The Role of In-House Counsel During the COVID-19 Crisis

Greg J. Matis (Moderator), Stacy R. Bratcher, Kirk L. Dobbins, Michelle Johnson Tidjani

Times of unprecedented uncertainty and turmoil magnify the role of in-house counsel as trusted advisor, risk manager and problem solver.  This fast-paced discussion will explore the unique challenges and opportunities for in-house counsel during the COVID-19 crisis, including both success stories and cautionary tales from the trenches on:

• Managing the high volume of novel issues streaming into the Legal function
• Issue spotting and decision making in uncharted territory, with risks all around
• The role of Legal in interdisciplinary crisis management, partnering with other key organizational stakeholders
• The challenge of keeping a close connection with both colleagues and clients in a socially distanced, virtual workplace
• Identifying, providing, and communicating value to key stakeholders
• The importance of self-care and mental health for effective performance
• Issue spotting and planning for the post-crisis world
• Doing all of this efficiently, as a cost center, in a time of plummeting revenues and revamped budgets

The Impact of COVID 19 on Corporate Governance

David E. Matyas (Moderator), Michael W. Peregrine, Lisa Diehl Vandecaveye, Fatema Zanzi

• Lessons learned on corporate governance during this pandemic
• The extent to which boards play a new/different role in the development and approval of new care models, innovation and partnership opportunities
• During the pandemic, metrics that were developed to facilitate the Board’s oversight of issues such as quality, safety and innovation
• Are new areas of expertise needed on the Board in order to effectively govern

• Current litigation trends
• The latest CDC and OSHA guidance for healthcare employers
• Proactive strategies for responding to employee requests for workplace accommodations or leaves
• Other emerging issues and key takeaways

• What is AI and what are the trends and some practical examples primarily from health care?
• What are providers doing in this space?
• What are the ethical considerations of using AI in health care?
• What are the legal issues to consider when health care providers are partnering with technology developers
• How is government regulation and policy supporting AI and similar innovation?

Getting to Yes: Executing a Successful Campaign to Launch a High Profile Health Sector Initiative

Dennis Culloton, Anne M. Murphy

In-house counsel play a unique and critically important role in assuring an integrated and multi-disciplinary approach to implementing high profile strategic initiatives in a manner that maximizes the likelihood of success, assures legal and regulatory compliance, engages all appropriate constituents across the organization (including governance), and makes judicious use of outside legal and non-legal consulting resources. By advocating for and helping to implement an interdisciplinary project campaign strategy, legal counsel can serve as a proactive advocate for critically-important innovation by the health sector client. This campaign needs to include several elements, summarized below:

• Counsel should anticipate all regulatory and legal hurdles to the initiative. Depending on the extent of the controversy associated with the initiative, this may include planning for possible litigation and state or local legislative scrutiny. The more innovative the initiative, for example by the use of technology or the implementation of unprecedented levels of service delivery, the more counsel also needs to anticipate gaps in current law or regulation that must be managed from a compliance and risk perspective
• Counsel should include and engage all appropriate members of the executive team in the campaign. In many cases, this will include key members of the senior management team, finance, strategy, communications, government affairs, and clinical affairs. A standing working group may be advisable. It is also critically important that a disciplined approach to client governance oversight be developed
• The front end strategy should also incorporate as appropriate external legal, communications and government relations resources. At the early stages, there should be a proactive assessment not only of the potential regulatory and legal challenges, but also likely opposition or concern from competitors, elected officials, and community leaders. Prospective allies and advocates for the project should be identified, as well. A detailed game plan and timetable for approval should be developed; this should include a communications and media strategy
• Case studies and war stories, to lend interest and practical guidance to the session. Among other examples, the speakers will describe challenges in facility closures and downsizings, entry into new geographic or service markets, and expansion of investor-backed health sector initiatives

• Model Rules technology competency requirements
• Apply Model Rules’ technology competency requirements to health law practice
• Risks and professional liability issues associated with technology

• Increased state scrutiny of health plans’ compliance with mental health parity laws
• State and Federal regulatory issues and trends in consumer incentive and reward programs
• Role of the in-house lawyer in Texas v. United States planning and mitigation strategies
• Legal and compliance coordination in health plan COVID-19 response
• Changing policy and regulatory landscape surrounding social determinants of health–shifting government response
• Strategies to support social isolation and other “return to normal” issues for vulnerable populations

• Comparison of ethical and professional responsibilities that apply to attorneys and compliance professionals
• Common issues facing attorneys and compliance professionals in a highly regulated arena especially for a variety of structures: Legal and compliance in one department, legal and compliance in separate departments, entities who only have compliance or legal but not both
• Relevant case law pertaining to ethical and professional responsibilities
• Ethical conflicts between client goals and legal principles
• Whose issue is it anyway: Legal, compliance, or both?
• Maintaining privilege when dealing with the gray area of compliance/legal issues

• How early decisions in responding to a government investigation impact the ability to settle later on
• Should you share the results of your internal investigation with the government? If so, when?
• What are the pros and cons of beginning settlement discussions early in the government’s investigation?
• When is it advisable to obtain cooperation credit?
• What are effective and ineffective techniques during settlement discussions?
• Should you go above the Trial Attorney/AUSA on the case? If so, when?
• How will cooperation be viewed with regard to pandemic-related investigations?

This session will cover current trends in data commercialization, rights and obligations under HIPAA and the impact of other data privacy laws, and contracting tips from both the academic medical center and health information technology services vendor perspective. Key topics to be addressed include:

• The health data privacy landscape in the U.S.
• Data commercialization under HIPAA
  • Uses and disclosures by covered entities and business associates
  • Sale of PHI
  • De-identification methods and challenges
• Perspectives on commercialization rights
  • Public hospitals / Academic Medical Institutions
  • Health information technology services vendors
• Contracting considerations
  • De-identification rights / obligations
  • Use Rights
  • Data ownership
  • Fraud and abuse risks
  • Indemnification
  • Insurance
• Lessons from the field
  • Case Discussion
  • Compliance with law versus negative publicity
  • FOIA requests
  • Transparency and consent
  • Academic Medical Institution perspectives