April 4, 2025 • 19 mins
Travis G. Lloyd, Member, Bass Berry & Sims PLC, Emily Black Grey, Partner, Breazeale Sachse & Wilson LLP, and Claire M. Turcotte, discuss their experiences representing hospitals and health systems and how the field has changed over the years. They cover issues related to telehealth, site-neutral payments, co-location, and fraud and abuse. Travis, Emily, and Claire are co-editors of AHLA’s Representing Hospitals and Health Systems Handbook, Second Edition.
Watch the conversation here.
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Episode Transcript
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Speaker 1 (00:00):
Speaker 2 (00:04):
ALA's, popular Health Law Daily email
newsletter is now a dailypodcast exclusively for a HLA
premium members. Get all yourhealth law news from the major
media outlets on this newpodcast. To subscribe and add
this private podcast, feed toyour podcast app, go to
American health law.org/dailypodcast .
Speaker 3 (00:27):
Well welcome everyone to the podcast. My
name is Travis Lloyd. I am apartner at Bass Berry and Sims
in Nashville, Tennessee. Andtoday we are going to be
talking about ALA's recent,recently released second
edition of the representinghospitals and Health Systems
handbook. With me today are myfriends, Emily Gray and Claire
(00:50):
Turcott , and the three of us,along with one other person who
can't be here today. SusanSchau had the privilege of
editing this book. So before wejump in, Emily , would you
please introduce yourself?
Speaker 4 (01:03):
Sure. I'm Emily Gray. I am a partner at Brazil
Saxe and Wilson , uh, in BatonRouge, Louisiana. And my
practice primarily involvesregulatory compliance,
contracting matters forhealthcare providers, and you
know, Travis and Claire, youguys, I realized as we were
preparing for this, that it hasbeen 10 years since we started
(01:26):
work on the first editiontogether, which was back in
December, 2014. So , um, it'sbeen a labor of love for a long
time.
Speaker 3 (01:34):
And Claire ,
Speaker 5 (01:37):
Uh, thanks Travis.
So, yeah, my name's ClaireTurcott , and , um, most
recently I was an in-housecouncil role for a health
system in southwest Ohio whereI represented the strategy and
business development areas andreimbursement and also , uh,
certain health informationareas. Before that, I was a
partner in the brick and LERlaw firm , uh, for a number of
(02:00):
years where I focused ontransactions, fraud and abuse
and , um, provider based statusand some other regulatory
areas.
Speaker 3 (02:08):
Well, great. So I think before we get into it in
earnest, we, we simply have topause and thank the many, many
volunteers who made thispossible. Um, as I said, a big
thank you to our fourth editor,Susan Schau , who joined us at
the 11th hour and really helpedus get across the finish line.
(02:28):
Um, many thanks to the dozensof volunteer authors who wrote
and edited a huge amount ofcontent over a , uh, two, two
and a half year period , um,probably longer. Um,
and, and lastly, just a shoutout to the lead editors from
the first edition, the NishaNewman and Bob, who really put
(02:49):
us in a great place with all oftheir work on the first go
round . Um, I wanted to ask youall about your own experience
representing hospitals and howthat's changed over the years.
I think each of us hasorganized our practices around
hospitals and health systems,but what exactly that means is
different from person to person, and over time it changes. Um,
(03:11):
Claire , do you wanna talk alittle bit just about your,
your practice?
Speaker 5 (03:14):
Sure, yeah. Um, I, I think I've been practicing the
longest of the three of us, soI have kind of the, the longest
, uh, timeline to, to reflecton here. But , um, you know,
back in the day when I startedpracticing in the early 1990s ,
um, in Portland, Oregon, so inthe Pacific Northwest, I would
say that , um, young attorneysdidn't specialize as quickly as
(03:38):
they do today. So, for example,I joined a large , uh, Seattle
based law firm in theirPortland office, and they had a
rotation program where newassociates were expected to
rotate throughout differentdepartments of the firm for two
years, you know, fromlitigation to corporate real
estate, what have you. Um, andI did that and I pretty quickly
(04:00):
though gravitated towardscorporate law and health law
was sort of a subspecialtywithin corporate , um, and
that, that I saw at other firmsas well. It was not very common
for firms to actually have atrue health law practice. It
was more likely that there werehealthcare clients that
(04:21):
attorneys represented if theywere a corporate lawyer, they
were a tax lawyer, they were anemployee benefits lawyer, and
did, you know, pension work forphysician group practices and
so on. Um, ho hospital work wasoften done by employment
lawyers, for example. Um, andit was a number of years until
really the , the field ofhealth law came into its own.
