Friday, April 29, 2016

Negotiating for Health: the Harvard Negotiation Law Review 2016 Symposium

The 2016 Harvard Negotiation Law Review Symposium, Negotiating for Health: The Role of Negotiation and Dispute Resolution in Healthcare, took place on February 27, 2016 at Harvard Law School.

The event kicked off with opening remarks by Professor Bob Bordone, who highlighted the unprecedented challenges that the healthcare industry is facing today as it transforms with major attempts at reform and cost containment. These challenges will require the engagement of numerous stakeholders in complex negotiations, and it is with that in mind that we attempt to discuss, reflect on, and learn from the field of interpersonal negotiation and how it can be used to improve these healthcare negotiations.

Dean Martha Minow then shared her view on the various dichotomies existing in healthcare, including dichotomies between health and healthcare, between scarcity and boundless opportunity, and between national, local, and global. Negotiation, however, offers a means by which we can find paths through these challenges these dichotomies create.

The first panel, “Balancing Incentives for Innovation with Affordable Drug Prices: Understanding Interests,” attempted to dive right into the way negotiation can address these challenges. Featuring Jamie Love and Professor Mark Wu, and moderated by Elaine Lin Hering, the panel highlighted numerous obstacles to finding this balance between innovation and affordable prices. Mr. Love, Director of Knowledge Ecology International, a non-profit organization works to find new solutions to balance innovation with access to affordable care, suggested that other countries and investors are not doing enough to foster and fund innovation. Professor Wu, an expert in international trade and international economic law and formerly Director for Intellectual Property in the Office of the U.S. Trade Representative, explained that that companies want profit, and numerous multilevel factors go into this, including pricing, corporate social responsibility, and negotiations with the board and executives. Professor Wu also reminded the audience of a major constraint in pricing, which is the board’s fiduciary duty to shareholders, a part of which entails maximizing profits. Mr. Love proposed the potential need for a “nuclear option”- doing away with the entire current model for financing drug development and drug prices by the pharmaceutical company and starting anew. He recommends rewards based on innovation that provides benefits.

The second panel, “Mergers & Acquisitions: Unique Challenges for Healthcare Institutions,” was moderated by Jeff Weiss, Founding Partner and Leader of the Alliance Practice and Healthcare Group at Vantage Partners and President-Elect of Lesley University. The panel featured the expert perspectives of Michele Garvin, Senior Vice President and General Counsel of Boston Children’s Hospital, Brent Henry, Vice President and General Counsel of Partners HealthCare, Deborah Joelson, Senior Vice President of Strategic Services at Tufts Medical Center, and Stephen M. Weiner, Member and Chair of the Health Law Practice Group at Mintz Levin. One major issue brought out in how merger negotiations fail is that, even though everything else may be aligned, institutions have missions and cultures that do not line up. This culture can be at the hospital level or sublevels of the institution. Mr. Henry described how the hospital setting is unique with numerous, varied stakeholders affected, while Ms. Garvin communicated that negotiations in healthcare M&A are unique because of the effects on the community and patient. For those considering negotiations in healthcare mergers and acquisitions, the panel had some advice: address leadership and governance upfront, come with a long-term vision, try to build on prior strong relationships, know your walkaway points ahead of time, do your due diligence, and don’t forget to give doctors a seat at the table!

The next panel was “Negotiating Resource Allocation in Times of Crisis: The Ebola Case Study” and was moderated by our own Professor Bob Bordone. Negotiations surrounding epidemics and health crises bring about their own sets of challenges, as myriad physicians, agencies, public and private organizations, governments, other stakeholders from around the world need to come together to communicate and strategize on a plan of action faced with immense time pressure and ethical considerations as well as many innocent lives potentially on the line. Dr. Melvin Kohn, Medical Director of Adult Vaccines at Merck, that facilitation and management, two things often underscored in the Harvard Negotiation and Mediation Clinical Program, are essential. Despite how critical the role of coordination is to manage the process, Dr. Kohn opined that it is often overlooked. Eric McNulty, Director of Research and Professional Programs of the National Preparedness Leadership Initiative at the Harvard School of Public Health, and Dr. Eric Goralnick, Medical Director of Emergency Preparedness at Brigham and Women’s Hospital, both stressed that trust is vital to effective crisis negotiations, and establishing and maintaining trust is itself a negotiation. Mr. McNulty shared that public trust was what was missing during the Ebola crisis, while Dr. Goralnick explained that times of crisis are when trust most easily falls apart and so it is critical to get all stakeholders together and really listen. It also helps to build off of existing personal relationships and build channels of communication. In addition to fostering trust, negotiations are also helped by tailoring the solutions to the current conditions on the ground related to this crisis, instead of limiting yourselves to past experiences. Interestingly, the panelists also shared that the sense of urgency around the crisis can also be an advantage if it is channeled to bring people to the table and get them focused on the addressing the issue at hand.

