Harry Nelson

Founder & Managing Partner at Nelson Hardiman

T: +1 310 203 2800 E: hnelson@nelsonhardiman.com

An Exclusive Q&A.

On A Look At Healthcare Law in 2014

With Harry Nelson...

1) How does healthcare work in your jurisdiction?
Our system is a mixed public/private system in which the largest payor source is publicly funded (Medicare/Medicaid) with a private third party payor insurance market, and a private consumer-focused component for non-insured services.  Within the publicly funded and private third party payor systems, there are some providers working in a managed care, more cost-controlled environment and others working in a fee-for-service mode.
2) Can you talk us through the trends worth watching as a result of disease patterns, market size and economics, demographic shift and the current health status?
The single biggest trend is the aging of the US population, with the oldest baby boomers reaching their late 60s and life expectancy pushing into the 90s.  Over the next 30 years, we will see a new level of seniors with a growing demand for healthcare services, including long-term care and physician management of geriatric conditions.  A derivative trend (also accelerated by greater pressure on hospitals) is shifting higher levels of acuity lower down in the system.
Other key trends flow from the Affordable Care Act:  a burgeoning lower income population of people with new access to care and opportunities for low cost providers who can function profitably in servicing that market, including safety net providers such as community clinics, and a related emergence of a larger sector of consumer-oriented providers focusing on convenience, including mobile health and an emerging “concierge for the middle class”.
3) What impact is this likely to have for patients, physicians and policymakers?
Patients are going to see major changes in the healthcare system.  As healthcare providers are under growing demand and greater cost control, access to care is going to be more limited in the third party payor systems.  Waits will increase, and patients will experience more barriers to “expensive/invasive” kinds of care, with greater emphasis on preventive, wellness.  Patients will see more options for self-paid private resources emerge.
More physicians are being forced to make choices about how they participate in increasingly bifurcated systems.  To be part of the growing, managed care systems, physicians have migrated into larger organisations, often hospital-affiliated and away from solo/small practice models of practice.  Other physicians who are resisting this broad trend need to shift to more entrepreneurial modes and to identify new revenue sources other than physician professional fees, such as surgery centre facility fees.
Policymakers have accelerated major directional shifts in the system, through the Affordable Care Act and its numerous components.  The coming decades will be filled with addressing the unexpected consequences of the ACA, such as the challenge of diminished access.
4) Have there been any recent regulatory changes or noteworthy developments?
Regulatory changes flowing from the implementation of the ACA have been coming steadily over the past three-four years, so it’s hard to pinpoint just one.  The HIPAA Final Omnibus Rule in September 2013 was significant because it represented the culmination of a heightened level of compliance needs, particularly with a new level of pressure on assessing data breaches.  The biggest questions are when some of the major transitions ahead, such as the ICD-10 implementation of new diagnostic coding requirements or the compliance program mandate, are going to take effect.
5) What litigation issues are currently occurring most frequently?
For our firm, we are getting inundated with reimbursement disputes between providers and payors.  Fraud and abuse investigations and lawsuits against providers are also surging.

6) What measures can be implemented to help reduce costs but maximise efficiency in the delivery of healthcare?
More integration of physicians, hospitals, and other care settings – long-term care facilities, community clinics, are a key to maintaining quality and driving efficiency while reducing costs.  In the private market, utilising technology, such as mobile health applications, are a major driver of lower cost, more efficient care.
7) Is the time right for healthcare to adopt cloud computing?
The shift to the cloud is happening, slowly.  It will continue as healthcare providers gain more confidence that the cloud is a secure and reliable place to maintain and manage data.  We are seeing a growing trend of truly HIPAA compliant cloud providers.

8) Can you outline the main challenges and opportunities currently facing traditional healthcare and emerging new market participants?
There is an “ocean” of need for healthcare goods and services, but a major challenge is figuring out pricing to meet the demand and maintaining profitability in a world of shrinking reimbursement and growing pressure to demonstrate improved outcomes and quality.  Figuring out what patients are willing to pay for out of pocket is a major challenge ahead.  The opportunities are abundant for providers who can navigate these challenges towards lower cost, convenience – and quality-oriented resources.
9) Is the healthcare system ready for wide-scale use of personalised medicines?
Personalised medicines have been growing in popularity in the private marketplace, particularly from integrative providers and in the weight loss marketplace.  I am sceptical of whether the insurers and other third party payors will fund personalised medicines in a meaningful way, but the consumer demand is enormous and this is something people will pay for.
10) It is predicted that by 2015, branded and unbranded generics are expected to be growing faster than patent protected and non-protected branded drugs in Latin America.  How has the so-called ‘patent cliff’ affected healthcare in your jurisdiction?
The availability of lower cost generics is a boon to patients and a problem for the pharmaceutical companies.  Personally, I think this trend is positive for consumer access to lower cost health resources.  I suspect that Pharma will manage this challenge and weather the storm.
11) What key trends do you expect to see over the coming year and in an ideal world what would you like to see implemented or changed?
We see a trend of growth this year in companies that are poised to meet the new demands for low cost services and products, from safety-net providers like Federally Qualified Healthcare Centers to mental health provider networks that can service patients with new access to coverage.  We also see continuing growth in companies that are successful in delivering services that are popular with consumers with lower cost, higher convenience, and high quality.
What would we like to see in an ideal world?  Healthcare is tough because it raises difficult questions about who should pay for what.  There isn’t an unlimited amount of resources, and there are difficult questions about what should be allocated on a market basis and what should be allocated on a communitarian bass.  On one side of the spectrum, there’s a need for a safety net to take care of everyone at least some of the time, but on the other end, there’s a need for a market-based approach that delivers the services that people are willing to pay for.  The ideal system, in my view, would include have a leaner safety net and a more robust private market place.