(04:43):
It was really in its infancy atthat time. Um, and I was lucky
enough to be part of it as itwas really kind of unfolding. I
mean, to put it in perspective,the Stark Law was enacted in
1989, and I started practicingin 1992. So the first Stark
regulations came out when I wasa young associate, and I
learned them alongside, youknow, a lot of other attorneys
(05:05):
, um, at as they were, youknow, in real time as they were
happening. Um, there weren'treally a lot of deep experts at
that time, so it was really agreat opportunity to kind of
get in on the field early. Um,fast forwarding to my time in
Ohio in the two thousands , um,at that time, you know, the
(05:25):
Bricker Necker firm exclusivelyrepresented hospitals and a lot
of their practice historicallywas representing community
hospitals. And those communityhospitals started being , being
acquired by bigger systems, andthe bigger systems were really
growing their in-house legaldepartments. And so it became
(05:45):
apparent that really whatoutside law firms were gonna
have to offer those healthsystems was to be deeper
subject matter experts in morecomplex regulatory areas. Um,
you know, experts would beavailable for those in-house
teams to call upon when thoseissues came up periodically.
They weren't gonna have theresources to have experts
(06:07):
in-house so the outside firmscould, could offer that
expertise. So really theregulatory areas became more
and more prominent, I wouldsay, in my practice, even
though I maintained a practicein the transaction space.
Speaker 4 (06:22):
Well, and I'll jump in next. Um, you know, Claire ,
I think , um, next after you, Istarted practicing in the year
2000. Um, and looking back atit , it's , um, the evolution
of the practice has really beenpretty remarkable. Uh, we used
to be running around typing onour blackberries, which was
cutting edge technology. Um, alot of what we did for clients
(06:45):
was knowing who to talk to and, uh, where to look. Uh, the
internet and the informationthat was available was not as
broad as it is now. And oftenwe were serving as kind of
outside general counsel , uh,and again, having this, you
know, broad expertise, kind ofknowing all the different laws
(07:06):
that were applicable , uh, andthere were less of them. Um, so
fast forward to today, I mean,what I've seen over the course
of the last 25 years is, is areal narrowing of the practice.
I mean , you almost have tospecialize. Um, you do need to
know all the things, all theoutside general counsel type
things so that you can issuespot. Um, again, hearkening
(07:27):
back to the book where you needto be aware of potential
pitfalls and landmines. But,but often through the
consolidation that we've seenin healthcare, there are
in-house folks who can do a lotof what I used to do as a young
associate. Um, I've donethrough my career a lot of
licensing and providerenrollment work, for example.
And, you know , in the firstfive or 10 years of my
(07:49):
practice, we would just doeverything. We would fill out
forms, we would submit theforms, all the things. And now
really my role is moretroubleshooting for clients and
being able to escalate thingsto higher levels of authority
within different agencies. Uh,because a lot of the hospital
systems and even the hospitalshave in-house folks who can do
(08:12):
everything I used to do as ayoung associate, and , and they
aren't necessarily lawyers ,um, seeing a similar thing
happen in reimbursement. Um,for example, I did a fair
amount of managed care work asa young associate, and it would
include reviewing contracts.
Um, and often what I see now isthat hospitals, hospital
(08:35):
systems have a whole team offolks who do that. Uh, and
really, again, only need me ifsomething is specific, if there
is troubleshooting to do, ifthere is, you know, heavy duty
negotiating to do. Uh , so it'sbeen, you know, an interesting
ride. Um, it's always, it'salways something different,
which I think is one of thethings that, that many of us
(08:55):
love so much about health law ,uh, and things tend to come in
waves across my desk. Uh, forexample, you know, Tala is one
of the things that's close tomy heart, and I I really
haven't seen much in the last,you know, for maybe five or six
years I didn't see much at all.
And then there's been this kindof new wave across my desk ,
um, which is, you know,interesting, exciting, and ,
(09:17):
uh, makes every day a littledifferent. So, Travis, I know
you are, you know, the third ofus and started a little later
than I did.
