September 2011

Re: State of the ABA Health Law Section

We have come to the close of the 2010-2011 bar year and I have had the wonderful opportunity and daunting challenge to serve as the Chair of the ABA Health Law Section (“HLS” or “the Section”) during this time. As you know, there have been many major changes in health law during the past year. Meanwhile, the recession has taken a toll on the country as a whole, and on the ABA as well. Nevertheless, as a Section, we have worked to continue to meet your needs and fulfill our Mission Statement:

The ABA Health Law Section is dedicated to enhancing the practice of health lawyers and improving the understanding and development of health laws.

Towards this end, the Section seeks to be an effective leader in the profession and within the ABA while serving the needs of its members. It is important to us that you feel you are receiving the very best value for your investment in the Section. Accordingly, I would like to take this opportunity to summarize for you some of the primary activities that the Section has undertaken this past year on your behalf.

Starting the Year With a Survey to Identify Member Priorities

Our initiatives largely were determined as a result of the survey of HLS members we conducted just before the year started. The survey results indicated strong member interest in various aspects of health law reform, including increasing Section interaction with government officials, as well as in having the HLS continue to provide strong CLE programs and publications, particularly in this area of the law. In addition, members indicated that they greatly valued the opportunities that the Section provides for Interest Group (IG) membership and networking generally. (The survey also revealed a surprising number of HLS members who didn’t yet realize what IGs were, how to join them or that they were free.) A number of members also asked to be (and were) contacted personally to facilitate their further involvement in HLS activities. Finally, while many respondents indicated that the HLS was a place where they made “friends for life,” a few suggested that the HLS needed to be more inclusive and do more to promote leadership development. As a result, the Section has tried to focus its efforts this year on these areas.

I would also like to highlight the following Ongoing Section Activities:

In addition, I'd like to provide a few Administrative Updates.

Health Law Reform Educational Opportunities

The Section’s live conferences, webinars, teleconferences, and publications all featured many topics and materials designed to help educate our members on the growing body of laws and regulations related to healthcare reform, from a webinar on accountable care organizations (ACOs) held shortly after the proposed regulations were published, to articles and three special editions of the ABA Health eSource.The Health Lawyer also included articles on various aspects of health law reform. Presentations by key government officials, such as Elizabeth Fowler, Joy Pritts, and Sharis Pozen at the Washington Healthcare Summit and panels at our Emerging Issues and Physician Legal Issues conferences included key panels on healthcare reform. Several IGs held their own programs on relevant aspects of healthcare reform for IG members via teleconference such as the Fraud and Compliance IG’s teleconference on PPACA Integrity Initiatives.

Interactions with Government Officials

We started the year by submitting informal comments to CMS on the Stark Law Self-Disclosure Protocol, as a follow-up to our prior meeting with agency officials. The Section also responded to an Office of Inspector General (OIG) request for comments on the Special Advisory Bulletin on “The Effect of Exclusion from Participation in Federal Health Care Programs,” and is working with the Social Security Administration on FAQs related to its proposed e-signature authorization initiative. In December 2010, the Section provided suggestions on training materials and, in cooperation with the OIG, subsequently presented a teleconference on the newly issued Compliance Guidance for New Physicians.

Recently, the ACO Task Force prepared detailed comments which the Section submitted to CMS on the proposed ACO regulations. Another subgroup of the ACO Task Force, working with the ABA Antitrust Section, submitted comments on the DOJ/FTC Proposed Statement of Antitrust Enforcement Policy Regarding ACOs.

In addition, the Section, along with the ABA Standing Committees on Governmental Affairs and Medical Professional Liability presented a webinar designed to help educate Congressional staffers on some of the health law issues relevant to certain pending legislation.

Interest Groups Expand their Numbers and Activities

One of the greatest values that the Section offers its members is the opportunity to join up to three IGs for free. In light of the survey results indicating that many members were not aware of this fact, we took numerous steps to better publicize it. Meanwhile, Section IGs accepted the challenge to increase their members this year and many of them succeeded. In addition, most of the IGs expanded their programs by hosting special sessions at the Washington Healthcare Summit and/or Emerging Issues Conference for IG members. A few IGs offered free teleconferences and podcasts for their members. For instance, the Public Health and Policy IG recently produced a free podcast, “Medical Marijuana: A Public Health Legal Conundrum?” available on the Section’s website. One IG started a mentoring program that we hope to roll out to the other IGs in the future. A number of the IGs started using surveys to better respond to member needs. In addition, in response to member requests, the Section created two new task forces this year: the Long Term Care Task Force and the ACO Task Force. The Task Forces have already been very active and may ultimately evolve into IGs. A separate group for in-house counsel also is in the works.

