The following is an excerpt from Practice Perspectives: Vault's Guide to Legal Practice Areas.
Heather M. O’Shea, Partner—Health Care & Life Sciences
Heather O’Shea handles civil litigation and regulatory and compliance matters involving the health care industry. She has represented health care providers, pharmaceutical and device manufacturers, and other health care entities for more than 20 years. Her matters involve fraud and abuse enforcement pertaining to the False Claims Act, the Anti-Kickback Statute, Stark Law, and Medicare and Medicaid reimbursement. Heather represents clients on regulatory and compliance matters involving Medicare and Medicaid, fraud and abuse laws, reimbursement regulations, the Physician Payments Sunshine Act (Open Payments), clinical research compliance, and FDA regulations. She has significant experience conducting internal investigations, representing clients in voluntary disclosures, and counseling clients on refunds to Medicare. Heather also has extensive experience advising clients on compliance program development and implementation, as well as conducting assessments of existing compliance programs.
Heather earned her undergraduate degree from Texas Christian University, her LL.M. in Health Law from Loyola University Chicago, and her law degree from Loyola University New Orleans.
Describe your practice area and what it entails.
I defend health care and life sciences clients in investigations and litigation arising under the federal False Claims Act and various state analogs. My practice includes defending clients in government investigations, conducting internal investigations, and providing proactive regulatory and compliance advice.
What types of clients do you represent?
We represent clients throughout the health care industry, from academic medical centers and health systems to drug and device manufacturers, community hospitals and suppliers, and post-acute providers. One of the things I enjoy so much about my practice is being exposed to so many different aspects of the health care delivery system.
What types of cases/deals do you work on?
Much of my work is on civil cases involving allegations of fraud: Someone—either the government or a whistleblower—has accused a health care entity of committing Medicare or Medicaid fraud. Because there are so many statutes and regulations governing the provision of health care services, any number of potential issues can come up.
The accusations may relate to the delivery of services, the act of billing, relationships between parties, vendor relationships, or a whole host of other possible situations. Health care is complex. Not all mistakes are fraudulent, and it is our job to try to demonstrate that to the government.
On the flip side, I have the opportunity to advise clients on practices and procedures that promote compliance with the various rules to help our clients avoid an investigation or litigation.
How did you choose this practice area?
One of the first projects I was staffed on when I joined Jones Day was a government investigation of a nationwide post-acute provider. The case provided an opportunity to have direct contact with the client. It focused on complex regulatory and compliance issues, and it involved an investigative piece, trying to determine what happened at the client level. It also involved advocacy, working to show the government why the client’s actions were not in violation of the False Claims Act. I was hooked.
What is a typical day like and/or what are some common tasks you perform?
My schedule is really dependent upon the cases I am working on and the stage they are in. If we are still in the investigative stage, my day may be filled with fact finding, including conducting witness interviews, reviewing company documents, and corresponding with the government. If we are in active litigation, we may be involved in motions practice, discovery efforts, depositions, or work with experts.
And because my practice also includes regulatory and compliance advice, I may be analyzing an arrangement, the relevant statutes, regulations, agency guidance, and case law, in addition to conferring with clients on our advice.
What training, classes, experience, or skills development would you recommend to someone who wishes to enter your practice area?
Many law schools now offer classes relating to health law that can provide a good introduction to the complex health care industry, including outlining key programs, such as Medicare.
Another class I wish I had taken was administrative law. There are any number of agencies at the federal and state levels that develop and enact laws affecting the health care industry. Understanding the procedures that are required to enact laws has come in very handy in a number of cases.
Finally, as in the practice of law generally, legal writing is critical. Any classes, seminars, or training exercises students or young lawyers can take to further develop their writing will serve them well.
What is the most challenging aspect of practicing in this area?
The sheer volume of laws, regulations, guidance, and rules affecting participants in the health care industry—particularly those in a federal health care program like Medicare or Medicaid—can be overwhelming. Health care also seems to have its own language at times. So the learning curve can seem somewhat challenging when you are starting out. However, it is a fascinating area and one that I found very rewarding.
What do you like best about your practice area?
Health care is an incredibly complex industry, but one that has a profound impact on all of our lives. I find it rewarding to learn not just about the legal aspects, but also operational, strategic, clinical, and scientific components of the delivery of care. Another really rewarding part of my practice is the clients. Not only do they have incredibly talented in-house teams, but generally they are just really great people to work with and have a level of dedication that is admirable.
What is unique about your practice area at your firm?
At Jones Day, we speak frequently about the collaborative nature of how we practice. We are able to draw upon different lawyers in different practices, depending on specific issues that come up in a matter, all with the goal of providing the best outcome for our client.
My practice is a perfect example of how that collaboration benefits the client. If the investigation came about because of a disgruntled employee, I can call on my colleagues in the Labor & Employment practice. If the matter has a potential criminal component to the investigation—and sometimes it does—I consult with our internal White Collar Defense team.
Another resource that makes our firm and my practice stand out is the interaction we have with our Issues & Appeals practice. We have a dedicated group of appellate lawyers whom we frequently work with when our cases are in active litigation. They assist not just with the briefing, but also in thinking about novel legal arguments to make in favor of our client’s positions and how to appropriately preserve the record should an appeal ever become necessary.
What are some typical tasks that a junior lawyer would perform in this practice area?
This area affords a variety of opportunities. Of course, there is managing discovery and document review, but because so many of our cases begin with a subpoena, junior attorneys assist in the investigation—witness interviews, fact finding, research, and analysis of what happened or did not happen.
As a case develops, if the matter turns into active litigation, there are opportunities for drafting motions, participating in deposition preparation, and possibly taking depositions as well.
Our case teams, like our practices in general, are collaborative in nature. Lawyers at all levels are encouraged to share ideas, all with the goal of providing the best possible outcome for our clients.