Speaker 3 (09:25):
Yeah, I'm, I'm the runt of the litter. Um ,
having started practicein 2008, but , um, even in that
short amount of time , um, haveseen a lot of the, the same
general trends that you bothdescribed, that is sort of the
increased specialization,particularly as someone who has
always been outside counsel inthe law firm setting. Um, the
(09:46):
need to sort of dive deeper ,um, and sort of the, the nature
of the work that's done , uh,the way that work is generally
done for hospitals and healthsystems , just changing the
more insourcing of a lot of ,um, more routine tasks,
contract review , um, thingslike licensure and provider
enrollment, like you said,Emily , um, you know, that that
changes the way that , um, the, the services ultimately that
(10:11):
the outside lawyer provides.
And it also reflects the kindof heavy load that in-house
counsel has the incrediblemandate , um, or the incredible
responsibility that in-housecounsel has to, to keep up with
a lot of different issues.
Hence the need for a prettycomprehensive book like this.
Um, I think even in my, youknow, in my short practice,
(10:33):
I've seen it from a lot ofdifferent angles. I think I
started out doing a lot ofmedical staff or peer review
hearings, medical staff bylaws,review , things like that. Um,
and then spent the bulk of myearly years basically buying
and selling hospitals,essentially doing diligence on
hospital systems and workingthrough those issues as they
came up. That was sort of, thatwas good training, and it also
(10:55):
helped me to sort of refine myinterests , um, and ultimately,
you know , helped , helped mebecome more specialized , um,
spending, you know, all day on,on stark law problems or a
narrow range of hospitalspecific reimbursement issues
like provider based status,things like that. Um, frankly,
(11:15):
it, it amazes me how muchmileage you can get out of a
very small issue. I think, forexample, of something like
co-location, that's a prettynarrow issue, , but it
is unbelievable how manyquestions come up there, or
even to get even narrower.
Think of like the Medicare ,um, activation of claims
(11:35):
validation edits formulti-campus hospitals. This is
like a tiny, tiny change thathappened in the, the past year
or so , um, that resulted in ,um, a lot of problems for
clients , um, that no onereally knew anything about
because it involved a backendclaims processing system that
the Medicare administrativecontractors themselves couldn't
(11:58):
, in most cases, fully resolvethe problem. Um, I think that's
just my point there is that ,um, small issues become, not
just become big headaches, buthave that the , the sort of
specialization necessary forthe hospital lawyer to do his
or her job has , has onlyincreased over time. Um, and
(12:19):
the , you know, the, the sortof the demands for expertise
are, are high and I think onlygrowing , um, only deepening.
So ,
Speaker 5 (12:28):
Yeah, I think you make a great point there,
Travis, because some changethat Medicare makes , uh, or,
you know, a , a change in astatute or something can spur a
whole specialized area. I mean, um, you know, you and I both
practiced in the provider basedstatus space , but you know,
who knew back in 2015 when ,um, you know, the budget act
(12:51):
was enacted that all this siteneutral payment , uh, changes
would become such a big issue.
I mean, provider based statushad been on the books for a
number of years before that. Itwas kind of a checklist issue
that you would consider incertain situations, but it
really wasn't as prominent asit is today. Uh, when I was in
(13:12):
my in-house role, really any,any time there was a question
about opening a new service,moving, moving something to a
different space, you know,there was a , uh, a team of
people from, you know, realestate reimbursement, myself as
legal counsel that would lookat these issues and figure out,
you know, can we do this? Canwe build this hospital? Should
we build this hospital? Andthen the intersection of that
(13:34):
with the three 40 B program ,um, that became a , a very
specialized area that , um, youknow, that I had the
opportunity to advise on , uh,10 years ago, that wasn't a
thing. really , um,maybe a little more than 10
years ago before, before theend of 2015, that really wasn't
, um, so much of a focus. Sothings do go in waves, and I
(13:58):
think one of the things I'vealways , um, said to young
attorneys that are, you know,thinking about whether they
wanna be a health lawyer is you, you really need to be a
lifelong learner type. I mean,if you're not somebody who's
game for , uh, reading newregulations and sort of
learning whole new schemes,maybe it's not for you. I've
always found that to be , um,interesting and exciting and,
(14:20):
and what's sort of kept , keptme , um, in the field. Um, but
you do have to be somebodythat's willing to kind of roll
up your sleeves and, and learna lot of new law. There's a lot
of information out there, youknow , um, Emily, you mentioned
the internet. I actuallystarted practicing before the
internet existed a couple ofyears before that. And so,
yeah, knowing where to get acopy of the new regulation or
(14:43):
guidance was, was prettyimportant. It wasn't all just
posted on the internetinstantly. Um , today you can
Google and get a lot ofinformation, but it's almost
like the, the challenge is ,um, you know, wading through
that and trying to find theright resource.
