Your Excellent Healthcare Legal Adventure: Learning and Growing From Your Legal Strategy Session


Hello. This is Michael H. Cohen, founder of Cohen Healthcare Law Group.

We are so glad that you are about to do a legal strategy session with us.

I wanted to take a few moments to tell you what a legal strategy session is and what it is not, because I think it’ll help to clear up some common misconceptions about what it means to have a legal and regulatory review of your healthcare, health, or wellness business.

First of all, a legal strategy session is a discrete block of time in which you get an opportunity to go over some of the fundamentals of your healthcare business model, business plan, or existing business, and your plans for growth and your vision. In some sense, it is part discovery call because we ask a lot of questions. It is also an opportunity for you to ask questions and for us to have a conversation to talk about risk mitigation, a visioning in which we identify some of the key legal obstacles, regulatory issues, and risks that may stand in your way.

We want you to walk away with at least one powerful “a-ha” moment when something crystallizes for you. It might crystallize during the call or it might crystallize sometime after the call, but the point is that you get an insight that you are really missing and needing to start filling in the puzzle pieces to get along the path.

Now, let me tell you what a legal strategy session is not, because some people really have the wrong expectations. We are not going to be able to chart the entire course of what you’re going to need in a legal or regulatory sense for your business. First of all, we may not have all of the answers, and they may not even have the answers. If there were an answer, I would suggest that you just go and look it up and you would find the answer somewhere. We call that googling; we have a verb for it. But when you go to a lawyer, you are not necessarily looking for the answer. It is not something that you can look up.

So the first misconception is “I want the answer; I want all the answers,” and that is just not possible. I think you are going to discover that you will find excellent lawyers and law firms who know the law, and then will apply the law to your situation and give you a really good, strong, robust, honest analysis and tell you how you are positioned and what you can do to improve your position. The first misconception is that the answer is something you just pull out of a hat – that you just go to the right book and the answer will tumble right out. That is why we call it a legal strategy session.

The second misconception is that the legal strategy session is the be-all and end-all. It is not. It is a starting point where you begin your journey on the road.

The third misconception is that you are going to get the answer or the results that you want. You might, but you might not. When you go to the dentist for a checkup, the dentist at the end of the checkup can identify whether you have cavities and how deep they are because the dentist takes a little instrument and does a probe. It only hurts for a second, but at the end of it the dentist knows where the vulnerabilities are and what the treatment plan is going to be. You would not go to the dentist and say, “I want you to tell me before you examine my teeth that everything’s going to be okay,” or, “I want you to assure me that I’ll have no cavities, otherwise I won’t pay for my dental visit.” You would never demand a result before you even go in for the diagnostic testing, and yet, surprisingly, this is what some people ask or demand of their legal counsel.

We invite you to appreciate that your relationship with your lawyer is a sacred one. We hold it in trust. We have an ethical fiduciary duty to you. We have the legal duty of zealous representation, ethical advocacy, honesty, and many similar duties, and we are there to fulfill those duties and to be of service to you. We also have a revenue model and we understand that you have a revenue model, and we are entrepreneurial like you. In that sense, we are also aligned with you to help you produce a great business result.

Another misconception people have is that they can be 100% compliant. It might be possible, but it might not be. Compliance is really a process. To use the example of HIPAA compliance, HIPAA compliance requires reasonable steps and reasonable due diligence scaled to the organization. It does not mean that you are necessarily going to plug all gaps, to have no holes, to be a thousand, million, billion, gazillion percent, hatches-battened-down so that no water or no droplet can ever leak through. I think that is unrealistic. Some people have more of an incentive to be more compliant than others, and penalties can differ depending on what the violation can be. It’s good to be apprised of what the stakes are, to get a better read, to get a better focus. It is important to have a sense of cost.

I have been pondering why we have many, many hundreds of wonderful clients–satisfied clients–who rave about our work. We have enduring clients and we have long-standing relationships with them.

I have also been puzzled by the fact that sometimes we end up chasing people just to connect with them after having done a little bit of work, and I wonder why that is. I have come to conclude recently that it is because there is an understandable natural defensiveness around exploring some of these legal and regulatory issues, because they really do highlight vulnerabilities in people’s business plans and planning and flawed thinking. In some ways the rules are not fair, they do not always make sense. They are not always pleasant to hear, and people like to live in a kind of denial about things that are unpleasant. People like to be cushioned from the fact that many of the rules are negative, that if you read the rules, literally the penalties are draconian and the consequences very consequential. So people resist, for example, or they will say, “Well, I don’t have the money,” or, “I don’t have a budget,” or, “How much does it cost?

We all know that cost is the most frequent objection. The reality is that if you are building a multi-million dollar business and you hope and intend to operate across states and you intend to build a big brand, then spending a modest amount of money on foundational legal counsel and ongoing legal and regulatory advice is not unreasonable. In fact, it is a cost of doing business and usually far less than the cost already spent on marketing, accounting, branding, sales, and many other aspects of the business.

So price is never the issue and we do not compete on price and we do not race to the bottom on price, but people often cite cost as their main objection. An objection is merely, in sales terminology, the buyers’ excuse for not doing what is really good and healthy for them, and it is the job of the sales department to provide information that allows the buyer to understand what the healthy choice is. So we provide really insightful and impassioned, articulate service in the form of legal counsel.

We love our clients, we appreciate them, and we wish that more people would take advantage of the opportunity to take a deep dive into ways that they can strategically handle the very complex legal and regulatory environment. Let’s just face it, it is a challenging environment. That is a reality. Rather than being in denial about it and pushing away the messenger and deferring, for example, needed care for that tooth, would not the wise strategy be to pursue very important advice to create a solid foundation upon which millions and millions of dollars of revenue can then ideally be accumulated? Think about it.

We look forward to working with you soon.

Michael H. Cohen

Cohen Healthcare Law Group

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