An Interview With Barry Liss, Co-Leader Of The Gibbons Healthcare Practice

Monday, October 24, 2011 - 13:11

Barry Liss joined the Newark-based law firm of Gibbons P.C. in August, to lead and expand the firm’s healthcare practice. The Editor spoke with Mr. Liss to discuss why Gibbons is choosing to broaden its healthcare practice and what he will bring to that practice.

Editor: Why is it important for law firms to develop their healthcare practices at this point in time?

Liss: Healthcare expenditures will soon account for close to 20 percent of GDP. The government, private sector and consumers are all faced with these dramatically increasing expenditures on a daily basis. So, at both the macro and micro levels, the healthcare sector and, therefore, the laws that relate to it, are very much in the forefront these days. Mid-size and large law firms are simply compelled to develop strengths in this area of practice, which is primed for growth.

Healthcare reform – that is, the recently enacted Affordable Care Act – was predicated on these economic undercurrents. The increasing pressures on this part of our economy and marketplace, in terms of escalating premiums, shrinking provider reimbursement and demands for innovative cost control methods, demanded some type of government response.

Consequently, the passage of the Affordable Care Act has heightened awareness among law firms, industries, business and government to address these concerns and craft solutions. This will increasingly require qualified healthcare counsel, ideally those who have been students of and practiced in the healthcare system for quite a few years.

Editor: What kinds of legal services are being sought in the healthcare sector?

Liss: There are many different types of entities that “live” in the healthcare sector. For example, there are hospitals, doctors, insurance companies, HMOs, healthcare administrative services providers, health information technology vendors, financing companies that specialize in healthcare lending, and the list goes on and on. These entities face numerous issues right now, but a “for instance” that is getting more and more attention involves breach of patient privacy.

Dealing with the protection of patient information in the digital age, with portable devices that contain large amounts of very personal and legally protected information, is a real challenge. Even though the law prohibiting certain disclosures was put into effect 15 years ago, we’re seeing more and more privacy breaches and more and more governmental enforcement activity as a result. With healthcare providers and payors all dealing with these privacy issues, they are relying on their legal counsel for help. In fact, there seems to be a cottage industry of data breach mitigation vendors who are now aggressively marketing their mitigation services – that is, damage control – to commercial carriers and providers alike.

Healthcare providers are also increasingly seeking legal advice with regard to reimbursement matters. Today, the pressure to control costs on one hand, and to obtain reimbursement on the other, is immense. Governmental agencies have received significantly more resources to engage in data mining and now use the equivalent of bounty hunters, called Recovery Audit Contractors (RACs), to find overpayments. RACs work on a contingency basis for the government. Now, all types of providers – hospitals, physicians, physical therapists and others – are absolutely in the crosshairs as a result of those data mining activities, whether rightfully or, in the case of overzealous investigators, wrongfully. While many large health insurance companies have had sophisticated investigations departments that have been data mining for a long time, the magnitude and scope of these current government initiatives are without precedent.

On a more positive note, today’s heightened attention to cost control provides opportunities for those who can design innovative healthcare delivery models. For example, delivery models that align the interests of payors and providers are now being piloted throughout the country. I should add that this idea isn’t entirely new; this was a goal during the early HMO movement in the 1970s and 1980s. But it seems that today, the struggle to design a delivery model that puts payors and providers on the same page is more focused. The current availability of more sophisticated, yet less expensive, computer technology that provides real-time analysis of cost and quality makes these innovative models more attainable.

The so-called “accountable care organization” is one such model. Gibbons has already worked with one of its healthcare clients to structure a substantial ACO pilot program that is now underway and treating patients.

Editor: The Affordable Care Act was about reining in government expenditures. Do you see the same kinds of costs controls occurring in commercial insurance?

Liss: Yes. People use the term “ACO” loosely. In practice, the term ACO describes more than the federal ACO program for Medicare beneficiaries. In fact, it is more common to see an “ACO” model in a non-governmental setting, often relying on covered lives that are enrolled in self-funded employee health plans. In New Jersey, by the way, there is another set of laws for what are known as organized delivery systems that are often implicated when structuring a commercial ACO arrangement. So, as you can see, understanding local legal requirements is essential when working with clients who endeavor to create new types of healthcare delivery models.