Speaker 4 (14:59):
Claire , I like your story about, you know, as a
young associate, your job wasto go to the library , um,
to get a copy of therank . That's right. You know ,
it shows you, I mean, like howrapidly everything is changing.
The other thing that occurs tome as I listen to you guys talk
about, for example, three 40 B, um, it's important to have, I
(15:20):
think, a team, it is much moredifficult to practice health
law alone as a solo , um, three40 BI know it's an issue. You
know, for example, I had aclient , uh, this week that
wants to set up a new site andthey kind of wanna, you know,
put it together with theirexisting site. And it's like,
whoa, whoa, I know you guyshave three 40 B drugs. Are you
planning that for the new site?
If we do, we need to dig intoit and look at it. And
(15:42):
fortunately, there's somebodydown the hall , um, or one of
you guys , um, who does work inthe three 40 B space. But
having kind of a team, which wesee in-house and now really at
the law firms, is somethingthat wasn't as necessary , uh,
previously. Um, additionally,one of the areas that I think
has changed remarkably and isreally exciting , um, is
(16:04):
telehealth . We were reallylooking at, you know, very
limited use of telehealth. Ithink something like 40% of ,
um, hospitals were even engagedin telehealth, and folks were
excited about that number,right? And there were a lot of
geographic restrictions. Uh, itwas really primarily intended
to be used in rural areas. Uh,there wasn't this concept of
(16:27):
patients using telehealth intheir homes. Fast forward to
today, and I mean, it is everchanging , um, since the
pandemic, we've seen this realchange in what's allowed , um,
areas, provider typesreimbursement , uh, and we are
watching all the time to see ifour , uh, the waivers issued
(16:49):
during the pandemic are goingto be extended. And so I think
it was at the end of last year,they were extended through
March 31st, and then on March20th, they were extended
through the end of Septemberthis year. So , uh,
particularly in telehealth,that is a fantastic example of
where we can all see , uh, howquickly things have changed.
Speaker 5 (17:11):
Yeah, certainly a lot has changed pre pandemic,
you know, from pre pandemic topost pandemic in another, in a
number of areas. Um, you know,one of the areas I referenced a
little bit earlier that haschanged is in the provider
based status or site neutralpayment area. Uh, that budget
act , uh, section 6 0 3 of theBipartisan Budget Act of 2015
(17:34):
was enacted. That started, kind, started the whole site
neutral payment issue. Um, and,but since that time, there have
been a number of additionaldevelopments in that area. For
example , um, in the 21stCentury Cures Act amended that
section 6 0 3 to create a fewexceptions, for example,
(17:55):
hospitals that were midwaythrough building a new location
at the time that that law wasenacted , uh, got an exception
, uh, cancer hospitals and soon. Um, in addition, CMS
limited , um, to the siteneutral to the, to the
physician fee schedule rate ,uh, for hospital outpatient
(18:15):
clinic visits. Um, so there's anumber of things that have
changed in that area since thattime. Um, also, Travis, you
mentioned colocation. So CMScame out with our co-location
guidance , um, and that reallyhas to do with two facilities
that are in the same location,two different separately
(18:35):
enrolled facilities. And so ,um, that, you know, raises a
number of different issues interms of space planning and so
on , um, that, that , thatdefinitely need to be
considered.
Speaker 3 (18:48):
Yeah, no, that's great. Um, so I was, I was
gonna mention fraud and abuse.
