ABA Health eSource
May 2010 Volume 6 Number 9

Chair's Column
By David W. Hilgers, Brown McCarroll, L.L.P., Austin, TX

David HilgersI was invited to participate in the Business Law Section’s spring meeting in Denver, held the last weekend in April. The primary reason for the invitation was to meet with the health law committee of the Business Law Section to talk about potential collaboration between the two organizations. For that purpose, the trip was very successful and I believe we have some opportunities to share expertise in collaborations around continuing education and publications. However, there was an unexpected benefit from my trip, which was the opportunity to hear the president of the National Black Chamber of Commerce, Harry C. Alford. Mr. Alford described the development of the National Black Chamber of Commerce and the story of his family’s life from slavery in Louisiana to their present positions. Very candidly, Mr. Alford described the enormous benefits that a focus on diversity can achieve for people of all categories and the country in general. He first pointed to the legislative requirements of the Civil Rights Bill in 1964, which effectively caused many of the universities in the country to admit Blacks. He recalled that this mandated diversity jump-started the emergence of a Black entrepreneurial class as those men and women went to college and obtained the tools they needed to become thriving members of our economic and political community.

He then described non-mandatory efforts of states, companies, and other organizations creating special resources to ensure that Black business owners were on an equal footing with others as they tried to secure employment, jobs, and contracts. He commented that it is not necessarily the legal mandate that achieves the most. Instead, the important effort is the focus on education and training to Black entrepreneurs that allows them understand the complexities of bidding and negotiating contracts, the intricacies of tax law, and the problems of human relations. He pointed to many success stories in which Black businesspersons of all types gained exposure and access to the mainstream business community and thrived because of these educational efforts. It was a very powerful story.

This talk reinforced my sense of pride in the ongoing commitment of the Health Law Section to diversity. Consistently throughout my involvement with the Health Law Section, everyone from staff, to leadership, to program committees—virtually everyone—has made diversity a major focus. This commitment is reflected in the comparative statistics between us and other sections in the ABA. The Health Law Section is always at the top in obtaining involvement of the diverse elements of our culture.

However, it is not something that can be taken for granted. We all too easily can drift into comfortable patterns in which we surround ourselves by familiar faces. If we don’t bring in new faces, different ethnic groups, and different life experiences, we are worse off. First, we personally miss out on much of what is interesting about life as we are exposed to new ideas of different demographic and ethnic groups with totally different life experiences. The Health Law Section also suffers if we fail to keep up with the demographic and ethnic shifts in our culture. This society does not remain static – it changes; and, if the Health Law Section does not appeal to those new, emerging groups of people, it will fail. Finally, the profession of law is harmed if it, too, fails to reflect the true diversity of our culture.

Mr. Alford talked about his initial foray into the Chamber of Commerce when there was only one chapter, in 1933. Now, it represents 95,000 Black-owned businesses and provides advocacy that reaches all one million Black-owned businesses. Imagine where we would be in this country had there been neither legal nor cultural efforts to bring this ethnic group into mainstream culture.

On a different note, to keep my promise of the last column to bring to your attention some of the hidden aspects of healthcare reform, I would point out the impact of healthcare reform on the so-called “concierge” care practices. Presently, there are a number of concierge care practices that provide services to Medicare patients while, at the same time, receiving payments from Medicare. They are able to charge this concierge fee only for services that are not covered or provided by Medicare. Heretofore, these payments have primarily been classified as payment for an annual physical since Medicare does not provide coverage for annual physicals (other than an initial physical upon becoming eligible for Medicare). The Patient Protection and Affordable Care Act, however, now provides that Medicare will pay for a wellness visit and risk assessment every year. The question arises as to whether or not these concierge care practices can now continue to charge a fee for an annual physical since Medicare will cover these wellness visits. We will not know what a “wellness visit” entails until there is greater explanation of what that visit involves. However, since these wellness visits become part of Medicare starting in 2011, concierge physicians need to very carefully watch that definition because it could put those concierge practices that charge additional fees to Medicare patients at risk of violating Medicare rules. The new law continues to give new and interesting twists to our healthcare practices.

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