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Health Law

PSJD Career Guide

This Guide is designed to give you a brief overview of the legal field in Health Law. It provides practical information regarding the types of employers and practice settings in which you can pursue a career; the practical skills that you can gain during law school; and resources to further research this rewarding field.

This content is courtesy of the Bernard Koteen Office of Public Interest Advising at the Harvard Law School. The information in this guide was researched and prepared by Catherine Pattanayak, Assistant Director Joan Ruttenberg, Director of the Heyman Fellowship Program & Annelise Eaton, 2012 Summer Fellow.

What is Health Law?

Health law is an incredibly broad, diverse and dynamic field of law. Health lawyers work on cases and policy relating to access to care, insurance coverage, difficult ethical choices (particularly at the beginning and end of life), providers of care (and how these providers are organized and paid), the safety of our drugs and food supply, disease prevention and treatment, and many other fascinating topics. In part because of the breadth of the field, health law also cuts across and involves doctrine and practice from a wide array of areas, including contract law, tax law, corporations and nonprofit organization, insurance and pension law, employment and labor law, public benefits law, torts, ethics, criminal law, administrative law, privacy, civil rights, reproductive rights, constitutional law, and statutory drafting and interpretation—even First Amendment religious liberty and freedom of speech concepts can be implicated in the field of health law. And health law is practiced in a dizzying range of settings: in federal, state and local government; in legal services organizations; in advocacy nonprofits; and in private public interest law firms, to name a few. Students and alumni attracted to health law as a career path can choose among many different types of legal practice, from direct client services to agency counsel or in-house work to policy work. These multiple diversities make health law a field where almost anyone can find an area of interest, and where those working within the field can often find new challenges.

In such a complex field, there are many ways to categorize the different issues lawyers may tackle in the health field. This particular organization is designed to give you a sense of the shape and breadth of the field, not necessarily to be exhaustive or authoritative.

Access to Care

Whether and how individual patients can access health care services lies at the core of a great deal of health law and policy. Issues of interest to the health lawyer here include:

Insurance: The ability of individuals to access health care through private health insurance raises questions of the affordability of coverage, barriers to coverage, and the adequacy of the specific benefits available.

Public Benefits: Many individuals and families rely on public benefits or publicly run insurance schemes to cover their health care costs. The structure and implementation of Medicare and Medicaid, and the plans of individual states and hospitals to manage uncompensated care, raise complicated questions of law and policy.

Provider behavior: When a patient is refused care by a provider for any reason, legal issues may arise. Often implicated are EMTALA (the federal Emergency Medical Treatment and Active Labor Act), refusals to offer specific treatments due to religious concerns, and differential treatment of undocumented patients. Issues of reproductive freedom and end-of-life care can also be raised.

Reimbursement and cost containment: Every insurance or public benefit system involves a complex arrangement for reimbursing providers for the care they provide; these arrangements alone tend to generate significant legal activity. And since a refusal to reimburse for a service can, in essence, amount to a denial of the service, such issues are of great concern to patients as well as providers.

Public Health

Public health as a field encompasses such areas as epidemiology and disease or injury prevention, maternal and child health concerns, quality of care, and the cleanliness, purity and safety of public resources. States’ “police powers” allow them to regulate to prevent or mitigate threats to public health. Many of public health initiatives may raise legal questions about government power and authority, individual rights and enforcement. Most public health law and regulation takes place at the state level, though there are federal components as well.

Antitrust Law

Increasing levels of provider combination (both among similar providers, and between providers and their suppliers) and the increasing ability to track costs and charges means the potential for increased violations of federal or state antitrust laws. These can include laws concerning provider mergers, bid-rigging, or price-fixing.

Pharmaceutical and medical device development and regulation

Advances in medical technology and pharmaceuticals create a diversity of legal issues, including:

  • Approval processes for new drugs or devices
  • Access by patients to experimental or expensive drugs, or to drug trials
  • Insurer willingness to reimburse for experimental or unproven treatments, medical technology or drugs
  • Development of drugs for rare or unusual conditions
  • Competition, comparability and reimbursement for proprietary vs. generic drugs
  • Bioethical concerns regarding research protocols and subjects, as well as conflicts of interest in medical research
  • Intellectual property rights to scientific discoveries and products
  • Enforcement of quality standards against unapproved or “quack” remedies

Food policy and regulation

Federal and state law heavily regulate how food is farmed, manufactured and sold to both control production and maintain healthy standards. Legal issues can stem from farm subsidies that produce unwanted outcomes, food additives and labeling, and enforcement of wholesomeness standards.

Criminal law

Criminal law in the health care field is most often implicated in the form of prosecutions for fraud (Medicare, Medicaid, or private insurers), of “quack” medicines or practitioners, or for negligence rising to the criminal level.