Editor: Tell us about your professional background.

Liss: I was fortunate enough to be offered a fellowship at the New Jersey Department of Health, with the equivalent of its general counsel, while I was still in law school. My first job after law school was in-house counsel at Horizon Blue Cross and Blue Shield of New Jersey, which had at the time (and still has) an excellent legal department. My responsibilities were mostly in the managed care area, including provider network contracting for all the various provider networks that Horizon was operating at the time. I was also involved in supporting the internal credentialing processes of Horizon’s HMO and similar dental networks, their continuous quality improvement and patient appeals of denied coverage and related matters.

I left Horizon to work with a preeminent regional healthcare boutique law firm. While there, I was again very fortunate to work with the leading healthcare attorneys in the state. As a boutique firm, we dealt with both the broadest, and also at times very narrow, issues that arise in the healthcare sector. I remained with that firm for 14 years, after which I came to Gibbons.

Editor: How will your practice complement the healthcare practice at Gibbons?

Liss: My background will help Gibbons expand the range of services offered by its healthcare team. Having devoted a substantial amount of my professional background to regulatory and reimbursement matters and network contracting, for example, I can contribute these practice components to the firm’s already strong healthcare team. In addition, my background in provider network development and managed care arrangements will be beneficial to our healthcare clients who are seeking to structure the type of innovative healthcare delivery models I noted above, including integrated delivery systems, accountable care organizations and other types of joint ventures and pilot programs involving payors and providers.

Gibbons has had a highly regarded healthcare practice for years, well-known for its work in fraud and abuse counseling and defense, mergers and acquisitions, HIPAA compliance and broader regulatory and government affairs counseling. For example, Gibbons has long represented physician practice groups, hospitals, federally qualified health centers, and home healthcare, visiting nurse, hospice and other healthcare systems, in various capacities as outside general counsel, and with respect to mergers, affiliations, acquisitions, joint ventures, management agreements and divestitures. The chair of the firm’s Corporate Department, Frank Cannone, oversees the general corporate and transactional work undertaken by the healthcare team, notably Michael Lubben and Peter Carton. And I look forward to working with David Crapo on the types of HIPAA and privacy matters I mentioned earlier, his areas of concentration.

Gibbons also has a national reputation with regard to healthcare fraud and abuse issues. Bruce Levy, for example, the other co-leader of the healthcare team, is a former assistant U. S. attorney and criminal health care fraud coordinator for that office.

I am particularly enthusiastic about the opportunity to work with the Gibbons Government Affairs Department, the top lawyer-lobbying group on health issues in New Jersey, which, by the way, has always been the go-to healthcare lobbying group used by my former firm.

What I believe I will bring to the practice is the insight I’ve gained working in the healthcare sector for many years. For example, my professional background includes working for the University of Wisconsin Center for Health Policy Program Evaluation in the 1980s and conducting a study, commissioned by the Wisconsin Department of Health, of a mandatory Medicaid HMO enrollment program in two counties. So my healthcare sector experience goes back a long way, including those years prior to my becoming an attorney. With that, combined with my many years of legal practice steeped in the healthcare industry, I have tried to develop a core competency regarding the healthcare marketplace and therefore an understanding of our healthcare clients’ concerns, goals, objectives and pressures.

I also believe I will help the Gibbons healthcare practice stay connected to various significant industry players and policymakers. For example, this past June I was nominated by Governor  Christie to the Catastrophic Illness in Children’s Relief Fund Commission. My appointment is currently pending before the state legislature. This Commission oversees the distribution of funds to New Jersey families who experience significant financial hardship due to the medical costs of children in their households.

I am very excited to contribute to the Gibbons healthcare team and look forward to working with others here at Gibbons to provide the full range of legal services that various constituencies in the healthcare arena might require in this rather tumultuous and certainly interesting time to practice healthcare law.

Please email the interviewee at bliss@gibbonslaw.com with questions about this interview.