The final panel of the day was “Navigating Challenges through Collaboration in a Post- Affordable Care Act Environment,” moderated by Dr. Amy Lischko, Associate Professor of Public Health and Community Medicine at Tufts University School of Medicine and formerly the Commissioner of Health Care Finance and Policy and the Director of Health Care Policy under Governor Mitt Romney. In addition to Dr. Lischko’s expertise, the panel featured Wendy Mariner, Professor of Health Law  at Boston University School of Public Health, Professor of Law at Boston University School of Law, Professor at Boston University School of Medicine, W. Thomas McGough, Jr., Chief Legal Officer of the University of Pittsburgh Medical Center, and Timothy Westmoreland, Professor at Georgetown University Law Center and Counsel to the Subcommittee on Health and the Environment in the U.S. House of Representatives from 1979 through 1995, each bringing their own expertise and perspectives on the impact of ACA and the role of interpersonal negotiation in moving forward.

The panel began with a discussion of where they see a role for future negotiations around the ACA. While Mr. McGough believed the role for negotiation right now is limited, Ms. Mariner stated that the rules and regulations for new insurance plans will need to be negotiated, and Mr. Westmoreland stated that negotiations may be particularly important in the area of Medicaid expansion. The discussion moved into the role of big data in these negotiations and the fact that there needs to be a common set of data that actually address and provide answers to the questions that need to be asked. Mr. McGough also brought it back to a theme in Panel 3: trust. Tons of data are out there, but trust is not always present, yet trust is key. Ms. Mariner also emphasized that there are frequently information asymmetries that inhibit effective communication. Negotiations in some regions may also be inhibited by a lack of competition, where a dominant player can overpower negotiations, such as negotiations around how to bring down costs. Another, perhaps obvious, yet very real, barrier to effective communication and negotiations around the ACA is politics. Political standoffs have prevented necessary government stakeholders from coming to the table, but this has also erected implementation barriers on the ground, as institutions fear that the laws may change as political power shifts.

The symposium closed with the keynote speech by Dr. Leonard Marcus, Director of the Program for Health Care Negotiation and Conflict Resolution at the Harvard T.H. Chan School of Public Health. Dr. Marcus tied together the themes present in the day’s panels and what they mean for healthcare negotiations. One theme brought out is that healthcare negotiations don’t necessarily have clear rules, and when they do, they may not make sense.

Dr. Marcus also explained that one of the key questions in healthcare negotiations is did we get a good deal, and we are currently getting a lot of bad deals—paying more for worse outcomes relative to other countries. As a country, we have high expectations about the care we will receive, yet we will have shortage of providers. There are competing tensions between health, cure, and cost, and there will need to be a countrywide negotiation of what we value and how much we want to spend to get there.

The discussions led by the symposium’s four panels and keynote speaker demonstrated that effective negotiations are an essential component of making progress and achieving better outcomes in the field of healthcare. Building off of personal relationships, establishing trust, and understanding different stakeholders’ interests and cultures are all critical, and taking the time to account for these elements will improve the likelihood of achieving success.

Thank you again to our amazing panelists, moderators, and speakers and to all those who helped plan, organize, and put on this tremendous event, including our generous sponsors: The Harvard Negotiation & Mediation Clinical Program, The Program on Negotiation at Harvard Law School, DOS Grant Fund, Sullivan & Cromwell LLP, Debevoise & Plimpton LLP, Triad Consulting Group, and The Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.

By Shaun Hughes ’17 and Katie Kelly ’17. Shaun and Katie are the 2016 HNLR Symposium Chairs.