Um, generally, and obviouslythere , there's nothing
fundamentally new about fraudand abuse risks for hospitals,
but that doesn't mean theydon't require a lot of
attention. , um, afterall, we're, we're one year
removed or so from the singlelargest stark based FCA
(19:09):
settlement of all timeinvolving the hospital's , uh,
arrangements with employedphysicians. So stark and
kickback issues are always topof mind. Um, thank you all very
much for, for joining us. Havea good day.
Speaker 2 (19:28):
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Speaker 2 (00:04):
ALA's, popular Health Law Daily email
newsletter is now a dailypodcast exclusively for a HLA
premium members. Get all yourhealth law news from the major
media outlets on this newpodcast. To subscribe and add
this private podcast, feed toyour podcast app, go to
American health law.org/dailypodcast .
Speaker 3 (00:27):
Well welcome everyone to the podcast. My
name is Travis Lloyd. I am apartner at Bass Berry and Sims
in Nashville, Tennessee. Andtoday we are going to be
talking about ALA's recent,recently released second
edition of the representinghospitals and Health Systems
handbook. With me today are myfriends, Emily Gray and Claire
(00:50):
Turcott , and the three of us,along with one other person who
can't be here today. SusanSchau had the privilege of
editing this book. So before wejump in, Emily , would you
please introduce yourself?
Speaker 4 (01:03):
Sure. I'm Emily Gray. I am a partner at Brazil
Saxe and Wilson , uh, in BatonRouge, Louisiana. And my
practice primarily involvesregulatory compliance,
contracting matters forhealthcare providers, and you
know, Travis and Claire, youguys, I realized as we were
preparing for this, that it hasbeen 10 years since we started
(01:26):
work on the first editiontogether, which was back in
December, 2014. So , um, it'sbeen a labor of love for a long
time.
Speaker 3 (01:34):
And Claire ,
Speaker 5 (01:37):
Uh, thanks Travis.
So, yeah, my name's ClaireTurcott , and , um, most
recently I was an in-housecouncil role for a health
system in southwest Ohio whereI represented the strategy and
business development areas andreimbursement and also , uh,
certain health informationareas. Before that, I was a
partner in the brick and LERlaw firm , uh, for a number of
(02:00):
years where I focused ontransactions, fraud and abuse
and , um, provider based statusand some other regulatory
areas.
Speaker 3 (02:08):
Well, great. So I think before we get into it in
earnest, we, we simply have topause and thank the many, many
volunteers who made thispossible. Um, as I said, a big
thank you to our fourth editor,Susan Schau , who joined us at
the 11th hour and really helpedus get across the finish line.
(02:28):
Um, many thanks to the dozensof volunteer authors who wrote
and edited a huge amount ofcontent over a , uh, two, two
and a half year period , um,probably longer
and, and lastly, just a shoutout to the lead editors from
the first edition, the NishaNewman and Bob, who really put
(02:49):
us in a great place with all oftheir work on the first go
round . Um, I wanted to ask youall about your own experience
representing hospitals and howthat's changed over the years.
I think each of us hasorganized our practices around
hospitals and health systems,but what exactly that means is
different from person to person, and over time it changes. Um,
(03:11):
Claire , do you wanna talk alittle bit just about your,
your practice?
Speaker 5 (03:14):
Sure, yeah. Um, I, I think I've been practicing the
longest of the three of us, soI have kind of the, the longest
, uh, timeline to, to reflecton here. But , um, you know,
back in the day when I startedpracticing in the early 1990s ,
um, in Portland, Oregon, so inthe Pacific Northwest, I would
say that , um, young attorneysdidn't specialize as quickly as
(03:38):
they do today. So, for example,I joined a large , uh, Seattle
based law firm in theirPortland office, and they had a
rotation program where newassociates were expected to
rotate throughout differentdepartments of the firm for two
years, you know, fromlitigation to corporate real
estate, what have you. Um, andI did that and I pretty quickly
(04:00):
though gravitated towardscorporate law and health law
was sort of a subspecialtywithin corporate , um, and
that, that I saw at other firmsas well. It was not very common
for firms to actually have atrue health law practice. It
was more likely that there werehealthcare clients that
(04:21):
attorneys represented if theywere a corporate lawyer, they
were a tax lawyer, they were anemployee benefits lawyer, and
did, you know, pension work forphysician group practices and
so on. Um, ho hospital work wasoften done by employment
lawyers, for example. Um, andit was a number of years until
really the , the field ofhealth law came into its own.
