What to Expect When You Work With a Healthcare Attorney
If you’ve never worked with a healthcare lawyer, you may have preconceived notions about what they do and how they communicate. We give you a preview of what to expect.
Many healthcare practitioners have diligently worked through years of schooling and been shuttled into successive professional roles with increased responsibility. For others, their independent practice may have started small and snowballed into a more successful and bustling office than they’d ever imagined. Until now, you’ve hardly come up for air—let alone considered hiring an attorney! So what should you expect from a healthcare attorney, and what will our relationship look like?
We want to help you achieve your aims—but it must be within the constraints of the law.
Our goal is to get to “yes.” We try to help our clients do what they want to do in a way that complies with the complex web of laws that overlay the healthcare industry. Often, the way to accomplish something is to establish a relationship, contract, or arrangement that falls within an exception or safe harbor. Most of our answers to your questions will begin with the phrase “it depends,” and most of our guidance seeks to navigate inherently grey areas of the law.
As we work to help our clients achieve their goals, we also keep two salient points at the forefront of our minds: (1) We are prohibited from helping a client violate the law, and (2) We understand that our clients come to us because they don’t want to break the law! So, while each client’s risk tolerance may vary, the bottom line remains the same: if something is clearly or more-likely-than-not to be illegal, we’ll tell you. In these situations, we try to envision a new way of approaching your goal.
For example, an unlicensed IBS patient advocate in Illinois wants to open a medical infusion clinic that treats and manages patients with IBS. They hope to hire a physician for patient management and a nursing staff for administering infusions. When they come to us, they explain that they want to own the clinic themselves, and they only want specific treatments administered at the clinic; they believe that some FDA-approved treatment methods do more harm than good.
Our guidance will include explaining Illinois’ corporate practice of medicine doctrine. The doctrine prohibits their ownership of a medical clinic—specifically to ensure they don’t interfere with medical judgment (which is their stated goal). Instead, we may suggest that the client establish a management company that provides the management services necessary for an infusion clinic to operate—advertising, billing, real estate, HR, and administrative services. They could then offer those services to a physician, who could pay them to manage the physician’s IBS-focused infusion clinic. This example is simplistic and omits many important details and possible exceptions. Still, the point is: we’re always trying to help our clients accomplish their end goal in compliance with the law.
You may think you’re hiring us to provide advice. In reality, you’re also hiring us to do the meticulous legwork necessary to develop that advice.
If you ask us a legal question, we must perform research and write up our guidance before giving you an answer. While we may have an inkling or assumption about how you should act, the ever-changing nature of the healthcare laws necessitates that we work through the analysis and confirm the validity of our advice. Remember the requirement in school that you “show your work” on your math homework? That’s what we do—every time.
Occasionally, a potential client will tell us that they’d like to work together if we can assure them at the outset that they’re legally permitted to do what they want to do. Unfortunately, it’s an assurance that’s impossible for us to make.
Our process is always to clarify the client’s question, do our research, write it up, and discuss it with our client. Taking shortcuts or giving advice based on hunches or assumptions would be incredibly risky for us and our clients. Moreover, it would also fail to give our clients the solid foundation upon which they’re planning to establish a business, begin a job, or make an otherwise important life decision. We take this responsibility seriously.
If you think about it, your healthcare practice is not entirely different. If a patient whom you had never previously treated called your office reporting a set of symptoms, how would you proceed? Most likely, you wouldn’t immediately offer a formal diagnosis and give them a prescription, even if you already had a strong idea about the patient’s condition. You would probably schedule an examination, take a history, and review lab results—all carefully documented. If instead, your patient insisted that you diagnose them and promise their desired result before they would agree to a billed visit, would you do it?
We give advice in writing.
As a clinician, you offer much of your guidance verbally and then document it in your patient’s chart. We do the opposite. We typically provide our guidance in writing. Then, once you’ve had an opportunity to review and digest it, we schedule a call to discuss it.
Why do we do this?
First, we understand the gravity of what’s at stake—your license, practice, or professional reputation—and want to ensure we have the facts accurately recorded. We will begin our emails or letters by recapping the relevant facts upon which our advice is based. This allows you to correct any misconceptions or misunderstandings and for us to amend our guidance accordingly.
Second, these are complex issues, often with very detailed, nuanced recommendations. It’s crucial that you understand and retain the full breadth and depth of our guidance, not just the big-picture takeaway. Thus, we enable our clients to read and reread our guidance. For multi-member practices, it can be useful or imperative that multiple people can access the guidance.
For example, let’s say that a physician practice is considering purchasing a laboratory. The practice hires us to advise them on possible fraud, waste, and abuse implications. Our guidance will likely evaluate the federal Stark Law, Anti-Kickback Statute, Civil Monetary Penalty Law, and the False Claims Act—in addition to the state versions of these federal laws. This guidance is most effectively given in writing so those physicians can review it, discuss it, and then let us know how we can further clarify the implications of these laws on their planning.
Sometimes, as a cost-cutting measure, a potential client asks to retain us on an as-needed basis, whereby they simply call when they have a question. Their hope is that by asking us to not put things in writing, they’ll save on legal fees. When this happens, we emphasize that the written guidance is necessary to answer their question, as the answer will inevitably begin with “It depends…”
In a similar vein, when we provide you with written guidance, we always recap the facts as we understand them. Some clients tell us this isn’t necessary and that they just glaze over this section anyway. Don’t! If we’ve misunderstood even a tiny detail relating to your practice or work, it can impact our advice. Read our retelling of these details carefully, and alert us to any discrepancies.
Bottom line: it’s all about the details.
In summary, the practice of law—especially healthcare or business law— is not quite what many clients envision. Few answers are as straightforward as you might expect. Our role is to find the legal avenues that allow you to achieve your goals within your unique situation, avoiding the many landmines embedded in both state and federal laws. In almost every case, it demands research and careful, detailed written explanation.
To learn more about the areas that healthcare attorneys cover, visit the “what we do” section of our website. Or, if you have a particular matter and want to discuss how we can help you, schedule a consultation with one of our attorneys.
This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader and should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction