Sarah Davis Sarah Davis is Clinical Assistant Professor of Law and Associate Director of the Center for Patient Partnerships at the University of Wisconsin where she teaches about patient advocacy, health policy and law, and professional ethics. Areas of interest include the emerging field of patient advocacy, healthcare teamwork/collaboration, an4 the responsiveness of the health care system to consumers' experiences. Ms. Davis also serves as co­ director of the JD-MPH dual degree program. Ms. Davis current research projects include building an e-archive of litera­ ture on health advocacy and a qualitative study of state-level Consumer As~ sistance Programs under health care reform. She also serves as a consultant to health care organizations engaging patients in improvement efforts. Pub­ lications include: "Educating for Health Advocacy in Settings of Higher Education" in Patient Advocacy for Health Care Quality: Strategies for Achieving Patient-Centered Care, Jones and Bartlett Publishers, Inc. and "Ten Strategies to Build Partnerships With Patients,'' Wisconsin Medical Journal. The Center for Patient Partnerships, an interdisciplinary center of the Schools of Law, Medicine and Public Health, Nursing and Pharmacy, offers experiential patient advocacy education to students from those disciplines and others. The curriculum focuses on health advocacy, patient-centered care, and health systems change, offering a 12-credit certificate in Consum­ er Health Advocacy. The Center also infuses patients' voices into health systems reform, offering a critical link to health consumers' experiences. Kathleen G. Noonan Kathleen G. Noonan, JD, is Clinical Associate Professor at the University of Wisconsin School of Law with a focus on health and government law. Before coming to Madison, she was founding Co-Director of PolicyLab, a cross-disciplinary research and policy center focused on children's health and well-being at the Research Institute of the Children's Hospital of Phila­ delphia. She was also Adjunct Faculty for the Robert Wood Johnson Clini­ cal Scholars Program at the University of Pennsylvania and taught in the Masters in Public Health program. Before joining CHOP, Kathleen spent seven years as a Senior Associate and Engagement Manager with Casey Strategic Consulting, the consulting ann of the Annie E. Casey Foundation. While at Casey, Kathleen led engagements around the country aimed to produce significant public system reforms for the benefit of vulnerable children, families, and communities. Earlier in her career, Kathleen was a practicing attorney at the Boston firm of Hill & Barlow. She served as a law clerk to United States District Judge Morris E. Lasker and has worked in public policy positions in New York City with the Citizens' Committee for Children ofNew York, Inc., and Bank Street College of Education. LAW IN ACTION: LEARNING HEALTH LAW THROUGH EXPERIENCE WITH STAKEHOLDERS AT THE PATIENT AND . , SYSTEM LEVELS Kathleen G. Noonan· & Sarah Davis•• I. INTRODUCTION ••.•..•.•...........•.•••..•••••...•••...••••...••••...••••...•..••..•...••.••• 559 II. THE CENTERFORPATIENrPARTNERSHIPS .................................... 561 III. THE GoVERNMENT AND LEGISLATIVE CLINIC ...••..••••••.•....•.••.•.•.... 564 IV. CONCLUSION ..•.••.....•••...•.•.....••••...••••..••••...••••..•••••...•••••..•..•....••..•... 566 I. INTRODUCTION One of the hardest things about teaching Health Law is conveying the breadth of, and interactions among, stakeholders involved in the field. Health ·Law is about the very private interaction between a patient and a doctor,' but it is also the study of how these interactions are authorized, paid for, and monitored through a complex and layered world of govern­ ment, nonprofit, and for.:.profit actors. Knowledge about the patient-doctor relationship alone will not prepare a law student to work effectively with any of the hundreds of stakeholders affected by health law, including medi­ cal professionals, insurance companies, hospitals, consumer groups, gov­ ernment agencies and, perhaps most important, patients. Students learn this best through a combination of classroom learning and experiential opportu­ nities with clients and other health and public health stakeholders. Two clinical programs at the University of Wisconsin Law School provide these experiences to students interested in health law, the Center for Patient Partnerships ("CPP") and the Government and Legislative Clinic ("GLC"). Each clinic has as a core goal teaching law students about health law in a real-world setting of competing stakeholder interests. The clients at CPP are patients or their caregivers. The GLC, on the other hand, engag­ es legislative and administrative clients. Together, the clinics embody the inherent tension of health care: the desire to meet the health-care needs of individuals, on one hand, versus the need to develop, regulate, and provide care with a systems- or population-level focus, on the other. This is also a tension the Patient Protection and Affordable Care Act ("PPACA") attempts to manage. The law promises new levels of account­ ability and quality at the health systems level through provisions related to- • Clinical Associate Professor at the University of Wisconsin Law School. •• Clinical Assistant Professor at the University of Wisconsin Law School. I. We use "doctor" as a proxy for any health care provider, e.g., nurse, physical ther­ apist, etc. 560 INDIANA HEALTH LAW REVIEW [Vol. 9:2 -among many other things-the creation of Accountable Care Organiza­ tions ("A COs"), bundled payment initiatives, and the creation of the Medi­ care Independent Payment Advisory Board. The hope is that health systems, through better tracking of the care they deliver and the outcomes that result :from that care, will become more efficient and effective at what they do. Simultaneously, the PPACA lauds a model of care that harkens back, in some respects, to the notion of a family doctor through the creation of "Patient-Centered Medical Homes." The "medical home" will track and be responsible for the care of its patients, and its patients will view their medical home as the hub of their health care, The PPACA also aspires for · patients to become more engaged in their care through the availability of their own medical records, the publication of quality information about their provider systems and doctors, and enhanced consumer assistance for insur­ ance selection and disputes. As a practical matter, the PPACA, creates a range of opportunities for students to engage these tensions on the ground, and to learn how, as law­ yers, to help manage them. In the case ofCPP, the PPACA provides new federal legal rights and protections-which students must first understand themselves in the context of state law and existing practice-and then con­ vey in an accessible way to patients. In the case of GLC, PP ACA presents important opportunities for students to assist public sector agencies in­ volved in health care to learn how to anticipate, interpret, and respond to the changes PPACA will (likely) bring. In the process, this also teaches stu­ dents an important lesson about the systemic role of lawyers: they are often the ground-level agents who implement change, strategically positioned to influence law in action. Knowledge of various stakeholder interests and the range of policy choices is critical for these attorneys, and students interfac­ ing with these agencies witness these tensions play out in real time. Both the Center for Patient Partnerships and the Government and Leg­ islative Clinic build on an approach to legal education at the University of Wisconsin that has been characterized as "law in action."2 The hallmark of this approach to teaching is that students learn not only legal rules, but also why those rules evolved to address social concerns, and how those rules operate in the real world. More than this, the clinics attempt to continue one of the longest and deepest traditions surrounding the University of Wis­ consin, the Wisconsin Idea, a principle that the University should improve people's lives in the state beyond the classroom and that citizens ofthe state have rich wisdom to share with students.3 Students in both clinics benefit immensely :from the experiences of the patients and lawyers they serve. The clinical models we describe below are· novel in certain important 2. Our Law-in-Action Tradition, UNIV. OF WIS. LAW SCH., http://www.law.wisc.edu/ law-in-action! (last updated July 29, 2011). 3. Gwen Drury, The Wisconsin Idea: The Vision that Made Wisconsin Famous (2011), http://www.ls.wisc.edu/documents/wi-idea-history-intro-surnmary-essay.pdf. 2012] LEARNING HEAL 1H LAW TIIROUGH STAKEHOLDERS 561 respects, advancing our understanding of what legal clinics can and should do, and the role they can (and should) play in the law school. CPP is one of a handful of truly interdisciplinary clinics, engaging the services of (and creating opportunities for) not merely law students but also medical, phar­ macy, public affairs, public health, and even non-traditional students ... ln­ terdisciplinarity" is an increasingly important part of the missions of many law schools, 4 and CPP shows how this can be accomplished in clinics. GLC shares other innovative aspects with CPP: both clinics break funda­ mentally from the litigation-centered, adversarial model that has formed the important core of clinical legal education for many years; they have also attracted many joint degree students who want to apply their legal training in interdisciplinary settings. 