Lawyers may not be as predictable as all the jokes about them might suggest.
Youd expect these pinstriped aggressors to growl and run in circles like a junkyard dog about to get a juicy bone when the CMS unloads a new ream of Stark law rules and exceptions (and exceptions to exceptions). Or when the antitrust enforcers in the Federal Trade Commission and Justice Department signal theyre on the way, or when the Internal Revenue Service hatches a complex set of new reporting requirements for not-for-profit organizations. Or when presidential candidates promise theyre going to overhaul the national U.S. healthcare system and all its rules and regulations to a degree not seen in a generation.
After all, as was noted at the annual meeting of the American Health Lawyers Association this week in San Francisco, all of the above is great for business, and lawyers like their fees.
Change is always good for lawyers, quipped James Roosevelt Jr., president and chief executive officer of Tufts Health Plan and a former president of the AHLA, who presented and argued the merits of the healthcare proposals of presumed Democratic presidential nominee Sen. Barack Obama.
But here is the interesting thing. Lawyers show what appears to be genuine frustration with laws and regulations they think are bad for providers and consumers, even if the resulting confusion means, as more than one lawyer reliably quips during such gatherings, theyre able to put their kids through college.
One prominent healthcare lawyer suggested recently I write about the ever-growing pile of rules and exceptions to the restrictions on physician self-referral for Medicare services, known for their congressional progenitor, Rep. Pete Stark (D-Calif.). The story pitch, as I understood it, was that the law had become unworkable. Surely a healthcare lawyer, especially one who specializes in that area, would know that the pile of rules is something to be mined endlessly, hour by billable hour.
So I seek out this lawyer at the meeting and ask him, basically, why he is arguing that case when it is something that every provider and lawyer worth his or her salt knows isnt news and there is very little likely to change in the story. Were at an evening reception at San Francisco City Hall, and when I catch him hes retrieving two glasses of white wine, one for himself and one for a woman who doesnt get it for a very long time, because Stark is that kind of rabbit hole.
He answers with some of the more vexing challenges of satisfying all of the rules even when structuring fairly run-of-the-mill arrangements among hospitals and physicians, some of which Modern Healthcare has covered in dribs and drabs in print and online, others of which would be considered arcane even in a room (actually several massive, ornate rooms) of healthcare lawyers. Only about 20 people in the country, he suggests, are able to comprehend the rules, and even they often disagree when they get deep into the weeds.
The folks at the CMS, he says, are good people and good lawyers themselves, and theyre trying to accomplish whats asked of them by the law. So what now? Whats new? Is there any organized effort afoot, I asked, to kill or change the law? That would be a good story. The answer is no, because how do you begin to convince a politician to wage a fight against an antifraud law? But he summons a colleague to put the same question to him, who also says no but suggests there might be an opening if there is a first lady Michelle Obama, who has seen this stuff from the inside as vice president for community and external affairs at the University of Chicago Hospitals.
My initial conversation partner responds enthusiastically to that notion and then throws down a challenge. Find a government lawyer responsible for carrying out Stark and convince him or her to tell me the whole thing is hopelessly screwed up, only he used a saltier word. Theres my story. He even names one, apparently not noticing at first that this person is standing about 10 feet away at the seafood bar. The band is playing Bob Dylans Tangled up in Blue, and Im about to get tangled up in something.
His friend calls to the government lawyer and waves him over and we exchange greetings. Ive met him before and he knows Im a reporter. Tell him, the Stark antagonist says, that Stark is (expletive deleted)!
Nope. Instead, the official says, Put your hands on the car, and makes like hes going to make an arrest, and maybe he would have if it werent for the plate of mussels he was holding.
But anyone out there in the CMS or HHS inspector generals office whod like to oblige the lawyers request for honesty about Stark, please contact me.
Chicago-based reporter Gregory Blesch covers legal affairs. And to contact him call 312-397-7585 or e-mail [email protected]