TBA Law Blog

Posted by: Suzanne Craig Robertson on Oct 1, 2013

Journal Issue Date: Oct 2013

Journal Name: October 2013 - Vol. 49, No. 10

“If you need a good securities lawyer, you go to New York. If you want a good health lawyer, you go to Nashville.”

Those words come from nationally known health law lawyer Phil Pomerance, who has spoken on health law in more than 40 states and serves on the Board of Directors of the American Health Lawyers Association (AHLA). The sentiment is echoed by many others who have been a part of the Tennessee Bar Association’s Health Law Forum or the Health Law Section, which has put it together for the past 25 years.

“Tennessee’s health bar is kind of unique,” Pomerance, who has spoken at 10 of the Forums, says. “Because of the concentration of health care businesses there … you get some of the most sophisticated lawyers in the nation. At the same time it’s a congenial bar. It’s a friendly organization with people who know each other, and who have often worked for or with each other on projects. This is a group of people who know and respect each other. That’s not true [everywhere] around the country.

The TBA Health Law Section, celebrating its 25th year, has been that way from its start, beginning when Nashville lawyer George Bishop realized there were a lot of lawyers practicing health care law in the state but no local group or educational offerings for them. It was good timing that in the summer of 1989 Bishop’s “best friend from law school,” Paul Campbell III (who became TBA president in 1992), was a member of the TBA Board of Governors. Bishop says this helped get him on the board’s agenda that June with his idea to propose that the association form a Health Law Section.

The original executive committee of the section included David Lewis, Howard Levine, John Voigt, Will Martin and Max Shelton, with Bishop — an attorney at Waller since 1976 — leading the way. Memories conflict over just who did what for the early seminars, but many others were also involved in their success, including Reggie Hill, Don Fish and Dick Knight.

But no one questions who was the catalyst. “George was the vision behind this,” Lewis says of the section and subsequent seminars. Lewis was the section’s second chair after Bishop served two years. Lewis, who then served as chair again in 2010, is vice president and associate general counsel with LifePoint Hospitals in Nashville. Levine, Voigt and Shelton each also served as Section chair in subsequent years.

Starting Small, Thinking Big

“The health care lawyer community was smaller then,” Voigt recalls. “We all knew each other. It was so small we did a lot of transactions with each other — on the same side and different sides. We were sharing evolving areas of the law, not only with each other but with other lawyers who didn’t do it all the time.”

As the industry began to expand and the number of lawyers in the area grew, Voigt says, it became impossible for everyone to keep track of all aspects of the law.

This was the perfect time, they realized, to establish the Health Law Forum.

“There were a number of national organizations that put on programming,” Lewis says. “A lot of our Tennessee practitioners couldn’t afford to go to those programs every year. We felt like we had a lot of expertise in the TBA that could put on those programs. The bar association was very supportive in allowing us to have a number of out-of-state attorneys with experts.”

That first seminar, held at the Maxwell House Hotel in Nashville in September 1989, covered state regulatory matters, a joint venture case study, Medicare, physician relations issues and quality of care issues.

The first annual meeting of the section took place in conjunction with the TBA convention in North Carolina the following June, where the section’s bylaws were adopted and the name was changed from “Health Care Law” to “Health Law.” In addition to Bishop and Lewis, other members of the Section’s Executive Committee for the second year were Levine, Shelton, Frank Grace (who later served as chair) and Theresa Sigmon, who was elected secretary. Jeff Ockerman and Howard Wall were also involved in early section activities.

The Forum started small, with dinners and receptions at Voigt’s house in Nashville. After that first year at the Maxwell House, it moved to the auditorium at the Hospital Corporation of America (HCA) headquarters.

“That was very gratifying,” says Voigt, a partner with Sherrard & Roe in Nashville. “The section has allowed us to discuss new developments in regulations, and to expose attendees to new areas to make them aware of emerging areas on their own.”

Presenters at the second seminar included Sandy Teplitsky with Ober Kaler in Baltimore; Terry Tottenham with Fulbright & Jaworski in Houston; and Virginia Hackney of Hunton & Williams in Richmond. Tennessee lawyers who spoke at the seminar included Claudia Dickerson, Almeta Cooper, Lee Barfield, Frank Grace, C. J. Gideon and Gaye Karlson.