5 Legal academics increasingly recognize that legal education can and should play an important part in the legislative and regulatory process. GLC brings that alive for students. The following de­ scribes each of our clinics in greater detail. TI. THE CENTER FOR PATIENT PARTNERSHIPS CPP was founded in 200 l on the belief that to reform our health care system, future professionals-lawyers, health care providers, policy mak­ ers, and others-need to truly understand both the patient perspective and the value of partnership in health care.6 Following her own diagnosis and treatment for ovarian cancer, Martha "Meg" Gaines, a UW-Madison clini­ cal law professor transformed her own self-advocacy experience into a model for consumer-centered patient advocacy. Along with colleagues from the schools of medicine and nursing, and a professional health and human services public administrator/ she recognized the potential of advo­ cacy training, drawing on the pedagogy of clinical legal training and the 4. Margaret Martin Barry et al., Clinical Education for This Millennium: The Third Wave, 7 CLINICAL L. REv. 1, 65-67 (2000) ("Newer lawyering models, which shift the focus from vindication of legal rights and injuries to creative problem solving, stress the need to transcend doctrinal areas, legal fora. and professional disciplines to fully address client prob­ lems."). 5. See RoY T. STUCKEY, BEST PRACITCES FOR LEGAL EDUCATION: A VISION AND A RoAD MAP (Clinical Legal Educ. Ass'n ed., 2007), available at http://law.sc.edu/faculty/ stuckeylbest_practiceslbest _practices-full. pdf. 6. See Jo Harkness, Patient Involvement: A Vital Principle for Patient-centered Health Care, 41 WORLD HOSPS. & HEALTH SERVS. 12, no. 2, 2005, at 12-16, 40-43; see also MOIRA STEWART ET AL., PATIENT-CENTERED MEDfC!NE: TRANSFORMING THE CLINICAL METHOD (2d ed. 2003); JODY HEYMANN, EQUAL PAR'INERS: A PHYSICIAN'S CALL FOR A NEW SPIRIT OF MEDICINE ( 1995). 7. Co-founders include: Barbara Bowers, RN, PhD, Professor ofNursing and Associ­ ate Dean for Research, and Linda Reivitz, MAB, Faculty Associate, University of Wisconsin School of Nursing; Julian C. Schink, MD, Professor of Medicine, Northwestern University School of Medicine; Helene Nelson, Secretary, Wisconsin Department of Health & Social Services; Timothy Harrington, MD, Department of Medicine University of Wisconsin­ School of Medicine and Public Health. 562 INDIANA HEALTH LAW REVIEW [Vol. 9:2 experiential emphasis of health professional and social work training to in­ troduce students to our health care system through the patient's eyes. Three full-time and three part-time faculty, working with other volun­ teer professionals, supervise students and provide expertise in law, medi­ cine, nursing, health policy, public affairs, industrial engineering, and education. CPP does not litigate or directly participate in any court pro­ ceedings; students participate in informal and formal negotiations (such as internal insurance appeals) and support clients in Social Security Disability Insurance applications and reconsiderations. Students also learn preventa­ tive and problem-solving skills-with a specific emphasis on holistic solu­ tions. Students· spend at least twelve hours a week during their first semester and are encouraged to make a two-semester commitment continu­ ing for at least four, but usually eight to twelve hours. Professional and graduate students who study at CPP provide free ad­ vocacy services for clients with serious chronic or life-threatening illness­ es.8 While students are learning patient advocacy, they gain cross-cutting competencies and skills applicable to lawyering and other health care pro­ fessions.9 The CPP model includes four principal educational objectives: (1) kinesthetic understanding of how consumers and other stakeholders ex­ perience the health care system; (2) skills for effective patient-centered ad­ vocacy and problem-solving;10 (3) a commitment to life-long learning11 and reflective practice;12 and (4) tools to work collaboratively across disci­ plines.13 CPP placed particular emphasis on problem solving, underscoring 8. CPP's advocacy model focuses on helping clients build their own skills and capac­ ity to navigate the health care system and triake decisions based on their values and priori­ ties. CPP clients include patients or spouses, adult children, parents, life partners, neighbors, and others caring for critically ill loved ones. Effective consumer-centered patient advoeacy supports patients as they make informed decisions, access necessary health care, and build . strong partnerships with providers. See generally Advocacy Services: Our Patient Advocacy Services, CTR. FOR PATIENT P'sHIPS: UNIV. OF WIS.