In April 2021, Burford Directors Christine Azar and Andrew Cohen directed questions concerning the most salient industry forces and the most high-value disputes in the health care sector to a respected group of law firm leaders. An excerpt from the roundtable appears below.
The past year has been one of upheaval for all industries, but especially for health care. What has been the most significant challenge for your clients?
Steve McBrady: One of the most remarkable stories of the past year has been the ability of the health care industry, and in particular health insurers, to adapt to new challenges in delivery, processing and member care—while working in an almost entirely remote environment. Health insurers have been operating in an evolving regulatory environment, as public health officials have assessed and acted upon the risks presented by the Covid-19 pandemic. The Centers for Medicare & Medicaid Services (CMS), as well as states and localities, have issued constantly evolving guidance and regulations impacting the health care supply chain, and health insurers have quickly adapted their business to meet the needs of their members under these extraordinary circumstances.
Jason Cowart: Trying to survive. I represent providers and their patients in disputes with health insurers. Before litigating such disputes, and especially because there are only a handful of health insurers, my clients must carefully balance their short-term needs (which might depend on a less than hostile relationship with the dominant health insurer) against their longer-term interests (which might require litigation). The past year made it all but impossible for many of my clients to consider anything beyond next week. At the same time, it produced record profits for the health insurance industry and left it stronger and more consolidated than ever.
Stephanie Carman: My clients have continued to provide excellent care despite a number of challenges. Some of the key challenges revolved around staff. For example, making sure that sufficient staff was available and able to serve patients was critical. This sometimes involved hiring new employees, retraining others, using staffing services and working as a team. Additionally, it required making sure the staff had access to personal protective equipment (PPE) and sufficient space and equipment to care for patients. For staff providing care in patients’ homes, challenges also included having enough staff and PPE as well as ensuring that the patients’ families were willing to work with the staff to ensure protections were in place and appointments were kept. Additionally, keeping staff morale up was critical as they were facing constant pressures and daily changes.
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Stephanie Carman is a shareholder in the Miami and Washington offices of GrayRobinson, focusing her practice on the health care industry. She provides strategic advice on regulatory issues, transactions, investigations and litigation. Stephanie represents corporate, governmental, academic and individual clients in administrative actions and federal and state courts at both the trial and appellate levels. She also works with clients on internal investigations and responding to governmental requests for information.
Jason Cowart is a partner and New York-based litigator with Zuckerman Spaeder who represents health care providers and their patients in high-stakes disputes with health insurance companies. A recent trial victory was identified by CNN as “one of the most important and most thorough rulings ever issued against an insurance company, at the federal level, on mental health issues.”
Steve McBrady is Co-Chair of the Government Contracts Group at Crowell & Moring, and a member of the firm’s strategic growth committee. He represents domestic and international clients in high-stakes matters involving the US government. In 2020, he served as counsel in Maine Community Health Options et al. v. United States at the US Supreme Court.