(04:43):
It was really in its infancy atthat time. Um, and I was lucky
enough to be part of it as itwas really kind of unfolding. I
mean, to put it in perspective,the Stark Law was enacted in
1989, and I started practicingin 1992. So the first Stark
regulations came out when I wasa young associate, and I
learned them alongside, youknow, a lot of other attorneys
(05:05):
, um, at as they were, youknow, in real time as they were
happening. Um, there weren'treally a lot of deep experts at
that time, so it was really agreat opportunity to kind of
get in on the field early. Um,fast forwarding to my time in
Ohio in the two thousands , um,at that time, you know, the
(05:25):
Bricker Necker firm exclusivelyrepresented hospitals and a lot
of their practice historicallywas representing community
hospitals. And those communityhospitals started being , being
acquired by bigger systems, andthe bigger systems were really
growing their in-house legaldepartments. And so it became
(05:45):
apparent that really whatoutside law firms were gonna
have to offer those healthsystems was to be deeper
subject matter experts in morecomplex regulatory areas. Um,
you know, experts would beavailable for those in-house
teams to call upon when thoseissues came up periodically.
They weren't gonna have theresources to have experts
(06:07):
in-house so the outside firmscould, could offer that
expertise. So really theregulatory areas became more
and more prominent, I wouldsay, in my practice, even
though I maintained a practicein the transaction space.
Speaker 4 (06:22):
Well, and I'll jump in next. Um, you know, Claire ,
I think , um, next after you, Istarted practicing in the year
2000. Um, and looking back atit , it's , um, the evolution
of the practice has really beenpretty remarkable. Uh, we used
to be running around typing onour blackberries, which was
cutting edge technology. Um, alot of what we did for clients
(06:45):
was knowing who to talk to and, uh, where to look. Uh, the
internet and the informationthat was available was not as
broad as it is now. And oftenwe were serving as kind of
outside general counsel , uh,and again, having this, you
know, broad expertise, kind ofknowing all the different laws
(07:06):
that were applicable , uh, andthere were less of them. Um, so
fast forward to today, I mean,what I've seen over the course
of the last 25 years is, is areal narrowing of the practice.
I mean , you almost have tospecialize. Um, you do need to
know all the things, all theoutside general counsel type
things so that you can issuespot. Um, again, hearkening
(07:27):
back to the book where you needto be aware of potential
pitfalls and landmines. But,but often through the
consolidation that we've seenin healthcare, there are
in-house folks who can do a lotof what I used to do as a young
associate. Um, I've donethrough my career a lot of
licensing and providerenrollment work, for example.
And, you know , in the firstfive or 10 years of my
(07:49):
practice, we would just doeverything. We would fill out
forms, we would submit theforms, all the things. And now
really my role is moretroubleshooting for clients and
being able to escalate thingsto higher levels of authority
within different agencies. Uh,because a lot of the hospital
systems and even the hospitalshave in-house folks who can do
(08:12):
everything I used to do as ayoung associate, and , and they
aren't necessarily lawyers ,um, seeing a similar thing
happen in reimbursement. Um,for example, I did a fair
amount of managed care work asa young associate, and it would
include reviewing contracts.
Um, and often what I see now isthat hospitals, hospital
(08:35):
systems have a whole team offolks who do that. Uh, and
really, again, only need me ifsomething is specific, if there
is troubleshooting to do, ifthere is, you know, heavy duty
negotiating to do. Uh , so it'sbeen, you know, an interesting
ride. Um, it's always, it'salways something different,
which I think is one of thethings that, that many of us
(08:55):
love so much about health law ,uh, and things tend to come in
waves across my desk. Uh, forexample, you know, Tala is one
of the things that's close tomy heart, and I I really
haven't seen much in the last,you know, for maybe five or six
years I didn't see much at all.
And then there's been this kindof new wave across my desk ,
um, which is, you know,interesting, exciting, and ,
(09:17):
uh, makes every day a littledifferent. So, Travis, I know
you are, you know, the third ofus and started a little later
than I did.
