ABA Health eSource
 February 2007 Volume 3 Number 6

Chair's Column
by Paul R. DeMuro, Latham & Watkins LLP, San Francisco, CA

Paul R. DeMuroHaving received no substantive comments from our members as to what they might want me to address in this month's column, I thought I would take this space to discuss a most memorable recent event.

I had the privilege of being invited by a healthcare finance organization to present at the end of January, 2007 in Las Vegas on the revised International Health Regulations and moderate a panel on the topic: "What Hospitals and Medical Professionals Must Do to Respond to Pandemics and Calamities." The conference drew approximately 500 attendees from across the country. My co-presenters were Dr. Jim James, Director, Center for Public Health Preparedness and Disaster Response, American Medical Association; Robin Funston, the Director, Division of Healthcare Preparedness of the Health Resources Services Administration, Department of Health and Human Services; and Skip Skivington, the Interim Vice President of Supply Chain and Director of Operations Procurement and Supply, Kaiser Permanente.

A number of the finance professionals wondered why this group might be presenting to them, and asked me earlier in the week of what relevance this panel might be to finance professionals. In fact, an executive of another association suggested that these issues were not on the radar screen of his association's members. In discussions with legal professionals, I learned that many believed that these public health professionals would have little to say that was relevant to their everyday practice of law. In other words, this may be an interesting topic, but they did not see much legal work for them emanating from this area. Most of them had not even heard of the revisions to the International Health Regulations. It is with this in mind that I penned my article for the February 2007 edition of The Health Lawyer, entitled: "The International Health Regulations--Restricting Travel In Emergency Health Situations and Issues Health Care Providers Should Consider."

Over the last year or so, I developed a interest in the revisions to the International Health Regulations and their potential impact on the practice of healthcare law. As Chair of the ABA HLS and previously Chair-Elect, I have had the privilege of attending meetings at the United Nations in New York, the ABA Annual Meeting in Honolulu, the Medicine and the Law Committee of the International Bar Association in Chicago, and the Centers for Disease Control and Prevention in Atlanta where legal, public health and international healthcare issues have been discussed. In addition, I have met a number of international healthcare lawyers and public health officials from outside the United States, including several from the World Health Organization, and also had the privilege of discussing a number of healthcare related issues with lawyers from African nations.

In an interview with an individual from a London based publication, I suggested that the revisions to the international public health regulations would have an effect on the practice of healthcare law. The writer advised me that he had interviewed almost 30 U.S. healthcare lawyers and no one mentioned these regulations. Although I may be out of touch, on the off chance that I might be onto something, I thought I would share some of the remarks of my co-panelists, why they wanted to reach the financial executives, why they would like to reach traditional healthcare business lawyers, and why they think what they have to say is relevant.

Prior to the panel presentation, I had a delightful preparatory breakfast where each of the panelists explained how excited they were to be able to present to a wide variety of leaders in healthcare finance. They wanted the issues that they held near and dear to their hearts and all of our health to be on the radar screen of the finance professionals. They knew that in many instances these folks held the purse strings that would affect whether hospitals, physicians, and other providers would dedicate the appropriate resources to minimize the effects of a pandemic or calamity. I think they might consider presenting to a group of attorneys in the future since they recognize how key all of us are to facilitating the necessary agreements and relationships, addressing liability issues, handling credentialing, interpreting CMS' suspension of certain regulations, and the like in today's world in preparing for, during and after a pandemic or calamity.

I was captivated by Dr. James' presentation. He noted that the designers of the World Trade Center (Twin Towers) in Manhattan had planned for the possibility of a plane flying into the building. He noted that in the early l960s, however, when such planning occurred, the planes were substantially smaller, carried less fuel and weighed less. Apparently, no one anticipated how large planes would become and how much they would weigh in 2001 and what effect that such a plane might have. This reminded me of a round of golf that I was playing on Coronado Island over twenty years ago with a group of healthcare lawyers. This round was held before cell phones, but in the era of pagers. One of our colleagues in the foursome, a General Counsel of a large healthcare system, was paged with a note that one of the physicians on the medical staff had not completed his residency. In excusing himself, another member of our foursome asked the GC why he was about to run off. (We would not let him take the cart since our clubs were heavy and we had no caddy.) The GC noted that he had to find a phone to call the hospital to advise its representatives that they needed to check on the credentials of all of their physicians. Sure enough, later it was discovered that a number of physicians on the medical staff did not have the appropriate residency, schooling or whatever to be credentialed at the hospital.

