Hot Practice

By Margaret Graham Tebo

Health care law promises to provide many opportunities

FROM JUSTICE DEPARTMENT investigations of billing fraud to the challenges of managed care to the baby boom generation’s slide into old age, the opportunities for practitioners of health care law are almost as limitless as red blood cells coursing through an artery.

Indeed, the boom in health law specialties is so new that the American Bar Association’s own Health Law Section is only 3 years old, but it’s growing faster and larger than the average hospital bill.

Howard Wall is chair of the Health Law Section. He cites a range of issues, including managed care and payment reimbursement, accreditation and licensing, medical ethics, employee benefits for health care workers, litigation, and risk management as areas of potential practice for health care lawyers.

“The thing about specializing in health care law is that it’s really such a diverse specialty,” says Wall, who practices health law in Brentwood, Tenn. “Some lawyers make a whole career out of just one area, such as Medicare law, but most health care lawyers are really what we call health care generalists-they need to know about a lot of different areas of law as they apply within the tightly regulated health care system.”

Some of the issues the Health Law Section plans to explore in the next year or so include health care fraud, electronic privacy of medical records, risk management, and the growing number of uninsured Americans.

If some of these issues sound like topics other ABA sections are also exploring, the overlap is intentional.

“We have structured the section to have natural affiliations with other ABA organizations and to interact with other sections,” Wall says. “The idea is to bring a range of skills to the table to study and assess some of these huge issues that face the profession and the nation in the coming decades.”

Because it is so new, the Health Law Section has a great deal of work to do in determining its position on a variety of legislative proposals involving health care. Helping to research some of these issues is an excellent way for students to get involved, Wall says.

“We are really trying to utilize technology as a section,” he says. “We communicate primarily by e-mail, List Serves, and teleconferences. That’s an area where young lawyers and law students are often a lot more familiar than some of us old-timers. We welcome the help of enthusiastic students’ input.”

And, Wall points out, because many of the section’s meetings are via teleconference, the fees to “attend” are often within students’ budgets.

The section also provides free access for members to BNA Daily, a newsletter from the Bureau of National Affairs, a resource Wall calls “invaluable” for health care lawyers.

Among the other ABA sections with committees devoted to health care issues is the Elder Law Committee of the General Practice, Solo, and Small Firm Section. Chair Ed Beasley calls his specialty “probably the hottest area of law today.”

“When I started my practice 15 years ago, I thought it was for the love of the work. Now, I find that I am making a comfortable living because there are so many people in need of my services,” says Beasley, whose New Hampshire practice specializes in retirement planning and asset protection for seniors who need specialized health care.

One issue the committee worked on recently was the repeal of criminal sanctions for transferring assets to adult children or others in order to make the senior’s personal net worth low enough to help him or her qualify for government assistance with nursing home expenses. Another was the repeal of a gag order that had prevented lawyers and accountants from teaching seniors ways to qualify for those programs legitimately.

As the first wave of baby boomers reaches old age, the practice of this sort of law will grow exponentially, Beasley predicts.

Even the ABA’s Science and Technology Section has a committee dedicated to studying the impact of technology on health care. Issues such as DNA fingerprinting, medical privacy, and mandated coverage for experimental treatments are the focus of the committee’s work, says co-chair Wendy Mariner, a public health academic at Boston University.

Among the hottest issues Mariner’s group studies is the use of medical information to gather research for the development of future medical products and services. Doctors are often asked to test new medications or procedures in their practices, she notes, and effective research requires the doctors to provide certain background information about patients’ histories and other personal information. Patients, however, fear privacy invasion and even discrimination by employers and government programs when such personal information is disseminated.

Such issues also have implications for criminal law. A new law in England will require taking DNA samples from all convicted criminals for use in identifying perpetrators in future crimes. Misuse of such information could result in denial of health coverage or even employment based on susceptibility to disease uncovered from gathering of DNA samples after a minor offense.

Another big issue on the horizon, Mariner says, is the tug of war between those who feel they have been injured by the failure of managed care providers to cover certain treatments or tests and the commitment of managed care organizations to low-cost medical care.

Recent legislation has allowed greater freedom to sue managed care providers, which Mariner says may prompt some organizations to make coverage decisions based more on the likelihood of being sued than on the medical efficacy of the proposed test or treatment, raising costs for members.

“The range of issues on the horizon is almost limitless,” she says. “A lawyer who chooses to specialize in this area of law will find a variety of challenges.”

Margaret Graham Tebo, a former Student Lawyer student editor, is a writer, lawyer, teacher, and literary agent in suburban Chicago.