Q&A with Availity’s Senior Counsel on Information Sharing and the Influence of Covid-19
As part of our focus to highlight the confluence of health and legal news, we offer interviews with insider advisors from the life sciences and other healthcare companies. The first of these interviews shows Erich Drotleff, Senior Counsel for Availity. As the largest health information network in the country, connecting health plans, providers and patients, Availity enables over 4 billion clinical, administrative and financial transactions annually.
At Availity, Drotleff is responsible for negotiating profitable agreements, promoting business growth and profitability, minimizing business risk, ensuring compliance with laws, and managing employees who are not lawyers. In a phone interview with MedCity News, he discussed the role of data sharing in public health, its move to an internal role, and the benefits of bonsai gardening.
(This interview has been edited for length and clarity.)
What is the number one problem facing health and life sciences lawyers today, and how would you approach it?
I would say share information.
There are so many regulations on data rights, property, privacy and protection that I don’t believe we can take advantage of revolutionary advances in healthcare, such as advanced data analytics using AI and machine learning, until health data can be universally shared.
I know there are serious concerns about privacy and its uses that raise many ethical questions. And let’s not forget how valuable health data is to hackers. The health sector is one of the largest industries with uninterrupted data breaches. For health outcomes to really move forward, however, we need to be able to build a national “data lake” based on input from everyone involved.
Although the previous administration Steps taken to reduce the blocking of information are still totally inadequate to enable meaningful use of and access to necessary health data. Despite the changes introduced by ONC and CMS, there are still too many roadblocks.
The FDA just held a meeting to discuss how data can be managed in the development of artificial intelligence for medical devices. The fact is, you can’t develop anything if everyone sticks to their data and says, “You can’t do anything with it unless it falls exactly under those three lists under this contract. “
I understand this perspective from a corporate protection standpoint. And then I get the ethical dilemma from a patient’s point of view: “It’s not your data, it’s my data, it’s about me and my body.” But we have to take care of it. There is a lot of discussion about what to do but no solutions yet. By the time we solve this problem, there will be so many health innovations that will simply go untapped.
What trends in the legal industry have most influenced your practice?
When the market collapsed in 2008, I worked for a small company for the first year. I knew I wanted to go inside when I started thinking about law school and becoming a lawyer as a second career.
However, I didn’t know if there were many in-house counseling centers available for someone like me as I previously acted as a health plan negotiator.
The 2008 market crash really shook the legal industry. In law firms, bloodshed was at an all-time high in the second and third through fifth years. Unemployed BigLaw employees were everywhere.
More and more companies started their legal work in-house and less and less outsourced it once they realized how much they could save on the bottom line by providing full-time in-house advice.
I think my first non-legal work experience combined with a law degree and a law firm was attractive to many employers looking to increase their legal workforce.
Which COVID-19-related change do you think will most affect legal practice in health and life sciences going forward?
I think telemedicine and remote patient monitoring will continue to grow in both interest and popularity.
As a result, however, a significant number of problems will arise. Patient confidentiality, data protection and data rights, increasing use and development of apps, consumer-oriented health care and concierge services in health care. And of course the question of medical approval in all countries – which state laws on medical approval apply?
What is your proudest legal achievement (to speak about)?
I would say my biggest achievement since graduating from law school and practicing law was my first time passing the California State Bar!
During my professional career in autumn 2014, I worked for a newly acquired healthcare facility whose parent company had no legal management in the healthcare sector. My greatest success story was being a one-man legal department, building the subsidiary to align with the parent company’s business rules while ensuring that the organization ran in accordance with required health regulations.
You needed a good healthcare attorney with business acumen who understood the landscape for the healthcare industry, and I was proud to be that person.
What do you wish you could teach the younger you about health and life science law before you went inside?
This question is a little difficult to answer because from the moment I decided to prepare to apply for a law degree, I knew I wanted to be an in-house attorney and bypass the law firm trail.
Unfortunately, most in-house positions require some law firm experience to have a well-rounded in-house candidate. So I told the younger me to be patient and realize that all good things take time. Even if that means working in a law firm first before getting that first in-house position.
After working as a health plan contract manager for years, working for a company taught me a better perspective on balancing and managing business risk.
In the BigLaw practice, you do everything possible to ensure that your customer has little to no risk when completing a transaction. However, if you keep this mentality as an in-house attorney, you will bring the company to a standstill. In a firm, I developed the necessary understanding that every transaction carries a specific risk and applied this to my existing business experience to precisely quantify that risk, assess the risk and advise management on the way forward.
There are few business situations that are simply an obvious yes or no from a risk analysis perspective.
In between, you can get high returns and high risk, but the likelihood of a bad result is slim. In these cases, you can balance these perspectives and let the organization know that this is a risk and that the impact can be significant but the likelihood is small.
In my previous career, risk wasn’t on my radar – my marching orders were to negotiate the contracts, close the deals, and move on.
My experience at BigLaw gave me the perspective, “Oh, if this happens the resulting outcome could be severe.” Most traditional BigLaw lawyers are very risk averse and incorporate this mentality into the organization as an internal lawyer.
In the past, the legal department of an organization was often referred to as the “Department for No.” Sometimes they get a bad rap, but I think this is evolving.
If you could snap your fingers and let the public understand one thing about health and life sciences, what would it be?
It should be understandable for people to say, “Don’t let the government do my health care.” While the two largest health plans in the US are Medicare and Medicaid, these government programs are managed by private health plans like Humana, Anthem, and United. When I hear people say they don’t want a nationalized, government-run, single-payer healthcare system, I have to laugh. They don’t know how Medicare and Medicaid are operated.
What three titles would your Zoom bookshelf be if you were interviewed by CNN?
The three titles would be: “Tribal Leadership” by Dave Logan and John King, Philip Roth’s “The Plot Against America” and “Cultivating and Growing Bonsai” because I am a gardener and find it incredibly therapeutic.
“Tribal Leadership” offers good prospects for high-performing and low-performing organizations. The authors discuss the different levels of tribal leadership. It’s all about “me”, then it’s about “us”, and at the higher levels of organizational leadership it doesn’t matter who “wins”.
“The Plot Against America” was turned into a miniseries on HBO, but I read the book first and it made a huge impact on me. It’s fiction, but it attracts many events in the 1940s related to the persecution of Jews.
In the novel, Charles Lindbergh defeats the FDR and serves as a stooge to protect the US from Germany in the 1930s and 40s. Given what has happened over the past four years and the government has given white supremacists a free pass, it is an interesting analogy to read this fiction through real events and see how it has developed.
Bonsai falls in love with my passion for gardening and plants. You just need to have the space to keep them out. If I hadn’t become a lawyer, I would probably have owned and operated a small cafe, bookstore, garden shop, and kindergarten.
Photo: DrAfter123, Getty Images