A special thank you to all the IG and Task Force leaders for all their efforts this year to expand IG membership and programs.

Developing Section Leaders

This year, our leadership was one of the most diverse groups ever on a wide variety of criteria, including race, gender, practice setting and geographic location. We also convened the first leadership retreat to give officers and other key leaders an opportunity to develop Section goals and implementation strategies for the year. The retreat was very successful and led to several initiatives, such as the expansion of the IG leadership training program and the inclusion of all IG Chairs in a portion of the February Council meeting. Meanwhile, the Council itself implemented a mentoring program for new Council members.

Membership Advances

In addition, like many other professional associations, the ABA saw membership declines as a result of the recession. Since you must be a member of the ABA to become a member of the Health Law Section, Section memberships had begun to decline as well, so membership recruitment and retention necessarily became a focus this year. Our membership committee conducted a recruitment and retention audit of all membership related activities, providing a roadmap for future initiatives. I am extremely pleased to report that in contrast to most of the other ABA sections, our membership numbers are increasing.

We also have continued and expanded our outreach to law students, e.g., through developing a career-focused podcast entitled “Interested in a Career in Health Law?” to provide students with suggestions and strategies to enhance their job prospects in this very difficult job market. In addition, the annual Law Student Writing Competition attracted a whopping 30 entrants this year. The winning entry, “In Search of the Right Rx: Use of the Federal False Claims Act in Off-Label Drug Promotion Litigation” was submitted by Katherine A. Blair, and was published in The Health Lawyer.

Section efforts to be more inclusive led to the creation of several alternative events as part of the EMI conference this year. Conference attendees had the opportunity choose between attending a New Orleans cooking class, visiting the World War II Museum or playing in the Margarita Golf tournament. (Of course, some of us also took the opportunity of being in New Orleans the week before Mardi Gras to attend some of the parades.)

Enhanced Collaboration within the ABA

The Section’s Policy Review & Coordination Committee was extremely active this year and assessed numerous Reports and Resolutions scheduled to come before the ABA House of Delegates to ensure that the views of the Health Law Section were represented. The Section submitted a Report and Resolution on Direct to Consumer Genetic Testing which was approved by the ABA House of Delegates at the Annual meeting in August and is posted on the Section’s website. In addition, the ABA Board of Governors approved a request by the Health Law Section to have technical commenting authority on requests for comments issued by the various government agencies involved in the health law field.

The Section also reinstituted the dormant Health Law Coordinating Group this year. The initial call resulted in 20 ABA entities participating. However, over the year, participation grew to twenty-eight ABA entities and 45 participants. Quarterly calls were held to discuss issues of mutual interest, and the group was very helpful in facilitating various joint projects.

Ongoing Section Activities

Programs

In addition to the various new initiatives undertaken this year, the Section continued its efforts to provide resources and training that enhance your practice. One of the ways we achieve this goal is by making focused, targeted teleconferences and in-depth live conferences available. (Program materials from the live conferences are available for purchase through the ABA webstore: 2011 EMI | 2011 Physician Legal Issues)

Emerging Issues Conference: The 12th Annual Emerging Issues in Healthcare Law Conference was one of the highest attended EMI conferences in our Section’s history. There were a number of outstanding plenary and breakout sessions, networking opportunities and events specifically designed for law students and young lawyers. The Section will gather in San Diego, California, for the next conference on February 22 – 25, 2012.

Washington Healthcare Summit: The eighth annual Washington Healthcare Summit was an outstanding conference. This program always features top government speakers and private practitioners. Conference attendees heard from key Congressional staffers as well as senior agency officials including those in the FDA Office of Enforcement; the HHS Office of the National Coordinator for Health Information Technology; and the Fraud Section in the Department of Justice Commercial Litigation Branch; as well as prominent academics. The lunch was enlivened by an entertaining and informative address on medical marijuana by the Executive Director of the National Association of Boards of Pharmacy. The 2011 Washington Healthcare Summit will be held at the Ritz-Carlton, Pentagon City in Arlington, Virginia, on October 17-18.

Physician Legal Issues: The Section’s Annual Physician-Legal Issues Conference was expanded to a day and a half of CLE sessions and was held at Loyola University School of Law in Chicago. Sessions dealt with issues including physician compliance, quality improvement programs, physician employment, and social media in a physician’s practice. Lewis Morris of OIG/HHS was the featured luncheon speaker and the President of the American Medical Association opened the conference with an overview of post-PPACA issues. The next Conference will be in Chicago on June 14-15, 2012.