Medical malpractice

Medical malpractice is an area of health law and policy all its own. The field raises questions of the appropriate apportionment of responsibility and blame for adverse medical outcomes, the best way to structure a compensation and insurance system to deter negligent practice and adequately compensate victims, and the impact, or lack thereof, of the costs of malpractice on the health care system as a whole. Malpractice lawyers might represent practitioners, patients, or insurers.

Constitutional law and civil rights

Many legal issues relating to health care have Constitutional implications. These can include disputes over reproductive rights and abortion, privacy rights, civil rights (gender, age or disability discrimination in access to insurance, care, or educational or employment opportunities in the field), and religious conflicts with the provision or acceptance of care. Health care privacy may in some instances rise to the level of a Constitutional concern.

Where can I practice Health Law?

Health law issues can be all or part of a lawyer’s practice in a wide variety of settings. This section describes and provides general background information on four distinct practice settings.

Non-Profit Organizations

There are many nonprofit organizations whose missions deal in whole or in part with health care issues, and they are located throughout the country and abroad. The number and variety of such organizations precludes any sort of listing here, but a few generalizations can be drawn. Of course, many nonprofits engage in more than one of these activities:

Direct services: Some nonprofits specialize in direct legal services to clients. Those which provide services related to health care are most likely to be either general legal services offices (most will have units assisting their clients with health care insurance or public benefits issues), or specialized legal services offices (for example, offering services to those infected with HIV, to elderly clients, whose legal concerns often involve health care, or to veterans). An example of the former type of office would be the LegalHealth Unit at the New York Legal Assistance Group; an example of the latter would be WhitmanWalker Health in Washington, DC, which serves the health law needs of the gay, lesbian, transgender and HIV-positive communities.

Policy/legislative advocacy: Other nonprofits may be engaged in health law work at the policy level. Health Care for All, for example, works towards legislative and regulatory solutions to ensure access to care for all Massachusetts residents. Families USA works on similar issues at the national level.

Impact litigation: Still other nonprofits engage in impact litigation to effect social/systemic change in health care. For example, the American Association of Retired Persons (AARP) partners with legal services and other advocacy groups to bring impact litigation to improve conditions for elderly Americans.

Government

A number of different government actors deal with health care issues at the federal, state, and local levels.

Federal: While much of health care is regulated at the state level, a considerable health law infrastructure exists in federal government. Health law opportunities can be found in executive agencies including the U.S. Department of Health and Human Services (HHS), the U.S. Department of Justice (DOJ), and the Federal Trade Commission (FTC) and in various congressional committees including Senate HELP (Health, Education, Labor and Pensions), House Energy and Commerce (Subcommittee on Health) and the Senate Finance Committee (Subcommittee on Health Care).

State: Most health care regulation occurs at the state level, including the majority of public health and insurance regulation, as well as professional licensure and accreditation. Both the organization and quality of state agencies and legislatures (and even their names) vary considerably across states, so extra homework is required to determine whether a particular office would be a good employment prospect, even if it does deal with health care.

Local Government: Most cities and municipalities will not have a large health care or health law infrastructure, but some of the largest cities will have, for example, a city health department comparable in size and scope to a state department. New York City and San Francisco are two examples of such cities.

Law Firms

Private Public Interest Law Firms: A small but growing number of private firms practice public interest law. Such firms work for under-represented groups or specialize in issue-oriented work, such as civil rights litigation, tenant advocacy or representing whistleblowers. Most of these firms have relatively small staffs and some charge fees on a sliding fee scale or maintain a traditional private practice in order to fund public service ventures.

Private Law Firms: Attorneys in private practice can specialize in health law; the content of a particular practice, of course, will depend to a large extent on the nature of the clients.

In-house

Many institutions in the health care field have in-house lawyers who replace or coordinate with outside counsel. While these institutions are generally private sector entities, many of them are in the form of nonprofit or public benefit organizations. Such institutions can include hospitals or health care systems, HMOs, health care insurers, and professional associations.

What can I be doing in law school to help my career in Health Law?

Students interested in Health Law should learn as much as possible about health law organizations that hire attorneys, issues within this field, and the types of work that health care attorneys perform at government agencies, nonprofits, provider organizations and firms. Explore the websites of organizations devoted to health law to learn more about their approach and the particular issues that they address. Set up informational interviews with health lawyers to learn more about the variety of paths that law school graduates take to practice this type of law. All this research will help you begin to learn the contours of the field.

Public interest health law employers will want to see a demonstrated interest in health law and evidence that you are committed to public service. These can be manifested through your courses, extracurricular activities, clinics, and summer employment. You will want to highlight all such experiences in both your resume and your cover letters. At a minimum, you should spend at least one summer (or several clinical placements) in a public interest setting. And to be competitive for most health law positions, you should also have specific health law experience, including one or more summer internships or clinical placements at a health law organization. Such experiences will help you make choices about your direction and will deepen your health law resume.

Resources

The following links will be useful as you continue to explore this field:

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