-MADISON, http://www.patientpartner sbips.orgladvocacy/our-setvices/overview/ (last visited Apr. 12, 2012). . 9. Stuckey, supra note 3, at 19 (citing WILUAM M. SULLIVAN, Amm CoLBY, JUDITH WELCH WEGNER, LLOYD BOND, & LEE S. SJRJLMAN, EDUCATING LAWYERS: PREPARATION · FOR THE PROFESSION OF LAw 2 (2007)) ("The core goal of legal education should be the same as all other forms of professional education, which [is] •.. 'to initiate novice practitioners to think, to perform. and to conduct themselves (that, is to act morally and ethically) like pro­ .fessionals.'") See generally Marsha Hurst et al., Educating/or Health Advocacy in Settings of Higher Education, in PATIENT ADVOCACY FOR HEALTH CARE QuALITY: STRATEGIES FOR ACHIEVING PATIENT-CENTERED CARE 481, 488 (JoAnne L. Earp et al. eds., 2008) {describ­ ing CPP's "complementary'' educational model). 10. Stuckey, supra note 3, at 279 ("The second year should continue helping students develop legal problem-solving expertise, self efficacy, and self-reflection and lifelong learn­ ing skills. j. 11. See generally Stuckey, supra note 3, at 6; Richard K. Neumann, Jr., Donald Schon, the Reflective Practitioner, and the Comparative Failures Of Legal Education, 6 CLINICAL L. REv. 401, 404-05 {2000); DoNALD A. SCHON, EDUCATING THE REFLECTIVE PRACTIDONER: TOWARD A NEW DESIGN FOR TEACHING AND LEARNING IN THE PROFESSIONS (1987). 12. Stuckey, supra note 3, at 196. 13. Marsha M. Mansfield & Louise G. Trubek, New Roles to Solve Old Problems: 2012] LEARNING HEALTH LAW THROUGH STAKEHOLDERS 563 that clients' presentation of a problem may not be the most accurate or use­ ful framing; problems often have a creative/non-legal resolution; as profes­ sionals, our inherent judgments and bias about clients or situations can deeply influence our efficacy; and, working in teams or running scenarios by colleagues-informally or in formal "case staffings" can dramatically increase the quality of advocacy. Rather than expecting students to become well-versed in all substan­ tive areas of health law and advocacy, students learn how to identify issues and research key substantive knowledge grounded in the facts relevant to their client. Students also learn to assess client needs, help clients mobilize resources, and support client decision-making. Students learn core advoca­ cy (and clierit services) skills, including how to empathize, listen actively, respect client confidentiality, communicate effectively with clients and oth­ er professionals, help clients and families build their own capacity as advo­ cates, maintain professional ethics, interview clients effectively, and manage complex cases. Students quickly learn about the stakeholder tensions inherent in the health care system from their clients' experiences. Common tensions in­ clude seemingly competing interests: of employer (purchaser of health in­ surance; responsible for work productivity) and employee (sick client); providers (facing time pressures) and patients (wanting to participate in shared-decision making); or insurers (shareholder pressures to increase profits) and hospitals (need for timely and predictable compensation). Led by the model of "partnership," whenever possible, CPP teaches students to approach such tensions by seeking common ground. For example, for the employer and employee, what value can the employee add while benefiting from the flexibility afforded by intermittent leave under Family Medical Leave Act protections? For the provider and patient, how can the patient arrive for an appointment prepared and activated to use their time together efficiently and effectively, and how can the provider effectively harness technology and teamwork to meet the patient's needs? · Learning from client experiences, CPP also promotes consumer­ centered changes in local, regional and national health systems and policies. For example, CPP collaborated with local stakeholders to secure state legis­ lation to prohibit insurance companies from discontinuing routine coverage when Wisconsin patients enter clinical trials. In another example, discus­ sions with a local insurance company motivated them to inform beneficiar­ ies more clearly about the date coverage begins. All students participate in a significant "advocacy project" assignment where they are encouraged to explore advocacy beyond their work with individual clients. In all "case to cause" activities, students learn first-hand the power of effectively harness­ ing patient anecdotes and capturing trends in individual experience to ad- Lawyering for Ordinary People in Today's Context, 56 N.Y.L. SCH. L. REv. 367, 371-77 (20 11) (describing new roles for lawyers, including the role of collaborator). 