Health law practice is undergoing radical restructuring in the wake of major changes in the health care system and the reorganization of the legal profession. The health care system is being transformed as the Affordable Care Act (ACA) and other factors promote the integration of clinics and hospitals, put greater emphasis on patient-centeredness, create incentives for value-based care, mandate public reporting on costs and outcomes, and provide subsidized coverage. These changes in the health care system come at a time when the legal profession is also undergoing significant transformations. In the corporate law sector, we see a major shift in the role of corporate general counsel and corresponding changes in the practice of outside corporate firms: General Counsel positions (GCs) are becoming more powerful and corporate firms are shifting from overall representation of companies to specialist niches. At the same time there is increased concern about access to justice for under-represented individuals while new programs to address unmet legal needs are emerging. Health care lawyers are caught up in this dual transformation as the nature and the setting for their practices change and they are called on to play new roles and develop new skills.
Our study of Transformations In Health Law Practice concentrates on two types of practice: the corporate law sector that serves business and the “access to justice” sector that assists individuals. On the corporate side, the health care industry once relied on outside corporate law firms to handle most of an organization’s needs: outside firms offered most of the skills needed to deal with a health organization’s legal concerns. These firms offered overall knowledge of the health care regulatory landscape. They were able to bundle the various specialties needed to deal with issues like tax, anti-trust, hospital regulation, FDA, and corporate matters. In those days, the GCs dealt with routine matters but deferred to the outside firms on complex questions or strategic matters. Today, this relationship is changing throughout the corporate law sector in the US and elsewhere. GCs are becoming more important within corporations and similar business organizations. Among the causes of this shift are the growing importance of legal issues in strategic business decisions and corporate concern about the rising cost of legal services. The changing role of the GCs requires that outside firms shift their business model. One sees these trends in the health law field in a very dramatic way. The trends are driven by a number of factors, including the move to large integrated organizations, more emphasis on costs and transparency, increased regulatory burdens, and the need to deal with more active patient involvement. In this context, GCs have had to take on greater responsibility. They serve as part of the internal business and financial team assisting in business development of the larger hospitals; they work with the in-house quality and safety professionals crucial to meeting the pubic reporting criteria and metrics; they handle patient complaints; and they manage the procurement of specialized skills from outside firms on a case by case basis. As a result, outside firms are changing their roles. They are developing highly specialized skills that the in-house offices may need from time to time but cannot staff for on a regular basis. They offer independent and strategic guidance and back-up to the GCs on complex regulatory issues. And they continue to provide general services to smaller health case organizations that cannot afford large GC operations.
The second sector is lawyers working on behalf of poor and disadvantaged persons. Doctors and other medical providers are recognizing that legal tools can assist their patients. For example, lawyers can help asthma patients by taking legal actions to reduce mold and rodent infestation in homes, provide guardianships for aging and disabled people, and access public benefits such as food stamps for families in need. Medical professionals, working with lawyers, are developing programs that link doctors, lawyers and patients. These medical–legal partnerships (MLPs) are increasing, using legal service lawyers, pro bono programs and law school clinics. ACA incentives to keep patients healthy encourage health care institutions to support MLPs. As the MLP movement grows, it is leading to an expansion of the use of legal tools as part of health care. Doctors see how lawyers can help their patients and lawyers see the field as an area in which law can make a difference and impact on health.
Health lawyers are developing new skills and learning to play new roles in this changing world. Of course, they have to master a number of new legal rules and regulations. But they are going beyond this traditional form of knowledge. As they find themselves in teams with MDs, MBAs, and other professions, they are learning how to collaborate across professional lines; they are gaining a better understanding of the business side and how legal and business issues come together in strategic decision-making; and those that work with patients are getting accustomed to less hierarchical relations.
While practicing lawyers are coping with these new demands, the law schools lag behind. Change has been very rapid and law schools have generally not responded to all the transformations in law and practice. As a result, law students lack information about the health law field and opportunities to develop the new skills it demands. While health law teachers and programs are trying to accommodate these needs, more must be done by individual teachers, law school programs, and professional associations. Schools need to expand the range of opportunities, offering more skill-based options, clinics, externships, and information about the changing health care law job market.