Joshua Marker

Joshua Marker, ’09

Corporate Counsel, Practice Fusion

 
 
 
 
 
 
 
 
 
 
 
 


Do you consider yourself to be a health lawyer? And what does it mean to you to be a “health lawyer”?

Health lawyer is not the way I describe myself. I consider myself more of a product attorney or a privacy attorney with a focus on the healthcare sector. I provide privacy and regulatory compliance advice to our product teams, which could be our technology, data, or commercial teams. I think attorneys are often more appropriately defined by their skill set.

With that said, healthcare is one of those industries where you need to have a healthcare law background to practice, because it is one of the most complicated and highly regulated industries, and that makes it hard to just dip your toe in it.

It is hard to define, however, what exactly a health care attorney is. Someone who is a generalist for a hospital could be considered a health care attorney. Maybe they are in-house at the hospital, and they handle regulatory compliance. I think a health lawyer is a ten-thousand-foot description that could mean any number of different types of attorneys.

In our legal department, we are all healthcare attorneys to some extent. Yet my role and my skills are very different from some of the skills of the other attorneys here. If you ask me to do another attorney job here, could I fake it? Sure, but every attorney has very different training and brings a very different skill set. For instance we have attorneys here whose background is in technology transactions. Tech-trans attorneys are very popular in the Bay Area, but a tech-trans attorney within the healthcare ecosystem has to understand a different type of nuance than a tech-trans attorney that works in another sector.

I might assist in looking at some provisions in an agreement, to see whether we think it is feasible or viable, or jump on a call with a partner to review key provisions, but I don’t generally draft contracts.

 

What was your impression of healthcare law back when you were a student at UC Hastings?

I didn’t have a huge impression of it. My first exposure to it was when I took Professor King’s Health Law class. I came out of it thinking health law is pretty complicated, particularly when you focus on Medicaid, Medicare or ERISA. That year also happened to be an election year and so we spent a lot of time looking at the various proposals from candidates to reform health care. It was the hot topic. That class gave me a broad exposure to health care.

When I transitioned to a law firm after graduating, I happened to be placed in their Life Science and Health Industry group. I was working as a litigator representing medical device companies, pharmaceutical companies and hospitals. This gave me an even broader exposure to different parts of the healthcare sector from the viewpoint of a litigator. From there, I expanded my skill set to also handle privacy work generally, as well as some HIPAA specific privacy work. It was my first couple of years in the law firm that gave me specialized knowledge of what it really meant to practice within the healthcare industry.

 

What most excites you about your work?

"Healthcare is truly at a tipping point, where, advancements are going to start coming very, very quickly."

We are at a really fascinating time in health care in this country. This sector has traditionally been one of the slowest to adopt new technology, not in the medical device sense, but in seeking to understand the delivery of healthcare. It is now being not so gently nudged by government policy out of the paper world. And we are starting to see cutting edge advancements in data that can drive better health, on a population level, to help inform best practices, as we switch from quantity to quality based metrics. Data is a tremendously powerful way to measure and understand the success of certain types of treatment. You also have things like precision medicine, where, as I understand it, doctors can pair your genetics with disease management, to create a targeted treatment protocol for you.

Health care is truly at a tipping point, where, advancements are going to start coming very, very quickly. It’s exciting to be in an industry as it adopts cutting edge technology. And, the country is going to start benefitting from the advancements. We are starting to enter into a golden age of healthcare where the patient is not relying on the doctor alone, to see, diagnose and remember, but technology and data are starting to assist with that relationship. The next twenty years are going to be fascinating.

Think about it. Go back ten or fifteen years when doctors charted in paper. If there is an outbreak, where one doctor has one patient who had this disease, maybe they will report it to the Public Health Registry, but maybe not. Two times over, another doctor sees a case of the same disease, and another doctor too, well, they just know that they saw it. If all of a sudden the data is being charted electronically, and their EHR is connected to the Public Health Registry, and this data is recorded, you can find outbreaks much, much faster and help stop them much faster. So, the capabilities of the intersection of healthcare and technology are maybe not limitless, but they are tremendous.  I think we are really at the tip of the iceberg right now.

 

What is the biggest challenge in your work?