564 INDIANA HEALTH LAW REVIEW [Vol. 9:2 vance changes that benefit many. The Center for Patient Partnerships' patient advocacy clinical also forms the core of a twelve-credit certificate in Consumer Health Advocacy, which requires a course on systemic models of health advocacy, related elective coursework, and a capstone project. Completion of the certificate demonstrates a concentration in health advocacy and is notated on each stu­ dent's transcript. In addition to the clinical opportunities, law students and others can participate in CPP's scholarship and policy initiatives. Current­ ly, a dual-degree law/public affairs student serves as a project assistant on a qualitative research project on state consumer assistance programs ("CAPs"). The PPACA provided a one-year grant for states to develop or expand existing CAPs to serve consumers with inquiries and disputes re- . garding state regulated health insurance. That student is learning about the tremendous state-by-state diversity in: program structure, legal and regula­ tory authority, and resources for consumers. A major theme of the CAPs story is stakeholder tensions: federal government (PPACA) aspirations verses individual state visions; administrative agency authority verses legis­ lative agendas; and consumer needs verses system resources. III. THE GOVERNMENT AND LEGISLATIVE CLINIC The Government and Legislative Law Clinic ("GLC") was launched in Spring 2010 to provide law students with the unique opportunity to ob­ serve and participate in the many facets of governmental law, policy, and the legislative or agency process, including health and public health. (GLC was launched by Kathleen Noonan, one of the authors, who came to UW · from the Children's Hospital of Philadelphia, where she co-founded Pol­ icyLab, a children's health policy research center). Working under the dual supervision of clinical faculty and clients in legislative and administrative agency settings, students gain first-hand experience working with govern­ ment clients on legal issues with policy significance. The GLC requires a minimum commitment of sixteen hours each week, divided between twelve hours of client work (often on site), and four hours divided among time dedicated to a clinical seminar, one-on-one. supervision sessions and class ·assignments. From a skills perspective, the clinic focuses on the development of ''policy lawyering" competencies, meaning the development of new laws, regulations, and policies rather than on litigation, for which there are al­ ready numerous clinical offerings. The GLC emphasizes several core themes with students: (1) the work of a government and legislative policy lawyer typically involves policy choices, which means that there is often not a ''right" answer but many possible answers based on the criteria most important to your client (e.g., values, efficiency, cost, evidence); (2) the work of a government and legislative policy lawyer requires attention to the interests and needs of multiple constituencies (e.g., voters, agency leader- 2012] LEARNING HEALTH LAW THROUGH STAKEHOLDERS 565 ship; the governor's office, etc.); and (3) the work of a· government and leg­ islative lawyer involves particular constraints that may not exist in a typical lawyer-client relationship due to the government context. Health law, as noted above, featured prominently in the GLC from the start. Student interest in health experiences was strong, in part, because of passage of the PPACA and-perhaps more importantly-because of in­ creased awareness about the number of post-graduation jobs in the health sector. The clinic engages health•related clients based on both student in­ terest and our own diligence about client needs. We call this combination our "match process" in which we screen potential clients and students to find an appropriate fit. For example, we knew that our state health and in­ surance departments would be working in some capacity on health care so contacted them about potential projects before we had students identified for the work. Students come to the clinic seeking a wide variety of health-related experiences. Some are interested in public health, biotech or health ser­ vices, others with compliance or information technology. Others find the area of health care and health law of interest, but need help translating their interest into a job. We do not require that students have taken Introduction to Health Law to work with our health clients, though it helps when they have done so. Where students do not have