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Posted by: Lynn Pointer on Sep 19, 2012

“Health Law” Takes on New Meaning in 2012

By Walt Schuler[1]

First, let me say thank you to all of our Health Care Law Section members, who either joined the Section or renewed their memberships over the past few months.  It is you who make our Section the success that it is!  It has been an honor and a privilege for me to serve as your Chair this year.  Thanks also to the TBA Staff members who help us all so much.  A personal thanks goes out to Lynn Pointer, Kaisha Bond, and Mindy Fulks for their invaluable assistance over the past year.  Finally, thank you to all of our sponsors, who are providing all of the wonderful food and refreshments for this year’s Health Law Primer and Health Law Forum, to all of our distinguished speakers at these programs, and to all of the Section’s Executive Council members, who worked so hard this year in putting these outstanding programs together.

As expected, 2012 has been quite a year in the health law arena!  There is no better way to keep up with all the changes and developments than to be active in our Section and to attend this year’s 12th Annual Health Law Primer and 24th Annual Health Law Forum, being held October 3-5, 2012 at the Embassy Suites Hotel—Cool Springs in Franklin, TN.  Continuing legal education in the health law practice area truly must be ongoing and continuing in order for us to be prepared to deal with all the issues that will be presented to us as health lawyers.  I encourage everyone to register for these exciting programs today, as we are on track for record attendance again this year!

Nearly two decades ago, when I was in law school pursuing a certificate in health law along with my law degree, the most frequent question people asked me regarding this pursuit was: “What is health law?”  Even as a practicing lawyer, people continued to ask me this question.  When responding to this question over the years, I’ve often found myself expending considerable effort trying to provide a complete yet succinct description of our practice area.  While in private practice, I would gladly expend that effort when it was a potential client who was asking, and I would hopefully make the description broad enough to encompass their particular legal needs, of course.  When other people ask me what “health law” is, I usually don’t expend nearly that same amount of effort explaining it to them, and on the rare occasions that I have, when I was finished, they probably wished that I hadn’t.  Perhaps, by today’s standards, the more socially acceptable thing for me to have done would have been to suggest that they just “google it” or look it up on Wikipedia, which at the time of this writing, actually contains a fairly good, basic description of “health law” as an area of legal practice, based on the definition adopted by the Texas Board of Legal Specialization.[2]

Thanks to events occurring over the past year, the results of an internet search of the terms “health law” or “health care law” today aren’t likely to be dominated by hits focused on these terms as an area of legal practice.  The U.S. Supreme Court’s June 28, 2012 decision on the constitutionality of various provisions of the Patient Protection and Affordable Care Act and all of the anticipation and media coverage leading up to it have led to the Affordable Care Act being widely known as that “health law” that is about to impact all of us in one way or another within the next couple of years and for years to come.  If asked a few years ago what the terms “health law” or “health care law” refer to, most Americans likely would have said that they did not know, or at least there probably would have been no universal substantive response.  Asked that same question today, most Americans will likely respond immediately that the terms refer to “Obamacare,” and many may even say that these terms refer to “the Affordable Care Act,” which is the shortened version of the law’s official name. 

All of the media coverage surrounding the Affordable Care Act has helped to shed light on what health care lawyers do.  Across the country, news publications and television programs featured nationally-recognized health lawyers’ opinions on various aspects of the Affordable Care Act.  Locally, we saw many of our fellow health care lawyers being interviewed and quoted in newspapers, periodicals, television programs, and newscasts—all with a focus on this area of legal practice as it pertains to the Affordable Care Act.  Health law issues will continue to be the subject of national and local media coverage, especially during the upcoming presidential debates, and for the foreseeable future, regardless of the outcome of the November 2012 elections. 

Of course, health law as a practice area encompasses much more than the Affordable Care Act.   Americans have also become more educated in some of these other areas as well, one good example being the privacy protections afforded to patients under the Health Insurance Portability and Accountability Act of 1996 (HIPAA).  So, whenever I describe the practice of health law to others, in addition to noting some of the basic issues that come up like business operations, labor and employment, contracting, billing, and licensure, I generally like mention some of the most significant federal statutes, which generate much of the work that health lawyers are involved in, and which usually require the particular expertise of a health lawyer.  Sometimes, if I think they may have already heard of it, I will just mention the popular name or an acronym of the statute, such as HIPAA, Medicare, and Medicaid without going into much more detail.  When it comes to EMTALA, the Stark Self-Referral Law, the Anti-kickback Law, and the False Claims Act, I have found that a brief description of these statutes is usually necessary.  Everything seems to go just fine until I get to the Stark Law and the Anti-kickback Law, which is usually when the strange looks start to appear.  So I still may have some work to do there.

The good news is that the American people are more engaged now than perhaps at any other time in history as to what health care laws mean for them and their families.  Whenever our lawmakers, clients, and the general public have important questions about health law issues, they will look to those of us who practice in this area for answers.  To make sure that we will be prepared to provide those answers, we must continue to be diligent in educating ourselves and others on the latest developments in this ever-changing and often complex area of the law.  In the next couple of years, it might just be that when we tell people we practice health law, instead of asking us what health law is, they will actually know what we mean.

[1]   Walt Schuler is Associate General Counsel for The University of Tennessee Health Science Center, and currently serves as Chair of the TBA Health Care Law Section.

[2]   Certifications of Specialization are available to Tennessee lawyers in all areas of practice relating to or included in the areas of Civil Trial, Criminal Trial, Business Bankruptcy, Consumer Bankruptcy, Creditor’s Rights, Medical Malpractice, Legal Malpractice, Accounting Malpractice, Elder Law, and Estate Planning and Family Law.  Certifications of specialization in “health law” or “health care law” are not currently available in Tennessee, and use of those terms in this publication to refer to an area of legal practice does not constitute or imply a representation of certification of specialization.