertise but I am enriched by the quality of the relationships we have developed. I am grateful for each opportunity to pick up the phone to advance the mission of the Section, for it provides an excuse to check in, catch up and usually laugh a bit. Invariably I conclude these calls refreshed and reminded that in the final analysis, it’s all about relationships. The relationships we form and sustain through Section involvement are among the most valuable and lasting membership benefits.

As I draft this column, I am looking forward to seeing many of my Section colleagues at the Washington Health Law Summit, which has become the nation’s premier health law and policy conference. By the time the column is published, however, the Summit will be a fond memory of insightful presentations shared with valued colleagues. But we will be able to look forward to our next opportunity to study and enjoy relationships in the health law profession, the Emerging Issues Conference (“EMI”) – the only national health law conference dedicated to exploring new and emerging issues and challenges in health law and policy – February 20-23, 2013 in warm, vibrant Miami, Florida. EMI 2013 will examine the changing relationships that healthcare reform will trigger. We have long anticipated what shape reform will take. Now we are experiencing it. EMI 2013 will offer an unparalleled opportunity to hear from thought leaders on how healthcare reform is changing health law and policy, in a setting that will foster the formation and renewal of professional relationships.

The programs at EMI 2013 will focus on the changes that healthcare reform will bring about in 2013 and 2014 for employer obligations, managed care litigation, accountable care organizations and clinical integration efforts, HIPAA and HITECH requirements, non-profit governance and fraud enforcement. Building on popular past programs that reflect how relationships in the healthcare field are changing, there will be sessions on conflict resolution. Our newly formed Substance Use Disorder Task Force will present what promises to be an important and provocative panel, “Our Nation’s Veterans Courts and the Criminal Justice System: A Public Health Policy Approach.” We will also again offer our Breast Cancer Legal Advocacy Workshop. In short, there will be something for everyone. I am particularly looking forward to the session on “Why We Litigate: Government and In-House Counsel Analyze the Decisions that Motivate Their Organizations to Investigate and Litigate.”

EMI 2013 will also offer ample opportunities to form and renew relationships, including our Welcome Reception, a diversity reception and, of course what has become EMI’s signature tradition; the Margarita Cup Golf Outing. For those of us who are non-duffers there will be a Taste of South Beach Culinary Experience and Boat Tour. (For more information and to register, simply go to ambar.org/emi2013)

As health lawyers in an age of reform, we will be challenged to see relationships in new and different ways. We will have the opportunity and responsibility to contribute our expertise to the national effort to improve the quality of healthcare while lowering its cost. The chance to contribute to that mission collaboratively with colleagues whose knowledge we respect and whose company we enjoy is a blessing to savor.


1See The Health Lawyer, Vol. 24, No. 4 at 2, April, 2012.
2See The Health Lawyer, Vol. 24, No. 1 at 2, October, 2011.
3See The Health Lawyer, Vol. 24, No. 6 at 2, August, 2012.


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