a background in health or health law, clinical faculty insure students have some introductory reading materi­ als before they begin their client work. The "match" process is a major part of the work of the GLC. For ex­ ample, a joint degree JD-MPH student was matched with a former state health Secretary leading an effort related to health care bundled payment reform because of the student's interest in health system design and quanti­ tative methods. Another JD-MPH was matched with a state health depart­ ment project related to developing new obesity prevention policies with local schools. Both "matches" involved students with non-traditional legal interests: each wanted to leverage their legal training in a health care con­ text but also apply their public health training and especially social science methods. The GLC matching process allowed us to identify settings in which their knowledge of law was important but the skills used on the ground involved the quantitative methods they learned in their public health programs. Confidentiality and non-partisanship are critical to the success of a clinic like GLC. The first assignment for every GLC student is adapting a form confidentiality agreement with their client. Like other clinics, the GLC is set up so that the students and clinical faculty are, for all intents and purpose, a small ftrm with all the responsibilities and confidentiality protec­ tions typically associated with that. The GLC and clients sign confidentiali­ ty agreements each semester that allow students to discuss in the weekly seminar the issues they working on with their client. On occasion, students are involved in matters that require them to refrain from discussing their 566 INDIANA HEALTH LAW REVIEW [Vol. 9:2 work in the seminar. We assure clients that we will accommodate this type of discretion and create firewalls, as necessary, to provide clients with the comfort they need to work with us. Because some of the work is highly confidential and/or controversial, there are times when a client requests a student not share information until it is also available to the public. In addition to assignments that students receive from GLC clients, the clinic itself includes skills training applicable to the range of government and legislative clients. The students' first assignment is to understand the purpose and authority of their client. For example, a student working with the Department of Health would be required to come to the seminar pre­ pared to report whether its clients' powers are derived from the state consti­ tution or state statutes, or both. It is also critical that students understand the operations of their clients: how many staff they employ, the organiza­ tional structure, and budget. A second assignment involves asking students to consider all of the stakeholders connected to their client. The purpose of this is to help students understand that government clients have multiple constituencies to whom they answer and various interests to weigh in decid­ ing how to solve a problem. This is especially important for students to understand where they are dealing with a problem that has no "right" legal answer. Given the number of GLC students involved in health care, we have also used a stakeholder exercise related to the implementation of the PPACA. For this project, students are given the names of five organiza­ tions involved in health care. The list includes provider groups, trade asso­ . ciation, labor organizations, advocacy groups, etc. Each student is given a diverse group of stakeholders to reflect the various and complex positions about the PPACA. The assignment for the student is to consider how as General Counsel to the Health Department, Office for the Commissioner of Insurance or the Governor's Office they can provide advice given the vari­ ous opinions of stakeholders, including those unrepresented. This type of assignment helps students understand the difficulty of balancing the various interest groups concerned with health and public health issues. N. CONCLUSION While focusing primarily at different levels of influence-micro (the patient and interpersonal interactions) for CPP and macro (organizational and policy) for GLC both clinics teach about the various roles of key healthcare stakeholders and offer critical competencies for 21st Century lawyers working in the healthcare sector. Our approaches and pedagogy complement each other----offering Wisconsin students interested in health law experiential education covering the full spectrum of legal roles. Both programs strive to ensure that future health lawyers will work effectively with diverse stakeholders at the individual patient and system leveL