Doctors and Lawyers and Government! Oh, My!

Nicholas Genes, MD, PhD


February 12, 2008

David Harlow has been working with doctors and healthcare agencies for his entire a lawyer. He shares his views and experiences online at his Web site, HealthBlawg. I recently corresponded with Mr. Harlow about his work, the problems he sees in healthcare, and what he accomplishes online.

Dr. Genes: As a lawyer who works with healthcare providers, how would you say most doctors view your fellow lawyers? How are you perceived by the medical community?

David Harlow: It's a truism that lawyers are often seen as obstacles to rational development of clinical and business arrangements in the healthcare field; this also finds expression in jokes like:

- What do you call 1000 lawyers on the bottom of the ocean?
- A good start.

I certainly get that vibe sometimes. However, as I always tell clients and prospective clients, I practice preventive law. My clients appreciate the fact that I'm not the kind of lawyer who routinely says, "No, you can't do that." Often, a client will describe a proposed business deal to me, and I will suggest restructuring it in order to avoid regulatory land mines -- be they Stark, anti-kickback, state licensing issues, etc -- while achieving approximately the same business results. I like to be there at the inception of new relationships between physicians and hospitals; physicians and diagnostic imaging or radiation therapy providers; nonacute facilities and their vendors; etc, so that I may assist in designing business relationships that can withstand both the tests of time and the scrutiny of government agencies, rather than arriving on the scene later and defending a client facing allegations of wrongdoing.

David Harlow at HealthBlawg hosts Grand Rounds
February 12, 2008

Dr. Genes: It seems like you've been in a position to see all sorts of abuses of the healthcare and legal systems -- doctors perhaps getting kickbacks for imaging referrals, or regulatory agencies squeezing more work for less reimbursement out of doctors. How widespread are the abuses, and who's getting hurt the most?

David Harlow: I could tell you how many bazillion dollars the federal government has recouped through Medicare fraud and abuse enforcement, but I'd suggest stepping back from the question about kickbacks and asking instead, "Why are physicians pursuing ancillary income as assiduously as they are?" The short answer is that physician income has been made subject to strict price controls. For example, I've blogged about the "sustainable growth rate," which is the federal zero-sum game for physician payment that gets bypassed by Congress annually.

So, squeezing out more work for less reimbursement increases the pressure to develop ancillary income. There are legitimate ways of doing that and there are illegitimate ways of doing that. There are always those who will work to game the system, whether they're rogue physicians or rogue stock traders or rogue electric wheelchair dealers. (I recall a newspaper article from a few months ago suggesting that organized crime in South Florida was moving from drug dealing to Medicare fraud, because it pays better and people don't shoot at you.) The medical-industrial complex in this country is a system that is gamed pretty regularly.

However, the vast majority of healthcare providers have their hearts in the right place. Even Pete Stark, architect of the Stark law, has said that the Stark self-referral ban, with its byzantine exceptions, has gone too far and that he would undo it all if he could.

Primary care physicians (PCPs) have gotten the short end of the stick, thanks to fee-setting mechanisms that favor proceduralists and self-referral rules that favor specialists. As a result, fewer medical students are going into primary care, and we are facing a severe shortage. So we are all getting hurt by this confluence of factors. As an example, all the newly insured folks in Massachusetts are having a tough time finding PCPs. So they may still end up delaying care and/or using emergency rooms inappropriately.

To get back to the question of who gets hurt by fraud and abuse: We all do; as unnecessary costs are added to the system, premium expenses go up, taxes go up, and everyone ends up paying for the misdeeds of a small minority.

Dr. Genes: Is it an exciting time to be a health lawyer in Massachusetts? You've covered the state's approach to improving healthcare access. Is the experiment working? How have you been involved?

David Harlow: It's always an exciting time to be a health lawyer here in the Former People's Republic of Massachusetts. Healthcare services form such an important part of the local economy, and the concentration of academic medical centers and other providers here makes for a heady mix of clinical, business, and policy innovation.

As a former government lawyer, and as a lawyer for a heavily regulated industry, I am very interested in the twists and turns of Massachusetts law and political theater. I've been working with some clients in ensuring compliance with the new universal health insurance law. I've also been commenting on it on my blog, as an experiment of interest in its own right, but also as a potent object lesson as the national healthcare reform debate has heated up during the presidential campaign. I even had my day as a guest blogger on Commonhealth, the local NPR [National Public Radio] affiliate's blog on Massachusetts healthcare reform.

The issue du jour in Boston is the anticipated universal healthcare budget-buster line item for the coming fiscal year. As the old saw would have it: "How do you eat an elephant?" "One bite at a time." So first Massachusetts is taking on access to care and, yes, it's expensive. Next up on the menu are cost and quality. It's hard enough attacking these issues one at a time; trying to do it all at once would be sheer folly.

Dr. Genes: You told The New York Times that you started blogging when you left a large firm to start your own group. How has the experiment worked out? You've gained a few clients via the blog, but have other clients been wary of your publicly aired opinions? As someone who seems to do his share of lecturing and academic writing, how have you approached the "dashed-off" nature of blogging?

David Harlow: I blog for several interrelated reasons, in no particular order: My blog is a public relations and marketing tool. When I left my previous position as a partner at a downtown law firm, I left behind a full-time marketing staff. Because everyone lives their lives online these days, an online presence is a must; I decided to start blogging in order to develop that online presence -- beyond a simple Web site -- in a cost-effective manner.

I'm constantly reading in order to keep up with the daily barrage of new regulations, policies, and business developments affecting the healthcare industry, so in a sense my blog is both my personal notepad, keeping track of new developments, and my personal forum for working out my own analysis of new developments. I've always had opinions about healthcare law and policy matters, and now I get to write about them as often as I like. I enjoy the freedom of writing less formally, too.

Finally, blogging has proven to offer a sense of community, simply through participating in this thing we call Web 2.0. In addition to the posts and comments going back and forth on a regular basis, here I am hosting Grand Rounds for the first time, and I've hosted other blog carnivals -- Blawg Review and Health Wonk Review -- a couple times each. I have gotten only positive feedback on my blog, from clients and others. Blogging's not for everyone, but I've been willing to put in the time to post a few times a week, and it's well worth it for me.

Dr. Genes: Your online bio says you're a Trustee at the New England School of Acupuncture (NESA). How did that come about?

David Harlow: I'm not just the chairman, I'm also a patient...Acupuncture has helped me and members of my family in situations where Western medicine has thrown up its hands, and I see it as an important complementary therapy. I am still a regular consumer of allopathic medicine. The opportunity presented itself not long after I had finished my term as chairman of another nonprofit board, so the timing was right to join NESA, which is one of the oldest schools of acupuncture in the country and has developed joint teaching, clinical, and research endeavors with some of the leading institutions of allopathic medicine in the Boston area.

Dr. Genes: What are some of the blog entries that really seemed to resonate with readers? Or something you wrote that provoked controversy?

David Harlow: Massachusetts recently approved a framework for licensure of retail clinics, which has proven to be fertile ground for blogging. I enjoy writing posts that are directly related to work that I'm doing. One such area that has yielded a lot of blogging is pay for performance. I view my most successful posts as those which bring together disparate developments and include some analysis that ties them together and highlights their relevance to my readers: for example, the federal government's "no pay for never events" policy and the Massachusetts report on hospital-acquired infections; MRSA and public reporting; and disruptive physicians and medical apologies.

Dr. Genes: Join David Harlow when he hosts Grand Rounds this week at his Web site, HealthBlawg. He will be highlighting the best in online medical writing from doctors, nurses, students, patients, and others making their living in the business of healthcare, such as Harlow himself.


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