Lewis is clearly proud of the programming and its presenters during the past 25 years. “Tennessee, in my opinion has one of the best health care bars in the country,” he says. “It’s abundantly clear that the talent level, knowledge and expertise among Tennessee lawyers really match what anyone has. The Health Law Forum has made a difference in developing that expertise.”

Phil Pomerance backs this up, along with Teplitzky, a nationally renowned health care lawyer who has been at every Health Law Forum except the first one. He has participated in similar meetings in many other states, but says, “The TBA program is consistently more current and substantive — and it almost always has the largest attendance.” Teplitzky is a frequent writer and lecturer on health care fraud and abuse issues and is a former president of the AHLA. Pomerance is chief operating officer and general counsel of Best Practices Inpatient Care Ltd. in Illinois and speaks to prestigious groups that include the American Bar Association and the AHLA.

Teplitzky also talks about the “sophistication” of the health law bar in Tennessee. For example, he says the questions raised and discussions held by participants show a detailed knowledge and understanding of the issues.

“This enables the planners to address not only the surface of new developments, but also to delve into discussions of any developing trends in the health care industry,” he says, adding that the Tennessee program is “unsurpassed around the country.”

Early on, the section sought out Teplitzky’s expertise on the Stark law (fraud and abuse), Memphis lawyer Walt Schuler says. “The statutes are essentially unchanged but they have given some body to it in terms of interpretations, case law and additional regulations,” he says. “It’s on our program every year; that’s always an issue.” Schuler is associate general counsel of the University of Tennessee Health Science Center and immediate past chair of the section. Jackson lawyer Angela Youngberg is the current chair.

Location, Location, Location

Around 1989 when the idea for the section was getting off the ground, health law was just beginning to evolve into its own area of the law, and there was a lot of it in Tennessee, especially in Nashville, Chattanooga and Memphis.

“There was a heavy concentration of us in Nashville,” Voigt says. Lewis points out that the proliferation of health care lawyers in the Nashville area, though, had a lot to do with where HCA is located. As people who had worked at Nashville-based HCA left there and formed new companies or became a part of other health care management companies, he says, they stayed nearby.

And then when the Health Insurance Portability and Accountability Act (HIPAA) of 1996 was enacted, things really began to transform.

“HIPAA increased the frequency with which you face health law issues when you’re doing transactions,” Schuler says. Before then, the private practice of health law was limited to a few law firms, he says, and most of them didn’t advertise if they had lawyers who practiced in the areas of health law.

“Then rapidly after ’96, within a few years, you saw many more firms develop a health law practice. That’s continued to grow, where most law firms have some lawyers who say they practice in this area.”

Years later, in 2010, the Patient Protection and Affordable Care Act became the same kind of catalyst for growth, with more regulations, changes — and uncertainty.

Filling a Need

With more and more lawyers coming into the field to handle these new, more complicated matters, another need was realized.

“The section saw the need for a shortened half-day version for new health lawyers,” Schuler says of the Health Law Primer, which was added to the lineup about 13 years ago. The addition of the Primer was in direct response to the growth in the practice area, he says. With about 25 attendees the first year, the program has grown like its big brother, the Forum: last year about 60 came to the half-day intro and many also attend the full program.

The Health Law Forum has also grown. Bishop notes that 103 lawyers attended this first seminar in 1989. This year nearly 300 attendees are expected.

The two programs fit together well. Lewis says they will help health lawyer “figure out what you need to be doing and what you need to avoid doing.”

“This group’s energy has always amazed me,” TBA Director of CLE Mindy Thomas-Fulks says. “It feels like a reunion every year for us and our attendees. The list of speakers and topics are impressive and it takes a lot of work from the Section’s Executive Council and staff to meet the expectations of a fabulous program year after year. It is a privilege to be asked to speak and an educational experience for our attendees that no other program offers.”

Lewis agrees. “As we have a more sophisticated audience, that’s meant an increase in quality of presenters,” he says. “We try to stay on the cutting edge of new developments. The content is always current, and we have less reliance on out-of-state speakers as the legal talent in Tennessee has developed.”

‘Tremendous Pressure’

“I don’t even know where to start,” Voigt says when asked what the changes in his health law practice have been in the last 25 years. “The federal government has emerged as the major driving force in health care delivery. The practice of medicine has become so much more of a business in terms of regulations, than actually practicing medicine.” Government is largely controlling and dictating the way health care is financed and paid for these days, he adds. “The amount of regulation is significantly more than we had 25 years ago, because of the federal and state’s involvement.”