Distance Learning: Section teleconferences and webinars continue to be one of the most efficient ways of providing CLE to our members and others interested in health law. This is one of the best ways to learn about an array of timely issues and find specific educational offerings targeted at your individual practice area and level of experience. Overall, the Section provided 20 teleconferences on a wide range of topics, from the basics of Medicare/Medicaid to advanced Tax Issues for Healthcare Organizations. (If you missed them, these are all available for purchase through the ABA’s webstore.)

Publications and Electronic Communications

The Section is proud of its growing publication program:

The Health Lawyer: For over twenty years, the Section’s flagship publication has provided informative and in-depth articles that focus on a wide range of areas in the health law field. Published bimonthly, The Health Lawyer offers incisive analysis of timely and significant issues.

ABA Health eSource: Each month, the Section’s e-newsletter has helped keep members informed by providing the most recent health law news and resources. Readership for the newsletter continues to grow as many Section members forward it to colleagues and clients. Three special editions of eSource were also published on the recently released ACO regulations.

Books: The Section continues to publish various types of publications, from desk references/treatises to shorter “practical guides” on a variety of topics. Many of these publications are updated annually to ensure that the information provided is as up to date as possible.

Stark and Anti-Kickback Toolkit. The Section is very pleased with the development of a comprehensive on-line subscription-based topical library of the applicable laws, regulations and other guidance available on the Stark Law and federal anti-kickback statute. This publication will be an invaluable asset for conducting research and legal analyses of these complex areas of the law. The roll-out of this essential product is planned for the Fall of 2011. Be on the look out for the initial offering.

Breast Cancer Task Force

The Section continues to expand the Breast Cancer Task Force’s pro bono activities and I am very pleased to report that at the end of last year, this project received the prestigious SOC Meritorious Service Award recognizing a Section’s initiative that is of extraordinary benefit to the profession, the public, and the association. The initiative was developed to provide training to lawyers to enable them to counsel breast cancer patients on legal issues related to their condition and treatment. So far in 2011, training workshops were held in New Orleans and Chicago, with planning underway for programs in Ann Arbor, Sacramento, Arkansas, and New Mexico. Meanwhile, the Breast Cancer Advocacy Guide is in the process of being updated.

The partnership with the Cancer Legal Resource Center (CLRC) continues to grow, e.g., through Section co-sponsorship of the CLRC’s Cancer Rights Conferences. These one day conferences provide participants with comprehensive information on the most common cancer-related legal issues (and are not limited to breast cancer issues). Over 250 people attended the first conference this year, including physicians, nurses, patients and caregivers as well as lawyers. Two other conferences are scheduled for later this year.

Administrative Updates

New Staff: The Section was very fortunate to have been able to bring Wanda Workman on board as its new Director in November 2010. Wanda has worked at the ABA for 29 years, and served as the Associate Director for the Section of Tort and Insurance Practice for the past 11 years. Her experience helping to lead a large section has been invaluable. Amy Alder also joined us this Spring as the new Senior Meeting Planner, and has already become an essential member of the team. However, I also want to recognize Simeon Carson and Abbey Palagi who worked so hard for those many months while we were shorthanded.

The By-laws of the Section were amended to change the term of the Budget Officer to a single three-year term beginning with the 2012 fiscal year and to create the position of a non-voting Budget Officer-Elect, to serve a one-year term to coincide with the last year of the Budget Officer. These changes reflect the need for the Budget Officer to have an opportunity to develop expertise in the ABA’s accounting systems and other financial matters in order to be able to advise the Council. The Section’s Nominating Committee also was expanded to seven members in order to increase diversity among the committee’s members. Towards this end, the new by-law also provides that not more than one person from the same law firm or entity may serve on the Nominating Committee at the same time.

The ABA rolled out a new website in February, 2011 (Note the new domain name: www.americanbar.org). It continues to evolve as updates and structural improvements are made. If you see something that needs to be corrected or notice something missing, please let Simeon Carson know at simeon.carson@americanbar.org.

No one does this alone, and I have been privileged to work with outstanding leaders at all levels of the Section and a terrific staff. To name them all would take more time and space than I have but I want to extend my deep appreciation for all their hard work and enthusiasm. The Section Officers deserve special recognition: David Johnson, David Douglass, Kathye Scully-Hayes and Dan Cody. It was a pleasure to work with this team on many major issues and projects. I am especially pleased to leave you in the very capable hands of David Johnson, your 2011-2012 Section Chair.

While we faced a number of special challenges this past year, the previous leaders of the Section had built a strong foundation that was able to survive and even thrive despite these difficulties. However, you are the primary reason for the Section’s success, and your continued involvement is essential for us to fulfill our mission. Please stay involved and let us know if you have any suggestions. The Section is here to serve you!

Sincerely,

Linda A Baumann
2010-2011 Health Law Section Chair

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