Speaker 3 (09:25):
Yeah, I'm, I'm the runt of the litter. Um ,
short amount of time , um, haveseen a lot of the, the same
general trends that you bothdescribed, that is sort of the
increased specialization,particularly as someone who has
always been outside counsel inthe law firm setting. Um, the
(09:46):
need to sort of dive deeper ,um, and sort of the, the nature
of the work that's done , uh,the way that work is generally
done for hospitals and healthsystems , just changing the
more insourcing of a lot of ,um, more routine tasks,
contract review , um, thingslike licensure and provider
enrollment, like you said,Emily , um, you know, that that
changes the way that , um, the, the services ultimately that
(10:11):
the outside lawyer provides.
And it also reflects the kindof heavy load that in-house
counsel has the incrediblemandate , um, or the incredible
responsibility that in-housecounsel has to, to keep up with
a lot of different issues.
Hence the need for a prettycomprehensive book like this.
Um, I think even in my, youknow, in my short practice,
(10:33):
I've seen it from a lot ofdifferent angles. I think I
started out doing a lot ofmedical staff or peer review
hearings, medical staff bylaws,review , things like that. Um,
and then spent the bulk of myearly years basically buying
and selling hospitals,essentially doing diligence on
hospital systems and workingthrough those issues as they
came up. That was sort of, thatwas good training, and it also
(10:55):
helped me to sort of refine myinterests , um, and ultimately,
you know , helped , helped mebecome more specialized , um,
spending, you know, all day on,on stark law problems or a
narrow range of hospitalspecific reimbursement issues
like provider based status,things like that. Um, frankly,
(11:15):
it, it amazes me how muchmileage you can get out of a
very small issue. I think, forexample, of something like
co-location, that's a prettynarrow issue,
is unbelievable how manyquestions come up there, or
even to get even narrower.
Think of like the Medicare ,um, activation of claims
(11:35):
validation edits formulti-campus hospitals. This is
like a tiny, tiny change thathappened in the, the past year
or so , um, that resulted in ,um, a lot of problems for
clients , um, that no onereally knew anything about
because it involved a backendclaims processing system that
the Medicare administrativecontractors themselves couldn't
(11:58):
, in most cases, fully resolvethe problem. Um, I think that's
just my point there is that ,um, small issues become, not
just become big headaches, buthave that the , the sort of
specialization necessary forthe hospital lawyer to do his
or her job has , has onlyincreased over time. Um, and
(12:19):
the , you know, the, the sortof the demands for expertise
are, are high and I think onlygrowing , um, only deepening.
So ,
Speaker 5 (12:28):
Yeah, I think you make a great point there,
Travis, because some changethat Medicare makes , uh, or,
you know, a , a change in astatute or something can spur a
whole specialized area. I mean, um, you know, you and I both
practiced in the provider basedstatus space , but you know,
who knew back in 2015 when ,um, you know, the budget act
(12:51):
was enacted that all this siteneutral payment , uh, changes
would become such a big issue.
I mean, provider based statushad been on the books for a
number of years before that. Itwas kind of a checklist issue
that you would consider incertain situations, but it
really wasn't as prominent asit is today. Uh, when I was in
(13:12):
my in-house role, really any,any time there was a question
about opening a new service,moving, moving something to a
different space, you know,there was a , uh, a team of
people from, you know, realestate reimbursement, myself as
legal counsel that would lookat these issues and figure out,
you know, can we do this? Canwe build this hospital? Should
we build this hospital? Andthen the intersection of that
(13:34):
with the three 40 B program ,um, that became a , a very
specialized area that , um, youknow, that I had the
opportunity to advise on , uh,10 years ago, that wasn't a
thing.
years ago before, before theend of 2015, that really wasn't
, um, so much of a focus. Sothings do go in waves, and I
(13:58):
think one of the things I'vealways , um, said to young
attorneys that are, you know,thinking about whether they
wanna be a health lawyer is you, you really need to be a
lifelong learner type. I mean,if you're not somebody who's
game for , uh, reading newregulations and sort of
learning whole new schemes,maybe it's not for you. I've
always found that to be , um,interesting and exciting and,
(14:20):
and what's sort of kept , keptme , um, in the field. Um, but
you do have to be somebodythat's willing to kind of roll
up your sleeves and, and learna lot of new law. There's a lot
of information out there, youknow , um, Emily, you mentioned
the internet. I actuallystarted practicing before the
internet existed a couple ofyears before that. And so,
yeah, knowing where to get acopy of the new regulation or
(14:43):
guidance was, was prettyimportant. It wasn't all just
posted on the internetinstantly. Um , today you can
Google and get a lot ofinformation, but it's almost
like the, the challenge is ,um, you know, wading through
that and trying to find theright resource.
