Lawyers offer tactics for choosing counsel

Legal assistance helps to advance psychology?s agenda.

By Cherie Jones, JD

Sometimes associations find themselves with a legal problem that may have implications for the field of psychology as a whole.

A recent example teamed APA and the New Jersey Psychological Association (NJPA) with an attorney to challenge inappropriate practices by a major behavioral managed heatlh-care organization. Newark attorney William Maderer, with Saiber, Schlesinger, Satz & Goldesten, LLC, shared his role in this 'test case' model during the 1998 State Leadership Conference session 'Effective models and strategies for seeking outside legal counsel.' The session was chaired by Shirley Ann Higuchi, assistant executive director for legal and regulatory affairs in the APA Practice Directorate.

The workshop was designed to assist state and provincial psychological association (SPPA) leaders with selecting and retaining outside legal counsel. Three successful models were highlighted:

? The 'Test case model,' where an SPPA wishes to assist its membership in bringing a legal case that may have broader implications for psychologists.

? The 'Special projects model,' where the SPPA can team-up with an attorney for a legal project to address a specific problem area of the law such as managed care.

? The 'General counsel model,' where trained legal counsel can advocate and handle general inquiries for the SPPA, including licensure issues, lobbying efforts, managed-care legal problems and hospital privileges.

Given the substantial changes in the health-care industry and the adverse impact of managed care on the practice of psychology, SPPA are increasingly finding that having some form of legal assistance can not only advance psychology?s agenda but can help SPPA?s address membership concerns cost-efficiently and effectively.

Test case model

The test case concept was pioneered by Russ Newman PhD, JD, APA executive director for professional practice. In order to find a suitable test case, the Practice Directorate?s Office of Managed Care sifts through hundreds of calls it reviews each year from both state association leaders and individual members to ferret out fact patterns that may warrant legal action on behalf of practitioners and their patients. Practice Directorate staff then consults and works with the appropriate state association to assist in developing the legal issues and to choose appropriate legal counsel.

In New Jersey, this process resulted in the lawsuit filed by Maderer on behalf of NJPA and seven individual psychologists to test whether an HMO violated New Jersey public policy by terminating providers from their panel for no other reason than their efforts to advocate for necessary treatment for their patients. In an interim victory for psychologists, the lawsuit survived a motion for summary judgment?to dismiss the case outright, filed by the HMO.

In addition to seeking justice for the terminated psychologists, the association hopes to set a legal precedent by influencing the way health care is delivered in managed-care settings.

NJPA and Maderer launched their relationship in 1995, when the association paid him a flat fee to analyze their options. Once the association decided to go ahead with the case, it started paying him a discounted hourly fee with caps for various stages of the legal process. Maderer does not expect a trial until 1999.

Whether they?re seeking legal counsel for a protracted legal battle like this one or just for everyday problems, Maderer emphasized that associations shouldn?t forget what they have to offer lawyers.

'Don?t underestimate the cards you?re holding,' he said, explaining that associations? prestige or potential for referrals may make even discounted rates attractive to lawyers. 'Negotiate and remember there?s never a set fee for anything.'

Special projects model

Project FAIR (Focused Advocacy for Insurance Reform) was presented by Glenn Karr, as an example of the special projects model. Karr, who began his career as in-house counsel to insurance companies, now spends one day a week in pro bono work with the Ohio Psychological Association?s (OPA) to help in its efforts to reform the managed care system.

Karr?s commitment to volunteer activity arises from his gratitude to psychotherapy for helping him deal with a major childhood trauma which haunted him into adulthood. Karr went through five years of extensive psychology to recover.

'I wouldn?t be here today if I hadn?t had that care,' says Karr, now an attorney in private practice in Columbus. 'I had indemnity coverage. What?s happening now scares me.'

The project?s funding comes from contributions and grants from APA and other groups.

The project paid off in its first month, when a local insurance company violated its contract by cutting fees without notifying providers. Karr and OPA?s president visited the company and talked things over. The result of that negotiation?and the implicit threat of litigation?$400,000 in reimbursements, a sense of empowerment and an improved relationship with the company.

General counsel model

Of course, most state associations aren?t fortunate enough to have a lawyer volunteer his or her services. And most associations need legal help with day-to-day legal issues in addition to any special concerns they have. Associations seeking affordable, dependable access to legal assistance should choose the general counsel model, said William Koenig, MD, JD, of Koenig, Caprile & Berk in Sacramento, California. Koenig serves as general counsel to the California Psychological Association (CPA).

In exchange for a fixed monthly fee plus expenses, Koenig does everything from assessing the association?s bylaws to reviewing its contracts, from drafting legislation to writing memos designed to alert CPA members to issues affecting them. Of course, the arrangement doesn?t give the association 24-hour access seven days a week, Koenig emphasized. According to the terms of their agreement, CPA and Koenig must negotiate separate fees for projects that threaten to take too much of his time. And in complicated antitrust or tax cases, Koenig limits his involvement to helping the association find more specialized legal assistance and providing case oversight. 'A general counsel isn?t one-stop shopping,' he explained. ' A general counsel is first-stop shopping. I perform triage for legal issues.'

When choosing a general counsel, associations should look for someone who specializes in health care, said Koenig, explaining that the high degree of regulation makes health care different from other industries. The counsel should have substantial expertise but represent a firm small enough to encourage informal advising. And the counsel should be interested in more than the bottom line, said Koenig, noting that he offers CPA a substantial discount.

'Conference programs like this are important for educating our state leaders on legal issues that impact the practice of psychology and their patients,' said Higuchi. 'Moreover, selecting and retaining the right lawyer for a particular project can significantly influence whether an association?s legal agenda succeeds or fails.'