April 20, 2020

Chair's Column: The State of our Great Section

By John H McEniry IV, Fagron North America, Fairhope, AL

On March 31, 2020, I had the pleasure of delivering the first-ever virtual American Bar Association Health Law Section State of the Section address, which also recognized our Emerging Young Lawyers in Healthcare Award winners, Law Student Writing Competition winner, Burton Award winners, and Champion of Diversity and Inclusion Award winner.  For those of you who were not able to attend the State of the Section address and recognition of Health Law Section award winners, the transcript is reprinted below.

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Good morning to those of you in the western U.S., and good afternoon to those of you in the central and eastern parts of the country.  Thank you for joining us today.  For those of you whom I have not had the pleasure of meeting, my name is Jay McEniry.  I am the Chair of the American Bar Association Health Law Section for the 2019-2020 bar year, which runs from September 2019 to September 2020.

I’m joining you … well … from the sunroom in my home in Fairhope, Alabama.  For the past couple of weeks, I’ve been competing for office space with my wife and two children, both of whom are attending school virtually, so this room has become my makeshift home office.  Thanks for giving me the opportunity to put on real clothes.  The gym clothes that I have been wearing exclusively for the past couple of weeks really needed to be washed.

Just as this is an unprecedented time for all of us, it is also an unprecedented time for the Health Law Section.  This is our first-ever virtual State of the Section address!  The chair traditionally delivers the State of the Section address from the Emerging Issues in Healthcare Law conference, commonly referred to as “EMI,” which is the Health Law Section’s annual conference.  This year’s EMI was scheduled to begin in beautiful San Diego, CA just 20 days ago.  Unfortunately, for the first time in the 20-year history of EMI, the conference was cancelled. While I can’t speak for Alexandria, Hilary, Joyce, Bill, or the many Health Law Section chairs who preceded them, my guess is that every chair wishes to do something notable for the Section,   something for which he or she will always be remembered.  I’m not sure this is what I had in mind, though.  Thankfully, I have a few months left in my term to try to do better!

Speaking of EMI, I would like to thank EMI Planning Committee Co-chairs Brian Nichols (Robinson & Cole LLP) and Matt Fisher (Mirick O’Connell), as well as their Planning Committee members Jeff Calk (Waller), Joe Geraci (Husch Blackwell), Denise Hanna (Locke Lord LLP), William Mathias (Baker Donelson), Jennifer Mitchell (Dinsmore & Shohl), Kirsten McAuliffe Raleigh (Stevens & Lee) and Tiffany Navarro Santos (Trucker Huss APC), for their hard work and dedication to the Section.  The Committee worked for close to a year to plan a brilliant conference, community service project, and networking and social opportunities.  Just as they were putting the finishing touches on the conference … just a week before having an opportunity to view and enjoy the fruits of their labor … the conference was cancelled due to the COVID-19 pandemic.  Instead of allowing this disheartening development to get them down, the Committee and other Section leaders stepped up, quickly pivoted, and put together an outstanding set of conference offerings virtually.  This is a prime example of the dedicated servant leadership that makes the Health Law Section so successful.

Our servant leaders are the lifeblood of our Section.  They tirelessly donate their time, resources and expertise for the betterment of the Section and its members.  Though the COVID-19 pandemic has caused tremendous disruption in our personal and professional lives, many of our Section’s servant leaders immediately volunteered to serve on a COVID-19 Task Force, to work on policy issues surrounding the pandemic, and to otherwise serve member interests in this tumultuous time.  The larger ABA is also doing its part to address lawyer and public needs in this pandemic, establishing a task force to address the many issues that have or will arise.  Not surprisingly, the Health Law Section has been asked to participate on this task force.  Both the Health Law Section and the larger ABA task forces are still in their formative stages, so we welcome your suggestions and input.  If you have suggestions, professional or personal needs, or wish to volunteer your time, talents or treasures during this unprecedented time, please contact Section Director Simeon Carson, Associate Director Carol Simmons, or me.

Speaking of Simeon and Carol, I’d like to take a moment to say thank you for the hard work and dedication of the Health Law Section staff. While our servant leaders are the lifeblood of the Section, our staff is the heart that keeps that lifeblood moving efficiently and effectively through the Section’s body.  Simeon, Carol, Jason Billups, Paige Rodenberg, Daryl Taylor, and Sara Calvillo, we sincerely appreciate your tremendous efforts.  We couldn’t do it without you.

Despite some challenges faced by the larger ABA to maintain relevance in these changing times which has negatively impacted the Health Law Section, and despite more immediate challenges related to the COVID-19 pandemic, the Health Law Section remains a strong and vibrant Section.  Our budget has encountered some recent challenges given the loss of our annual conference, but we remain on sound financial footing.  Our largest area of exposure related to the conference, namely the contract with our conference hotel in San Diego, was masterfully addressed by Section officers.  I think that this was the first time in decades that your officers, all of whom are solely healthcare lawyers, have evaluated force majeure clauses and related business interruption insurance coverage issues.  It’s certainly the first time that I’ve evaluated such clauses since I was a baby litigation associate.  In any event, if you happen to see, speak with, or otherwise interact with Chair-Elect Hal Katz, Vice Chair Clay Countryman, Secretary Kathy Poppitt, Budget Officer Adrienne Dresevic, Immediate Past Chair Alexandria McCombs, or Past Chair and current Section Officers Conference Chair Hilary Young, please tell them “Thank You.”  They have spent early mornings, nights, and weekends over the past six weeks working through many tough decisions to guarantee the continued viability of the Section.  They are amazing leaders who have done amazing things during this very difficult time.