Credentialing is at the core of addressing issues of a pandemic or calamity. A California physician and chair of the board of one of the hospitals for which I have the privilege of providing legal services was in Manhattan on 9/11. He went to a local hospital and all he could do was triage because he was not licensed to practice medicine in New York. Dr. James discussed a Physician Volunteer Registry. Although he was addressing why physicians were key in preparing for, during and after pandemics and calamities, much of his remarks addressed legal issues. Credentialing, patient confidentiality, informed consent, electronic medical records, insurance, telemedicine, liability, and good Samaritan laws sure seem like they are legal in nature. Add the legal issues associated with the lack of communication, potential waivers of certain regulations by CMS, transportation considerations, state licensing considerations, and the like and you have enough legal issues to keep any healthcare lawyer busy.

Robin Funston spoke about the coordination of competing healthcare resources, and discussed a number of the regulatory and accreditation considerations. She noted that healthcare competitors need to coordinate in advance what they might do in the event of a pandemic or calamity. It certainly sounded as if it would make sense to have legal agreements in place among the various healthcare constituencies in a local market defining what they might do jointly, the as well as the liability, insurance, and other issues which lawyers should anticipate and address.

Ms. Funston discussed the Emergency Systems for Advance Registration of Volunteer Health Professionals (ESAR-VHP) which seeks to establish a national network of state-based programs that effectively facilitate the use of health professional volunteers in the local, state and federal emergency response. She noted the credentialing levels that included Level 1--Verified Hospital Practice; Level 2--Verified Clinical Practice (non-hospital); Level 3--Verified State Licensure (in good standing); and Level 4--Verified Educational Experience--(no clinical verification). She also discussed how the government compiled, as of May 2006, a Legal and Regulatory Environmental Legal Analysis for all states.

Finally, Skip Skivington of Kaiser Permanente, who is a member of the State of California Joint Advisory Committee for terrorism preparedness, the American Health Insurance Plan's Disaster Readiness Committee, and The Conference Board's Business Continuity and Crisis Management Council, discussed what Kaiser was doing on more of a micro level and how important these issues were, how hospitals, physicians and other health professionals might be mobilized, how they related to each other, and why media spots might be helpful in sensitizing and preparing the public for pandemics such as bird flu. Perhaps, the most interesting comment he made to me was what happens when the system gets to the "tipping point." This apparently is when the effects of a calamity exceed the capacity of the system to handle it.

We as healthcare lawyers, have to take a leadership role in these areas. Dr. James noted that each physician has a responsibility for public health. I believe each healthcare lawyer also has such a responsibility to help facilitate through his/her legal advice, document drafting and the like, the preparation for a pandemic or calamity, the legal operational issues during such an event and thereafter. Montrece Ransom, one of our Interest Group Chairs, gave me a bumper sticker a few months ago at the CDC meetings in Atlanta that said "I love public health lawyers." This healthcare business and regulatory lawyer proudly immediately placed it on the bumper of his 18 year old car.

I leave you with this thought. One of the attendees who was not a plant (not that any of them were), had one of the closing comments. She said she was in a hotel working on a conference in New Orleans at the time of the hurricane. She said that the lack of communication was devastating, and how helpless everyone was and felt. We need to do our part in identifying those legal issues which will assist in assuring that all are better prepared in the future, address them and sell our clients on the idea that these are valuable services that we offer.

I was honoured and privileged to share the dais with such a group of committed professionals who gave of their time to better educate a few hundred financial professionals. I think we need to start doing a better job of educating our healthcare lawyers in such issues as the Section championed and the ABA House of Delegates agreed when we enacted ABA policy in August 2004.

Thoughts, concerns, observations ... My email address is paul.demuro@lw.com.

My best regards and thanks for reading.

Paul R. DeMuro