Redefining The Role Of The Hospital General Counsel

By Sean McBride, Barak D. Richman, and Carmel Shachar. Originally published in Health Affairs on September 27, 2024

The statutes, regulations, guidance, policy documents, and manuals that govern how hospitals and their employed physicians interface with the US government are multitudinous, complex, and oftentimes difficult to decipher. Hospital general counsels are typically tasked with translating the tomes issued by administrative agencies to ensure that their employers—the health system and its associated physician staff—understand their legal liabilities. However, significant problems can arise when hospital leadership and their attorneys overestimate regulatory risks and underappreciate the frequent ambiguities that exist in the legal rules that govern hospital administration and operations.

In recent years, the US Supreme Court has pushed back against the authority and reach of the administrative state, creating an opportunity for general counsels to help rebalance hospitals’ priorities. A spate of recent high-profile holdings has both made it more difficult for federal agencies to create regulations that bind hospitals and has reversed the significant deference that courts typically gave to agency interpretations of laws and regulations.

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