Meeting the legal needs of today's healthcare providers involves a collaborative approach to facilitate the many aspects of healthcare organizations — building, running, buying, selling, taking apart and rebuilding.
At the office of Copeland, Cook, Taylor & Bush, PA, in Ridgeland, that often means reaching into several different legal teams within the firm of more than 60 attorneys, said Thomas L. Kirkland Jr., who chairs the firm's healthcare group.
"A couple of years ago, we were involved in a hospital sale in Meridian, where we had to bring in real estate lawyers," he said. "Then some of the parties involved were making money, so we had to bring in tax lawyers. We had to bring in labor lawyers for issues in transferring employees over. In a transaction, we might also bring in someone who does securities work to help with the documentation."
A large part of the healthcare law practice of Kirkland and his team has been supporting their clients' petitions and appeals to obtain certificates of need (CON) for new facilities and equipment.
In regard to the CON process, Kirkland and others are watching to see how the 2007 Mississippi Legislature chooses to implement the recommendations it solicited in a new study by the American Health Planning Association. Released in October, the report affirms that there is "no compelling evidence that the program is 'broken' or needs to be 'fixed,'" but also that there are also many opportunities for improvement that would help "maintain confidence in the program."
Among the recommendations that would affect the handling of CONs in Mississippi is a proposal to switch from a quarterly to an annual or semiannual cycle for batch processing of CON applications. The report also recommends expediting proposals for nonclinical items such as parking structures, administrative space and data-system upgrades.
Projects that may soon require CONs if the Legislature follows the report's recommendations include single-specialty surgery centers, mobile services making the transition to fixed services, and hospital beds and healthcare facilities that haven't been needed for a year or more.
The report also shows that the number of CON applications reviewed each year has dropped by more than half during the last two decades, due to "legislative changes, legal rulings and evolving practices." Much more common now than actual CON decisions are declaratory rulings, usually certifying that CON review is not required for a planned project. Looking forward, the number of CON applications is likely to average about 50 per year, according to the report.
As the process is refined, Mississippi may also see a drop in the number of CON applications appealed in court.
"There seems to be more litigation in recent years concerning certificates of need matters," Kirkland said.
"I think the Department of Health is probably getting better at analyzing the applications. Meanwhile, the courts are understanding more about the importance of the CON program and we're getting some well-reasoned, consistent decisions. If we get enough, it should decrease the amount of litigation."
In addition to their involvement in the process of helping healthcare providers argue their cases for new services and facilities, healthcare attorneys also spend a great deal of time working with their clients to structure the best and most efficient models of care delivery.
That process has been a "cyclical" one for Gregory D. Frost, a partner with the 300-attorney firm Adams and Reese LLP in its Baton Rouge, La., office. A part of the cycle, he said, has been helping hospitals build integrated delivery systems — only to help take them apart later.
"A lot of hospitals owned nursing homes at one point," he said. "They have a very symbiotic relationship, but they are dramatically different to manage. There is a certain amount of chauvinism among hospital administrators who think if you run a hospital, you can run anything, and that just isn't so. It's a different art entirely."
Frost also points to the experience of FiCor in the early 1990s as proving that the concept of hospitals owning physician practice groups isn't a good idea.
"That was something that on the surface made a lot of sense, but in reality was a disaster," he said.
"It was doing really well until they realized that employed physicians don't work as hard as self-employed physicians. Pretty soon, most of the hospitals decided they wanted to get out of the business of employing specialists."
In his business law practice, Frost has seen some combinations prove to be successful, including the pairing of long-term acute care (LTAC) hospitals with temporary rehabilitation units and skilled nursing facilities.
"You do central intake and you end up with patients getting the most ideal care," he said. "And for each of the facilities, because they're not taking patients they really shouldn't, it's a more efficient model as well."
Home health services could also be added to such a mix, he said.