This is an opinion shared by others.

“This industry is about the most heavily regulated industry in the U.S.,” Lewis says, pointing to complicated regulations, reimbursements, fraud and abuse, and licensing.

“There are more and more federal regulations to keep track of for folks operating in any facet of the industry,” Bishop says. “There is tremendous pressure to keep up with new and changing regulations in the health care industry.

“The general consensus is that the health care system and how we pay for health care in this country is not working, resulting in many efforts to reform the system, which was done with Obamacare. Everyone is trying to figure out how it’s going to get implemented,” Bishop says, “The president has delayed certain aspects of the law and Congress may delay the implementation of other aspects, which makes it a very uncertain environment when one doesn’t know how or when it will all play out.”

The changes also have caused a significant increase in the level of mergers and acquisitions, Bishop says of the area where he works most. “The combination of the uncertainty, with the knowledge that however this works out there will be less money coming from federal government and private insurers, has put pressure on hospitals to make strategic moves to affiliate, joint venture or sell. That is continuing and I think will go on over the next few years at least,” he says.

“The number of issues that have to be dealt with in any transaction has dramatically increased,” Bishop says. “In my practice if you were buying or selling a hospital in the mid-’80s, you might have a purchase agreement that was 25 or 30 pages long. Today it’s 75 pages because of all the regulatory issues that have to be addressed.”

A visible change in the industry over the last quarter century, directly related to the amount of regulation, is that there are fewer smaller groups, Voigt says. “[Doctors today] are significantly less entrepreneurs than their fathers or grandfathers. Fewer want to set up their own practice as opposed to working for an established group or hospital.”

Bishop adds that areas to watch are privacy, an increased interest of the government in pursuing false claims under the Medicare program, and antitrust issues that arise from consolidation.

How the Section Helps Practitioners

With all the change, practitioners are hard pressed to come up with facets of the industry that have not changed in the last 25 years. But there are some, including issues relating to licensure of health care professionals and providers at the state level, as well as the quality of the services provided.

One of the few aspects of this practice area to be counted on — besides that there will be more change and uncertainty — is that the TBA Health Law Section will be available to guide lawyers through it.

Through networking and resulting friendships fostered by being a section member, health lawyers in Tennessee know they have support. “You get to know the other attorneys who practice health care law, and you deal with them in work,” Schuler says. “You want to bounce questions or ideas off of [colleagues who practice in this area], because they are the only ones who know about it.”

The success of the Section and the Forum is a model for other groups, and Schuler gives credit to early leadership. “You had a committed group of people — primarily in the Nashville area — who were able to enlist others,” he says.

Records from 25 years ago are not clear, but since 2000 membership in the section has more than doubled, from 245 members to about 580 today. TBA Programs Administrator Lynn Pointer has worked with Health Law at least that long and keeps a close eye on the numbers.

“I would like to think the Forum is a big reason why section membership has grown so much in the past decade,” she says.

“I feel grateful to have been involved in getting it started,” Bishop says. “One of the more important things I’ve done in my law practice is to help organize the section. It’s wonderful and pleasing to see how it’s grown and how younger practitioners continue to take it to greater heights. It is a significant and valuable part of the bar association and has been a greater resource to health law practictioners than I ever dreamed.”

TBA Health Law Section Leadership

Bar Year Section Chair
1990-1991 George W. Bishop III
1991-1992 David T. Lewis
1992-1993 Frank Grace Jr.
1993-1994 Max Shelton
1994-1995 Howard Levine
1995-1996 Patricia Meador
1996-1997 Richard Knight
1997-1998 Dale Amburn
1998-1999 Jay Hardcastle
1999-2000 Debbie W. Larios
2000-2001 Charles Key
2001-2002 Cindy Y. Reisz
2002-2003 Kevin C. Campbell
2003-2004 Claire F. Miley
2004-2005 Mary P. Parsons
2005-2006 John R. Voigt
2006-2007 Frank Grace Jr.
2007-2008 Robert Q. Wilson
2008-2009 Carol Anne Mutter
2009-2010 William E. Young
2010-2011 David T. Lewis
2011-2012 Kim H. Looney
2012-2013 Walt Schuler
2013-2014 Angela Youngberg

SUZANNE CRAIG ROBERTSON is editor of the Tennessee Bar Journal. TBA staff members Kaisha Bond, Lynn Pointer and Mindy Thomas-Fulks contributed to this story.