Attorney shares expertise in field of health care law
By Sheila Pursglove
In 1984, attorney Brian Kaser left a large law practice for a boutique firm working in the Certificate of Need program — a tiny niche of health care.
“At that time, health care was a pretty narrow field, without a lot of lawyers in it,” he notes. “The State Bar didn’t have a Health Law Section - that got under way in 1989 or so, when the Health Care ‘Committee,’ appointed by the president of the bar, recommended the field be recognized as a section. I guess I was one of the original members of the section, since I was on the committee at the time.”
Kaser — an expert in the field of health care and nonprofit law — joined the adjunct faculty at Michigan State University College of Law in 2002, as a way to enhance his own professional life.
Recently named as a visiting professor, this fall he will present two previously taught courses — a general health care law survey and a seminar on Health Care Fraud and Abuse, for which he produced his own digital casebook. He will develop two new courses for the spring term — one focused on health care business and reimbursement, the other a student-directed seminar, in which students will have the opportunity for in-depth research and writing, fulfilling the college’s upper level writing requirement.
“I was well taught in law school, and I strive to give my students some of the same benefit. I like MSU law because each year’s class is more accomplished than the one before it — it’s getting harder and harder to look smarter than the students.”
A graduate of Western Michigan University, Kaser’s own law school experience was at Boston University School of Law, where he earned his J.D. with honors before joining what he terms “the family trade.” Two siblings are lawyers, as was his mother, who joined the bar at age 60.
“I saw law as a field that fit my abilities,” he says. “So instead of following the usual advice to do what I loved, I learned to love what I did. It worked. Today, though, that could be a risky bet.”
After clerking for the chief judge of the Michigan Court of Appeals and stints at the large and boutique firms, Kaser eventually became a shareholder and leader of the health care group at Lansing’s Foster, Swift, Collins and Smith before hanging out a solo shingle as Brian Kaser, PLC in Lansing in 2007.
When he set out to build his own clientele, Kaser found most specialized practitioners were serving the larger hospital systems.
“Few were interested in nonprofit elder care providers, and many of those potential clients didn’t recognize that growing financial and regulatory pressures really required counsel with experience in that field,” he says.
For many years his practice has focused on the needs of three groups of clients: elder service organizations, health care providers of all types, and nonprofit corporations and trusts.
“Many of my early long term care clients were nonprofits and that remains a very important component of my practice base today,” he says.
Rated “AV” in the Martindale-Hubbell Law Directory, named under “Best Lawyers in America” and rated in the first tier in health care by U.S. News and World Report, Kaser recently joined his practice with that of Rolf Goffman Martin Lang of Cleveland, a boutique firm serving the same client types.
“The field has grown so complex that health care is breaking down into sub-specialties. The Rolf organization is a longstanding leader in my area,” he explains. “Their depth and expertise will really enhance the value I can deliver to clients.”
Health care is not a free market, Kaser notes.
“Even nonprofit missions in health care are not truly self-directed, the way they were many years ago. That’s the tradeoff for the increased access and funding for health care that followed on the creation of Medicare and Medicaid in the 1960s.”
Still, despite the commercialization of health care over many years, he believes that very strong currents of professionalism and mission remain among those who provide health care, both proprietary and charitable.
“I think it’s a good use of one’s abilities to support those positive forces. This is especially so, I think, as the financial systems that will be developed under health reform impose their models of what health care should be on practitioners who may feel otherwise.”
Most of Kaser’s cases have had government as the adversary, since government regulates and pays for a great deal of his clients’ services.
“I’ve developed a collegial working relationship with the Office of the Attorney General, which is pretty gratifying from a professional standpoint,” he says.
One particularly memorable case was brought on behalf of a client hospital whose patient could not be discharged to home care because his two insurers were pointing at each other as primarily liable. Home care agencies were unwilling to accept the patient under that cloud, and his needs were quite expensive. The patient spent more than a year in the hospital, with bills mounting every day, while the case worked itself out.
“At one point, my client told me that one of the insurers had paid a couple of hundred thousand dollars on the account, despite the litigation,” Kaser recalls. “I called counsel for that defendant to tell him about the payment. The legal department of his client had not been aware that it had paid. The event made me realize how much money moves around in the health care system. That alone shows why health care is an important national issue. I didn’t give the money back.”
In another case, he represented a hospital that had been denied a Certificate of Need to install a CT scanner.
“Earlier CON cases had settled, because the state recognized the weakness of its statute, which was virtually dictated by federal Medicare law. In my case, the state decided to resist,” he explains. “We secured a reversal from the administrative law judge. It was the first CON case in which the state had gone to trial on those issues and lost. In 1988, the law was repaired, and the program became more orderly and predictable. Those of us who worked in the field before 1988 can see our old cases in the new law.”
The author of a chapter on attorney/client privilege in the “Health Care Compliance Manual,” (a publication of the Lexis/Nexis group), Kaser is a frequent speaker at the American Health Lawyers Association’s annual Long Term Care and the Law conference, speaking on nursing home payment and resident rights issues and, most recently, legal ethics and corporate compliance. He also has presented to Leading Age, Leading Age Michigan, Health Care Association of Michigan, and Michigan Health & Hospital Association.
Kaser has served on state and national bar and professional committees in the area of health care and elder services, including on the financing cabinet of the American Association of Homes and Services for the Aging (now Leading Age), an association of nonprofit providers of elder services. The cabinet developed policy positions on financing elder care over the next 50 years.
“That was a huge learning experience,” he says. “I was the only lawyer on the cabinet. I had to row pretty hard to keep up with the economists.”
According to Kaser, professional and trade association committees are very valuable uses of a lawyer’s time.
“Professional associations motivate me to work up to the level of my colleagues, most of whom I admire very much. Trade and business associations help me to learn my clients’ business, which is crucial for a lawyer. Both those activities are valuable to my teaching. Law is an intellectual craft, so all kinds of knowledge enhance both my teaching and practice.”
Four years on the board of the Care Free Medical Clinic, a safety net clinic in Lansing, taught Kaser how complicated individual health needs can be.
“Physical, mental and social well-being all depend on each other, and where one is injured, it’s likely that all will need help to get the person back on track. Poor people have barriers to good health that most of us never experience.”