The AHLA’s Annual Meeting held June 27-29 in Chicago reunited healthcare attorneys across the country. The diverse group of attendees were eager not only to reconnect in-person, but also to process the changes that the now-easing pandemic has brought to all corners of the healthcare industry. The conference presenters grappled in real-time with the transitory nature of the healthcare landscape today, including the significant role that technology has played in driving shifts in care delivery. The panel discussions assessed which changes to healthcare delivery and reimbursement would continue after the pandemic, and in what format.
Here, we provide an overview of what our healthcare law experts learned at the conference across relevant topic areas:
- Technology. Healthcare technology was the prevailing topic, with presenters and attendees discussing how the industry will be transformed by virtual care modalities and new capabilities of artificial intelligence. As always, with technology comes data, and experts weighed in on issues like data use, licensing, aggregation, new rules on information blocking, ransomware attacks/cyber insurance, and preparing for disasters, whether natural or human-made.
- Regulatory and Enforcement Environment. Many programs focused on the government’s response to the pandemic, including how the government may change its policies once the public health emergency (“PHE”) ends. Regulatory and litigation experts discussed what future enforcement strategies government may pursue in order to identify and address instances of fraud that occurred during the PHE, particularly with regard to telehealth.
- Antitrust and Labor Relations. With the backdrop of inflation, rising prices, and changes in the labor market generally, attendees heard from antitrust experts about a new emphasis on criminal enforcement for antitrust violations in the labor market. Lawyers learned about the proposed federal Workforce Mobility Act of 2021 and other new or revived state antitrust laws that are likely to impact the use and scope of restrictive covenants in the healthcare industry (e.g., non-compete/non-solicit clauses) on a go-forward basis. Finally, the antitrust experts explained ways in which healthcare entity leaders can dialogue with labor unions and workers to improve working conditions for healthcare providers and other industry participants, even in the context of consolidation transactions.
- Health Equity. Along with technical legal issues posed by technology in healthcare, the AHLA meeting presenters and attendees grappled with social issues impacting the healthcare industry and their effects on health equity. Dr. Gurpreet Dhaliwal, a clinician-educator and Professor of Medicine at the University of California San Francisco, focused on health equity in his keynote address: Digital Health Technology – Raising Hopes or Raising Barriers? For example, Dr. Dhaliwal challenged attendees to consider why Americans’ lifespans are more closely correlated with where they live than other factors, such as race/ethnicity, genetics, or quality of medical care. He encouraged listeners to consider why geography is such a major driving force for patients’ social determinants of health, and also to think about options available for attendees to promote improvements in accessibility and equity in healthcare in their sphere of influence. Presenters in other areas touched on the need to identify systemic inequities and develop creative solutions to improve health equity while also delivering effective, high quality care, such as virtual-first practice, shared medical appointments, virtual emergency care, remote patient monitoring, and hospital-at-home. In addition to explaining current potential solutions, presenters also stressed the need to analyze outcomes data to ensure that these kinds of new approaches are driving desired results from a value-based care and cost reduction standpoint.
- Mental/Behavioral Health. Behavioral health and access to mental healthcare resources was another major topic, with policy experts presenting to lawyers about 988, the soon-to-be-launched new National Suicide Prevention Lifeline. In the context of 988 and its planned July 2022 launch date, attendees learned about the challenges for funding, staffing and operating behavioral healthcare centers. The difficulties in establishing this framework are heightened at a time when public awareness of mental health and the need for such care are increasing, particularly in response to the pandemic. However, as the presenters stressed, the challenges of transforming access to and resources for mental healthcare offer enormous opportunity for people involved in healthcare delivery. One poignant takeaway was that efforts spent expanding this access would reduce burdens on already-fatigued first responders and healthcare providers by integrating new community-based support efforts with existing resources.
- Counseling Clients in Changing Times. Considering technology and health equity issues and potential clinical and policy solutions, attendees heard about potential ways to protect clients seeking to engage in novel care delivery arrangements in addition to complying with existing fraud and abuse rules. Presenters discussed how regulatory agencies like CMS remain focus on developing and expanding value-based care, including through new safe harbors (e.g., patient engagement and support, value-based care, care coordination, financial risk, among others). However, even with an appetite among regulators for new approaches, careful adherence to regulatory guidelines remains paramount for in-house and outside counsel. Specifically, lawyers helping clients engage in these new arrangements need to consider any applicable PHE waivers, but anticipate adjustments to the arrangement where waivers will cease to apply once the PHE ends and potential termination/force majeure implications of interim arrangements. Lawyers need to be mindful of scope-of-practice and supervision issues for providers, as well as applicable consent rules, and presenters stressed that lawyers must think critically in evaluating potential regulatory and enforcement risks. For example, lawyers need to understand the applicability of services, vet issues related to potential overutilization, and ensure that clients are complying with contractual rules for beneficiary cost-sharing obligations.
The AHLA conference highlighted so many challenges for the healthcare system at large and new risks that lawyers need to be prepared for, particularly as the PHE ends and some elements of COVID-related pandemic healthcare carry forward into the future. In reconnecting healthcare attorneys, however, the conference reminded us that we are all in this together, and that there is substantial strength in a group of smart, committed lawyers focused on helping their healthcare industry clients seek to improve their operations. And – in midst of significant change – the conference highlighted that healthcare lawyers have deep purpose in their work, supporting collective efforts to make life better for people seeking access to healthcare and public resources in challenging times.