Speaker 4 (14:59):
Claire , I like your story about, you know, as a
young associate, your job wasto go to the library , um,
it shows you, I mean, like howrapidly everything is changing.
The other thing that occurs tome as I listen to you guys talk
about, for example, three 40 B, um, it's important to have, I
(15:20):
think, a team, it is much moredifficult to practice health
law alone as a solo , um, three40 BI know it's an issue. You
know, for example, I had aclient , uh, this week that
wants to set up a new site andthey kind of wanna, you know,
put it together with theirexisting site. And it's like,
whoa, whoa, I know you guyshave three 40 B drugs. Are you
planning that for the new site?
If we do, we need to dig intoit and look at it. And
(15:42):
fortunately, there's somebodydown the hall , um, or one of
you guys , um, who does work inthe three 40 B space. But
having kind of a team, which wesee in-house and now really at
the law firms, is somethingthat wasn't as necessary , uh,
previously. Um, additionally,one of the areas that I think
has changed remarkably and isreally exciting , um, is
(16:04):
telehealth . We were reallylooking at, you know, very
limited use of telehealth. Ithink something like 40% of ,
um, hospitals were even engagedin telehealth, and folks were
excited about that number,right? And there were a lot of
geographic restrictions. Uh, itwas really primarily intended
to be used in rural areas. Uh,there wasn't this concept of
(16:27):
patients using telehealth intheir homes. Fast forward to
today, and I mean, it is everchanging , um, since the
pandemic, we've seen this realchange in what's allowed , um,
areas, provider typesreimbursement , uh, and we are
watching all the time to see ifour , uh, the waivers issued
(16:49):
during the pandemic are goingto be extended. And so I think
it was at the end of last year,they were extended through
March 31st, and then on March20th, they were extended
through the end of Septemberthis year. So , uh,
particularly in telehealth,that is a fantastic example of
where we can all see , uh, howquickly things have changed.
Speaker 5 (17:11):
Yeah, certainly a lot has changed pre pandemic,
you know, from pre pandemic topost pandemic in another, in a
number of areas. Um, you know,one of the areas I referenced a
little bit earlier that haschanged is in the provider
based status or site neutralpayment area. Uh, that budget
act , uh, section 6 0 3 of theBipartisan Budget Act of 2015
(17:34):
was enacted. That started, kind, started the whole site
neutral payment issue. Um, and,but since that time, there have
been a number of additionaldevelopments in that area. For
example , um, in the 21stCentury Cures Act amended that
section 6 0 3 to create a fewexceptions, for example,
(17:55):
hospitals that were midwaythrough building a new location
at the time that that law wasenacted , uh, got an exception
, uh, cancer hospitals and soon. Um, in addition, CMS
limited , um, to the siteneutral to the, to the
physician fee schedule rate ,uh, for hospital outpatient
(18:15):
clinic visits. Um, so there's anumber of things that have
changed in that area since thattime. Um, also, Travis, you
mentioned colocation. So CMScame out with our co-location
guidance , um, and that reallyhas to do with two facilities
that are in the same location,two different separately
(18:35):
enrolled facilities. And so ,um, that, you know, raises a
number of different issues interms of space planning and so
on , um, that, that , thatdefinitely need to be
considered.
Speaker 3 (18:48):
Yeah, no, that's great. Um, so I was, I was
gonna mention fraud and abuse.
Um, generally, and obviouslythere , there's nothing
fundamentally new about fraudand abuse risks for hospitals,
but that doesn't mean theydon't require a lot of
attention.
removed or so from the singlelargest stark based FCA
(19:09):
settlement of all timeinvolving the hospital's , uh,
arrangements with employedphysicians. So stark and
kickback issues are always topof mind. Um, thank you all very
much for, for joining us. Havea good day.
Speaker 2 (19:28):
Thank you for listening. If you enjoyed this
episode, be sure to subscribeto ALA's speaking of health
law, wherever you get yourpodcasts. To learn more about a
HA and the educationalresources available to the
health law community, visitAmerican health law.org.
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