With all the excitement and the opportunity, we also find that health care laws are not equipped for a high tech world. Even HIPAA, which is designed in part to promote the electronic interchange of data, was first drafted over twenty years ago, and the high-tech revisions were not drafted for a truly high-tech world. So there’s a lot of operating in grey areas and trying to structure a program to comply with the intent of the law. The language doesn’t really contemplate what is possible in every situation.

Because of the advent of technology-health care, you are now able to deliver health care on a nationwide scale. In telemedicine, I’m a patient and it’s 3:00 am and I’m concerned about whatever and I can now find a telemedicine appointment with a doctor who might be across the country. This is now technologically possible, but there are fifty states that have fifty different sets of rules about health care, and they have their local boards of pharmacy, their boards of medicine, and their boards of medical examiners. The health care regulatory structure is not set up to optimize the nationwide delivery of medicine. But now that you have cloud based EHR at places like Practice Fusion, we can touch doctors in 50 states.

Traditionally, if you were a doctor, you operated in one state, or maybe you lived on the border of two states, and you had clinics in both states. This means you needed to know the laws of one or maybe two states. Now, you need to be cognizant of the laws for fifty states. It is really complicated and tricky to navigate.

So, another big issue is interoperability, which is, the ability of one system to transmit health records with another system. So, if a patient goes to one hospital that uses one hospital based EHR, and then they go to a different hospital, with a different system, there needs to be a way for those records to be communicated clearly and for the doctors in the second location to benefit from the medical history in the first location. The goal is to have a truly interoperable healthcare ecosystem, but the industry needs to come around to the interoperability standard.

Another challenge is earning the trust of the users (providers and patients) that the system is both secure and a valuable tool.  If the current system stays in place, in a couple of years, doctors will be penalized if they don’t switch over to EHRs, and this has generated a lot of push back from the medical industry. So, even if it’s a policy that is driving adoption today, if people don’t like the system, and they don’t trust the system, you’re going to have a lot of trouble maintaining that adoption.

Some people are inherently distrustful: they are very protective of their privacy and they might object to their doctors charting electronically. So, it’s about establishing the trust in the system from both the privacy and security perspective.

Think about it like this, while some people don’t like the fact that social media or other consumer facing companies have all this data about them, but the overwhelming majority of consumers still use them. Even if those privacy conscious users don’t sign-up for an account, there are still a millions, or even billions, of people who will.  In health care, I don’t know the total number of doctors out there or hospitals, but it’s a much, much smaller universe of people with much more highly regulated data. So, if you want to play in that ecosystem, you have to take security and trust very seriously. Because if you don’t, either you won’t get a foot in the door, or you’ll be kicked back out of the door once it’s clear that you are playing fast and loose. That is why trust is really important.

Many other industries are far less constrained in their uses of data. Data is not as sensitive.  Whereas, in healthcare, or finance, it’s very, very different. You have in depth laws that tell you that you can do X with this data or Y with that data, or if you do this, you can’t do ABC.  So, you are much, much more constrained and it’s very complicated, and again, it is not necessarily drafted or optimized for a high tech world, so there’s really a lot of new laws, a lot of grey areas, and a lot of creative thinking.

 

What aspects of your training or background most inform the work you do now?

I think about the general familiarity with health care laws that I learned working in and around the sector for the greater part of the last six years. Also, in law school and in my legal jobs, I learned the basics of how to think like a lawyer. How to look at a scenario and even if you don’t know the specific law, or  if it is not even necessarily a straight legal issue, how to still look at it from a legal perspective, not from a business perspective or from a consumer perspective.

In law school everyone is concerned with trying to figure out what kind of lawyer they want to be, but law school is actually about learning how to think like a lawyer, even if you do a concentration. Because, as you start practicing in that area of law, you are going to realize that that concentration just scratches the surface of it. You are not really going to learn how to be a lawyer until you are practicing lawyer.

What law school will teach you is some vocabulary, and how to interpret a set of facts as a lawyer. Maybe people who do a lot of clinics have a little bit more experience when they finish law school, but the practice of law you learn by practicing law.

