ABA Health eSource
August 2010 Volume 6 Number 12

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

David HilgersMy final Chair’s Column should be one waxing eloquently about the highlights of this year. Unfortunately, or fortunately for you, my final column is going to be more about inside baseball of the ABA than visionary. Because of the efforts that the Section is making to communicate with policymakers in D.C. and elsewhere, several people have raised the question as to what positions the ABA Health Law Section is authorized to take in those communications. In light of those questions, I thought it useful at this point in healthcare reform to outline the limits on the Health Law Section regarding the espousal of any particular position with government policymakers.

It is both one of the blessings and frustrations of belonging to the ABA that there are strong strictures regarding speaking on behalf of the Association.

First, no section is authorized to speak as a section on any particular position or point. Instead, only the ABA can take a position regarding a policy issue. Further, in order to secure the ABA’s approval of a position, there is an elaborate process within the ABA to get approval, whether that is the securing of what is called “blanket authority” or the approval of a resolution by the ABA House of Delegates. The one exception to the requirement of the House of Delegates approval is technical comments, which can be approved by the Board of Governors of the ABA as long as those comments are not in conflict with current Association policy or with other comments authorized to be submitted pursuant to a blanket authority procedure.

Without going into the details of the difficulties of securing authority to speak for the ABA, I can assure you that it is a very onerous process. The Health Law Section has sought to have a few resolutions passed by the House of Delegates. Not only is the process arduous, but ABA sections can be very territorial regarding areas of legal expertise. Therefore, it is very unlikely that any section can obtain approval on a highly contentious policy issue such as healthcare reform. Further, if it were possible, all interested parties would have had the opportunity to comment on the position.

However, that is not the half of it. The ABA Health Law Section also has a process which must be followed before any resolution can be submitted to the ABA. That policy is set forth in the Policy Review and Coordination Handbook of the ABA Health Law Section. To summarize the process, any proposed submissions must be submitted in advance to the Section Director, the Chair of the Policy Review and Coordination Committee, and the Section Chair. The Chair of the Policy Review and Coordination Committee then appoints a task force to prepare the draft submission. The members of the task force must be approved by the Section Chair and the proposed submission must be reviewed by a submission review subcommittee, which is appointed by the Chair of the Policy Review and Coordination Committee, subject to the approval of the Section Chair. The policy requires that any submission must be accurate, intellectually honest and balanced. It is only after going through this review that a proposed submission can be delivered to the ABA for its separate approval process. As you can see, there will be few submissions that can make it through the gauntlet set up by the Section and the ABA for the purpose of ensuring that there are no rogue comments coming from any of the sections.

Because of this limitation, as well as because of the Section leadership’s clear awareness of differing opinions throughout the Section on specific topics, the Section’s approaches and communications with government policymakers have not been in the form of advocacy. Instead, it has been the Section’s goal to establish communications with the various agencies and legislative staffers such that they feel free to discuss questions regarding problems that they perceive in the healthcare industry. Hopefully, the Section can provide facts and information about the workings of the healthcare industry and the implications of certain choices that might occur in policymaking. In Section meetings with these agencies, it is made clear that there is no Health Law Section policy on any of the items discussed. Instead, our conversations tend to be more of a practical nature as problems and options are considered. We struggle to make those as objectively as possible since we are very clear that the agencies are going to not find us credible if we attempt to take advocacy positions based on who we represent or our own biases. Further, it is our practice to participate in such discussions with a number of Section members who have different perspectives on the issues discussed.

Sometimes it seems very frustrating to have these strong limitations on the Section’s ability to speak regarding healthcare. On the other hand, without this kind of process, it might be possible for one particular perspective to take control of the Health Law Section’s agenda. Instead, the Health Law Section is best served by remaining an objective, nonpartisan resource that is knowledgeable and forthcoming about the issues facing the healthcare industry and the healthcare bar. We hope this approach will serve the health care bar well as we try to muddle through the complicated conundrum of health care policy, despite the annual Chair transition.

Now as my year in the Chair’s seat wanes, let me conclude this final column by expressing my deepest gratitude to you, the leadership and members of the Health Law Section. First of all, thanks for reading these columns. I have been pleasantly surprised how many of you actually read them. Although it has been a challenging year, it has also been very rewarding, and that is because of the associations and relationships I have developed over this year. I have commented in earlier columns about what I perceive to be the extraordinary collegiality and professionalism that is contained in the health law bar. Nothing has happened in this year that would change my opinion regarding the people that populate our Section. It has been great fun and I look forward to continuing those relationships.

I also have been blessed that I had the assistance of the greatest staff in the ABA. For all of my term, I have been able to rely on Jill Peña, Sena Leach, Abbey Palagi and Simeon Carson. It really doesn’t get better than that. As most of you know, Sena has resigned to take a job closer to home, and Jill shortly will be moving into a senior position within the ABA. I know that their replacements will be excellent, but I think I got the best part of the deal! My best wishes to Linda Baumann in her tenure as Chair. She, too, will have a trying year so I request, on her behalf, that everyone give her as much support as I was given. Thanks again.

The ABA Health eSource is distributed automatically to members of the ABA Health Law Section . Please feel free to forward it! Non-members may also sign up to receive the ABA Health eSource.