Health law.

In 1995 the Supreme Court authorized the first area of legal certification that was industry-focused, rather than attorney practice-focused. With the overarching purpose of board certification to provide the public a means of identifying attorneys with particular expertise for their legal issues, it was fitting that Health Law Certification was granted this industry-focused opportunity.

The approval by the Supreme Court followed a three-year debate of members of the Bars Health Law Section. Ultimately, the executive council of the Health Law Section came to the conclusion that health care executives and providers were better situated than most of the public to appreciate the achievement and distinction of board certification among attorneys serving the health care industry. Additionally, the executive council recognized that health law was becoming unique and more specialized and that offering legal specialization in the practice area would serve to distinguish those attorneys who practice substantially in the area from their colleagues who practice in complimentary areas.

Health care expenditures currently represent in excess of 13 percent of the gross domestic product. No other industry or profession is as imbued in recognition of specialties as health care providers. The vast majority of health care providers and entities are either board-certified or accredited. Executives of hospitals and health care companies often are certified by the American College of Health Care Executives, where advancement to the level of fellow marks a milestone in professional development. Physicians, of course, may be certified by the American Board of Medical Specialties in their respective medical specialties. Hospitals and ambulatory surgical facilities are most commonly accredited by the Joint Commission on Accreditation of Healthcare Organizations, in addition to undergoing certification by the Centers for Medicare and Medicaid Services to participate in the Medicare and Medicaid programs. And the JCAHO has expanded its scope of certification to ancillary service providers. In addition, health maintenance organizations, which may be accredited by the JCAHO and/or the National Committee for Quality Assurance, require contracted physicians to be board eligible or certified. The certification of health lawyers was sure to be understood and appreciated by the industry.

The most significant challenge faced by the Health Law Section, and subsequently by the Health Law Certification Committee, has been defining the practice area. Board certified health lawyers may be in a transactional practice, administrative law practice, litigation practice, or other area. Lawyers may be in private practice, state or federal governmental employment, or in-house counsel with a closely held corporation or publicly-traded corporation. Unlike other areas of legal specialization, the practice of health law cuts across other practice areas. It may range from corporate and tax law to elder law to bio-ethics, from securities law to antitrust, to litigation and administrative law to criminal defense, with most health lawyers emphasizing subspecialties within their practices. Board certified health lawyers may counsel hospitals and health care facilities on a variety of issues, structure business relationships, resolve reimbursement disputes, defend or prosecute licensees, or counsel on fraud and abuse implications in transactions between health care providers and referral sources. The scope of health law certification has been defined since the outset to include the core competencies generally recognized by experienced practitioners as fundamental to the specialty practice of health law.

The role of the health lawyer has been made much more complex by the turbulent health care system. Market and regulatory forces have forced rapid and dramatic changes in how the health care industry conducts business. As a result, counseling health care providers has become increasingly problematic, exposing both the client and attorney to increasing liability. The impact of the attorney's legal advice in health care decisions can result in administrative, civil, and criminal sanctions to both client and attorney. The case of U.S. v. Anderson, No. 98-20030-01 (D. Kan. Mar. 9, 1999), see also In Re: Grand Jury Subpoenas, 144 F.3d 653 (10th Cir. 1998), in which two health care attorneys were indicted for aiding their clients in transactions alleged to be in violation of the Medicare and Medicaid Fraud and Abuse Amendments to the Social Security Act, sent a chill throughout the health law bar. For many health lawyers, this case represented the watershed in counseling clients on fraud and abuse matters.

Since the first class of health law attorneys was certified in August of 1995, the practice has shifted, by necessity, to play a more active role in education and prevention as clients have become increasingly aware of the severe penalties for noncompliance with the laws regulating the health care industry. To mitigate potential criminal exposure, health care providers have turned to compliance programs. Health law attorneys conduct audits, develop compliance programs, and implement corrective action plans for health care providers. Board certified health lawyers may defend clients or act as co-counsel to criminal defense counsel. The practice of health law, once the province of medical malpractice defense lawyers and specialists in tax exempt organizations, has shifted toward mergers and acquisitions, corporate law, and criminal defense, in response to the needs of its clientele.

Whistleblower lawsuits against health care companies have become increasingly commonplace as current and former employees file qui tam actions. The more sophisticated health care companies and providers increasingly recognize the value and benefit of using the services of an experienced, board certified health lawyer to address issues before they become the elements of a qui tam complaint. In recognition of the expertise evidenced by health law certification, in-house counsel for various publicly traded and tax exempt health care companies have stated that beard certification will be a significant consideration in any request for legal service proposals.

To become board certified in health law, an applicant must have practiced law for at least five years prior to the application deadline, currently October 31 each year. Their practice during the three years preceding the application date needs to be predominately, 40 percent, dedicated to health law issues. An applicant must have completed at least 60 hours of approved intermediate or advanced health law certification courses in that same three-year period. The applicant must also provide a list of five individuals, who are not related and do not practice with the applicant, and can attest to the applicant's knowledge and capability in the practice area. Upon review of the application and confirmation of the requirements, the Health Law Certification Committee recommends to the BLSE qualified individuals to sit for the health law certification exam the following May. Those passing the exam will then be certified for five years.

There are currently 95 beard certified health lawyers in Florida. This past year the area of health law certification completed its second year of re-certification, with 11 applications approved for re-certification. Fifteen applicants were approved for the 2002 exam. Currently, Florida is the only state with board certification in health law, although other states have considered establishing health law certification standards, and the area is currently under study by the State Bar of Michigan.

Future classes of board certified health lawyers will have the opportunity to continually assess and redefine the practice of health law. The practice of health law promises to continue to be extremely challenging as the health care system continues to evolve. Practitioners who wish to offer their services to the health care industry will be well-advised to become board certified, and maintain certification, in health law. Their accredited and certified clients will appreciate the distinction.

William J. Spratt, Jr., is vice chair of the Health Law Certification Committee and was board certified in the first class in 1995.

James A. Farrell has been a member of the Health Law Certification Committee since 2001 and was board certified in the first class in 1995.