As recently as 40 years ago, healthcare law as a specialty didn't exist. The legal landscape is markedly different today, with many large firms including health law practice groups and many hospitals hiring large in-house attorney staffs to provide oversight and counsel on day-to-day issues.
In the early 1970s, "there was no notion" of health law as a specialty, Douglas A. Hastings of Epstein, Becker & Green in Washington D.C., told Bloomberg BNA. Since the first few boutique health law firms started cropping up, the specialty area has evolved immensely.
Here are eight things to know about how health law has changed from its infancy to where it is today, according to Bloomberg.
1. In the early 1970s, though some small healthcare-oriented law firms began to emerge, most firms were not entering the health law space, and virtually no lawyers identified as health law specialists, Mr. Hastings told Bloomberg.
2. On the provider side, some hospitals had small in-house attorney staffs, but most sought counsel from outside lawyers, primarily generalists, said Frederic J. Entin, shareholder at Polsinelli in Chicago, according to the report. Attorneys predominantly saw hospitals as businesses with few unique legal issues, such as questions related to nonprofits keeping their tax-exempt status.
3. The trend of adding in-house attorneys took off in the 1990s, according to Mr. Entin. Today, most hospitals include large, in-house attorney staffs, but still turn to healthcare-dedicated firms on complex and technical issues.
4. The development of health law as a specialty was catalyzed by certain legal and regulatory developments in the 1960s, according to Mr. Hastings, such as the amendments to the Social Security Act in 1965 that established Medicare and Medicaid.
Subsequently, the Professional Standards Review Organization Act was adopted, which established organizations in 1972 to review healthcare services paid for by Medicaid, Medicare and other federal programs. The federal Health Maintenance Organization Act was enacted in 1973, which was designed to increase coordination between payers and providers. Then came the National Health Planning and Resources Development Act of 1974, which created state-based organizations to oversee the development of healthcare facilities, according to the report.
5. Other important healthcare laws, such as the federal Anti-Kickback Statute, which was enacted in 1972 as part of the Social Security Act amendments, got more play after Congress added the "safe harbor" regulations in 1987. The Stark Law was added in 1989. And although the False Claims Act had been around since the 1860s, the government ramped up efforts to enforce the law in the 1980s and 1990s, Mr. Entin told Bloomberg. These laws created a much higher demand for lawyers who could advise providers on compliance issues, as well as defend against accusations of noncompliance or violations.
6. Additionally, the accelerated pace of mergers and acquisitions in the 1990s created more need for lawyers who specialize in antitrust issues specifically related to healthcare.
7. The Affordable Care Act has added a new, complex layer to the healthcare law field, as the transition from fee-for-service to value-based payment models is providing new areas of focus for healthcare attorneys, according to the report.
8. Healthcare law is a "really exciting field, with no end in sight," Mr. Hastings said, adding that he would encourage young lawyers to enter the field. Mr. Entin agreed, saying healthcare is a "fascinating industry that's not going to go away," according to the report.