Speaking of finances, the Section could not accomplish its mission and goals without the support of its sponsors.  At EMI, I’d ask you to visit with our sponsors to thank them and explore opportunities to work with them.  Because we’ve gone virtual, I’m asking you to do the same … virtually!  Please take a moment and reach out to:

Five Star Premiere Section Sponsor:  American Arbitration Association

Four Star Premiere Section Sponsors:  Berkley Research Group and VMG Health

Three Star Premiere Section Sponsors:  Alix Partners and Pinnacle Healthcare Consulting

Please let these Premier Sponsors know that we appreciate their contributions to the Section, and consider exploring the ways in which these sponsors may help you and your clients.

Before I close, I’d like to note some other facts, figures, and recent accomplishments of the Section and its leaders:

  • Membership: 8,367
    • Lawyers: 4,999
    • Associate members: 257
    • Law Students: 3,111
    • The Section has seen attrition, particularly with lawyer members, over the past few years.  That said, the Section has maintained members well above the average of other Sections, Divisions, and Forums.  With the larger ABA’s introduction of its new rate structure and value proposition, we expect membership numbers to rebound across the Section and the larger ABA.
  • The Section partnered with ModioLegal to introduce a new mobile app ABA Health featuring audio of its bi-monthly The Health Lawyer and monthly ABA Health eSource articles.  We now have the opportunity to listen to these brilliant articles, most of which are drafted by Section members, at times and places that are more convenient to our busy lives.  Health Lawyer articles are also available for the first time in HTML format.
  • The Section continues to successfully develop and grow the Physicians Legal Issues: Healthcare Delivery & Innovation Conference (PLI), including new branding and a renewed partnership with the Chicago Medical Society.  At PLI 2019, Senators Dick Durbin (D-IL) and Bill Cassidy (R-LA) spoke on current and emerging legal issues affecting physicians.
  • The Section hosted another successful and innovative Washington Healthcare Summit (WHS) in December 2019.  In addition to many excellent presentations, attendees enjoyed two sessions hosted in the Senate Hearing Room in the Capitol Building.
  • Meetings with Senate Finance Committee members during WHS 2019 resulted in the creation of a Healthcare Privacy Working Group to continue work on important privacy issues with Senators and their staff members.  Section leaders Linda Malek (Moses & Singer LLP) and Clay Countryman (Breazeale Sachse & Wilson LLP) deserve special commendation for their efforts.
  • The Section submitted substantial comments to the new Stark and Anti-Kickback Statute rules in December 2019.  The Section also hosted two webinars on the new rules soon after the rules were released.
  • The Section co-sponsored the Health Law Roundtable, which was held in Taos, NM in January 2020.  The Section will continue to sponsor this fun and innovative Roundtable.
  • ABACLE has been proactive in developing many CLE options related to COVID-19. There’s a rich amount of free CLE, live and on-demand as a result. 
  • In collaboration with the American Health Lawyer’s Association, the Section also hosted two COVID-19 webinars in February 2020 featuring representatives from the Centers for Disease Control and Prevention.
  • The Section’s COVID-19 Task Force, led by Hayley Penan, has developed a resource page for members.

To close, I would like to thank you for joining us today.  I wish you, your colleagues, and your loved ones health and safety in the days and weeks to come.

We will now recognize our Emerging Young Lawyers in Healthcare Award Winners, Law Student Writing Competition winner, Burton Award winners, and Champion of Diversity and Inclusion Award Winner.

Emerging Young Lawyers in Healthcare Award Winners:

Ellee Cochran
Husch Blackwell
Austin, TX

Igor Gorlach
King & Spalding
Houston, TX

Robert F. Miller
Hooper, Lundy & Bookman PC
Los Angeles, CA

Hayley Penan
Office of Legislative Counsel
State of California, Sacramento, CA

Ashley L. Thomas
Morris, Manning & Martin LLP
Washington, DC

Law Student Writing Competition Winner:

Stephanie Flackman
Seton Hall University School of Law
Newark, NJ
The Debilitating Disease of Chronic Pain and the Case for Mandated Integration of Evidence-Based Alternatives Into Individualized Treatment Plans

The following The Health Lawyer articles and authors were recognized with prestigious Burton Awards this year:

  • Libby Baney (Faegre Baker Daniels) and Niamh Lewis (Circle 3 Law LLC)Internet Pharmacies: Trends, Opportunities and Risks, June 2019
  • Don Romano (Foley & Lardner LLP)Unlawful, Unfair and Unwise: Constitutional and Rulemaking Infirmities in CMS’ Enrollment Revocation Regulations and How to Challenge Them, August 2019
  • Kim Gold (Reed Smith LLP) and Marla Neufeld (Greenspoon Marder LLP)The As, Bs Cs (along with CDCs and FDAs) of Regulatory Implications over Assisted Reproductive Technology, December 2019

Champion of Diversity and Inclusion Award Winner:

David Hilgers
Husch Blackwell
Austin, TX