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— Denise D. Burke, Butler

Healthcare providers today must rely more heavily than ever before on their legal counsel in the course of everyday business — sometimes even in simply trying to get paid.

The ever-growing number of regulations placed on providers is making it increasingly more complicated — and therefore more expensive — to run profitable medical practices, said Denise D. Burke, a healthcare attorney in the Memphis, Tenn., office of Butler, Snow, O'Mara, Stevens & Cannada PLLC.

"A lot of our clients talk about how 20 years ago, they only needed a lawyer to do their wills," she said. "Now, it's so highly regulated that someone would hardly be able to both practice medicine and run the business at the same time."

In the 13 years since she stepped out of a career in hospital administration and into healthcare law, Burke said she's seen frustration grow among healthcare providers over the number of hoops they're made to jump through.

"We spend a fair amount of time just to help people know how to bill for their claims," she said. "We also spend a lot of time defending clients who are under some sort of investigation because they didn't bill something correctly — when the correct way is more complicated than it should be and the rules change more often than they should."

Today's law practice in healthcare regulation involves ensuring clients' compliance with a host of rules — the federal anti-kickback law dating from the early 1970s, referral restrictions under the Stark Laws of the early 1990s, and the emergency-care mandates from the Emergency Medical Treatment and Active Labor Act (EMTALA) of the mid-1980s. Most recently, providers have needed legal counsel on complying with the Health Insurance Portability and Accountability Act (HIPAA) and its privacy provisions.

Although the layers of federal regulations have been building over the past several decades, today there's a new frustration coming from a different direction — regulations from payers and their efforts to address rising healthcare costs by limiting payment for services.

"Increasingly, the payment regulations are the ones that are getting hard to understand or keep up with," Burke said. "For years, it was the referral relationships. Now, it seems you need to have a doctorate degree to file the claims."

From Burke's perspective, the challenge of rising healthcare costs in America is related to the amount of regulations placed on providers.

"We really do seem to be on a serious cycle in this country — on the verge of being truly unable to pay for the healthcare needs of the average citizen," she said. "Mississippi is particularly hard-hit, with Medicaid having funding issues and Katrina victims having expanded needs, and with many Katrina victims losing their insurance coverage."

At the same time, aging baby boomers are requiring more care, and advances in biotechnology and research — while positive — also add to the cost.

"Add to that the mind-numbingly complex regulations, and then the threat of civil or criminal penalties if they make mistakes in billing for their services, and there is no end in sight," Burke said. "The whole cost issue is a spiral that's going to continue."

Burke, who maintains her credentials as a registered health information management administrator, represents a range of clients from physicians to drug and device companies.


December 2006

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