So, when I talk to current students, I say, don’t worry about the area of law. I mean, if your goal is be in health care, that’s great, but don’t worry about it now. Go get a job and learn how to be a lawyer first. Once you’ve learned how to be a lawyer, then find the opportunity to shift your practice to the area that you are interested in. But it’s not something I would stress about during or right out of law school.

I also have a background in sales which informs how I work with commercial people. I spent a year and a half at a job where you are picking up the phone calling C level executives of the companies, all day every day. So, that fear of talking to someone who has a VP title or a C-level title, went out of the window by doing sales for a number of years.

 

Tell me about a day in the life of you.

There is no typical day. I wear a lot of hats. As I said, I do a lot of product advice, product development, and privacy issues. I handle some disputes, review some marketing content, and deal with user issues. There is no one typical day. My work is really a reflection of what’s going on with the company on that day.

On some days I might be sitting at my desk drafting new policies. On other days I might be in meetings with our technology teams figuring out a way to operationalize a new product or feature in a compliant manner. It might be that a fire happens and we need to put it out. There are people here who have much more structured days where most of their day is spent either drafting or negotiating contracts, and meeting with business people about certain deals. For me there is no typical day.

This is a very cordial office. Nobody in the company has their own office. It’s an open floor plan. If you were to ask fifty people here, are we a healthcare company or a technology company, you would probably get a 50/50 split. We are right in that intersection, and so given that we are in technology and we are in the Bay area, you have a lot of that startup culture. We all get along. We have social events to bring people together. We have lunch together. I have friends across departments here and that’s one of my favorite things about the company. The culture here is fantastic.  It’s casual by nature. It’s friendly, but you expect everyone to do their job and to do it well.

 

Can you say a little bit about your work/life balance and how it might compare to some of your colleagues who work in other areas of the law?

My work day is usually from 8:30 until around 6:00. I would say that in terms of work/life, it’s obviously an improvement from big law, where I started. For the most part, nights and weekends are mine. Learning to be an in-house attorney, versus a big law attorney, was a transition that took six to twelve months.  It’s a very different way of thinking. But from a work/life perspective, it’s an improvement from big law.

If you work in an industry, where the company has been around for fifty or one hundred years, it is much more of a true 9-5 environment because you are not in establishing mode, rather you are maintaining what’s already happening. You can rely on work that’s been done for years before and you might tweak the process, tweak a template agreement, but you are not reinventing the wheel. Whereas at a newer company, you likely deal with a lot of first impressions. As a result I am somewhere between a 9-5 and traditional big law.

 

Now, more than ever, there is pressure on lawyers entering the workforce. Do you have any advice you would like to give the next generation of law students interested in healthcare law?

Honestly, don’t worry about your first job. Learn how to be a lawyer. When you start practicing a lot, you’ll probably realize that what you thought you liked isn’t necessarily what you do like.  Maybe you’ll start out being a litigator and you’ll realize that you don’t want to be a trial attorney.

There are a whole bunch of different types of litigators and a whole bunch of different types of transactional attorneys, so, just learn how to be an attorney first. See what you like. See what you don’t like. Look at the people around you, and see what career paths might be appealing to you. After you have two or three years under your belt, when you have some marketable skills, then worry about your next step.

For me, for example, I went to law school not having a clue what I would do, or where I wanted to be, or really what the practice of law entailed. I just knew I didn’t want to stay in sales. When I graduated from law school, I didn’t know what kind of attorney I wanted to be. I knew that I had a job. After a couple of years, I came to the decision that I thought working in-house, for a company in their legal department was probably where I saw myself.

I spent the next couple of years testing that assumption, because I couldn’t just pick up and get a job in the in-house department after two years of trying to expand my skills set. So, in my years at the firm, I honed my skills around privacy and got some exposure to what it’s like to negotiate a transaction. While plenty of students think they want to be an in-house attorney right out of law school, it is one in a hundred who lands that in-house job right out of law school, and it’s because they know somebody, or the company is a four-person company that can’t afford an experienced attorney. Don’t worry about it right after law school. If you want to work in health care, it doesn’t matter if you start in health care.  Develop the skills and then figure it out from there.

 


Interview by: 

Rachel Goodman, MFT

Senior Academic Program Coordinator with the UC Hastings Center for State and Local Government Law. She is also a psychotherapist in private practice in Berkeley, CA.