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Consultant Lawyer or Going In-House: An Interview With Kenneth White

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Are you thinking about going in-house as an attorney? Join Darshan Kulkarni as he talks with healthcare lawyer Kenneth White about the process of going in-house, and why transitioning to an in-house position may be worth considering. Plus, how working in-house may give you more predictable hours.

Darshan: Hey, Kenny.

Kenneth: How's it going?

Narrator: This is the DarshanTalks Podcast. Before this week's podcast, Consultant Lawyer or Going In-House, an interview with Kenneth White, Darshan will introduce this episode with the recap for the week of Thursday, June 25th, 2020.

Darshan: So this week has been, as expected, a bit of a continuation from last week. However, what we're starting to see is the government is now taking a lot of the lax regulations that it had and it's now starting to enforce a lot of them. We're starting to ensure that not only are products available for people, but that they actually meet the standards that these products should have, the medical products should have. So for example, the Department of Justice has charged a manufacturer for exporting misbranded masks. At the same time, there was a writeup recently about stem cell companies selling hope for COVID-19 and that also has been deemed to be problematic because there are no proven therapies for the treatment of COVID-19. There was also, as you know, hydroxychloroquine and there was a question about whether it could be effective or not. And the FDA came out and revoked the emergency use authorization for hydroxychloroquine and basically said that it doesn't meet the standards that are necessary.

The other interesting things happening this week were that the EMA came out and it's talking about providing free orphan drug advising to academia. So if you're working with orphan disease states, this becomes really quite interesting, especially if you are the early phases and you're in academic institutions. There is some interest right now, a New Jersey doctor came out and sued the ... Reached out again, the NIH and USPTO under FOIA and accused them of unfairly denying his requests for records over DNA. So if you look at the newsletter, you might find some more interesting notes about that. What I thought was really interesting was that the FDA also took this opportunity to look at its pilot program on patient reported outcomes from cancer clinical trials and it's putting some of that information out. So stay tuned, that could be relatively game changing as we continue.

This was also the week in which, if you are a general counsel, the U.S. Supreme Court ruled that the Title VII protections extend to LGBTQ employees. So you may want to update your employee handbook and the like as you continue. If you have any questions about how any of these apply to you, feel free to reach out, obviously you can reach me at DarshanTalks, but I like to use these opportunities to talk about some of the other issues that are popping up.

This was also a week in which I actually saw my first personal protective equipment with a company brand on it. And is that the future of healthcare where people walk around with drugs with company logos on it? And you might say, "Well, don't you already have the drug company's logo on it?" Yeah, I guess that's part of it, but I'm not sure how I feel necessarily about another company's logo on your drugs or your medical devices. Maybe things will change, maybe I will change, but I just thought that was interesting. If you think that that is unusual, if that's a step too far, feel free to leave me a message, tweet me on Twitter, and I'd love to hear from you.

Narrator: This is the DarshanTalks Podcast. Regulatory guy, irregular podcast, with host Darshan Kulkarni. You can find the show on Twitter @darshantalks or the show's website at darshantalks.com.

Darshan: Hey everyone. Welcome again to another episode of DarshanTalks. We have a really special guest, we have Kenneth White. And I've known Kenny for almost a decade at this point and one of my favorite memories with Kenny was enjoying a really cool meal in San Diego because we'd gone to eat pop-ups [inaudible 00:04:11] Kenny, from one of those top chef restaurants, which was super fun. But Kenny-

Kenneth: That was a good meal.

Darshan: It was a good meal. Kenny is one of those people who I enjoy talking to because I feel like I get a different viewpoint from him. It's not an echo chamber viewpoint, which I really enjoy. And I also enjoy the fact that he's coming at it from a payor perspective and we don't always hear from the perspective of payors and insurance companies. Kenny, would you like to introduce yourself?

Kenneth: Sure. My name is Kenneth White, but I go by Kenny, as you've been calling me. I am a Healthcare Lawyer by trade. I practiced in private practice for 28 years representing managed care entities, health insurance companies, hospitals, and physicians as well, basically in everything that they could find themselves entangled in, both in Florida and nationally. And then I left the private practice of law six years ago and joined Willis Towers Watson as a subject matter expert/consultant and I am the National Managed Care Practice Leader for Willis Towers Watson.

Did I lose you?

Darshan: No, I'm still here. Sorry, I [crosstalk 00:05:44] some tech difficulties.

Kenneth: Okay. I was just afraid my dog would bark in the background.

Darshan: No, you were good. For some reason, every so often my technologies messes around with me. But Kenny, you said a couple of things that I really want to explore. I want to talk a little bit about your decision to go in-house. It's one of those things that every lawyer dreams of and every lawyer doesn't know how to make it happen, but when the opportunity presents itself, you kind of go "Well, should I?" So I'd like to hear more about your thoughts about how that happened. I also want to hear a little bit more about business insurance, like in COVID. You are the insurance guy, you're the guy who gets this stuff. And right now everyone talks about how they are just happy that they got business continuity insurance in some way and hopefully that insurance will pick up the cost of COVID and the lost profits and things will be hunky-dory. And I'd love to get some feedback on that.

So let's start with the first one, just the going in-house part of it and how did that opportunity present itself? Why did you decide that this was something worth exploring? And I'm not sure it's just a lawyer question, it's anyone who works as a consultant and is saying, "You know what, I think that the variability of this is painful." How did you make the decision?

Kenneth: So you could ask my mother, the blessed saint that she is, what I was going to be when I was four or five years old and she would have told you I was going to be a lawyer.

Darshan: Whoa.

Kenneth: I always wanted to be a lawyer. That is really the only thing I really ever wanted to be and that was the path I took. And when I got into law school, I wanted to be a trial lawyer, that's what I saw as lawyers, not the people who sat behind a desk. And believe me, I am very, very thankful that there are tax attorneys out there. You wouldn't want me doing your will, you wouldn't want me messing with your divorce, I was a trial attorney. But being a trial attorney has a high burnout factor because you were always on. And after 28 years of doing it, I felt the call of doing something else in order to make sure that I lived past 60, which I will be here very, very, very, very shortly. And I wanted to go-

Darshan: [crosstalk 00:08:18].

Kenneth: No, no, this year. But I was looking for something that I could combine both an educational process, a service process, and still maintain the law side of things. And the North American CFO for Willis Towers Watson ... Willis Towers Watson is a global company, we have a hundred offices in 140 countries, there are 45,000 employees. But they were looking for someone to have an industry specialization in the payor side of healthcare. And it gave me the opportunity to both educate internally and externally clients, prospects, and inside the company. It gave me an opportunity to work with sales and service teams to acquire new clients and keep the clients that we have and provide an ongoing consultation service to them. And it allowed me the freedom to be a subject matter consultant inside the industry so that I could speak. I speak nationally and internationally on issues related to managed care and insurance.

I'm very prolific on LinkedIn, that kind of stuff. And I would have never had those opportunities working in private practice. One, I couldn't bill for them, but two, there was just so much of a time constraint on what you could do because everything was just the next thing coming up in the courtroom. So that's why I swapped over and I have enjoyed every minute of it.

Darshan: But now you talk about the highs of being a quote unquote, real lawyer, it's one of those things you always hear when you're in law school, right? So in pharmacy school, we used to say that the real pharmacists are the ones who work in the hospital. And I always felt bad because I worked in retail pharmacy and I felt guilty about it. Then I went to law school and the real lawyers are the ones who work in the courtroom and they're the ones presenting and advocating for your client. And I was never going to be that guy. I clerked for a federal court judge, but litigation's not my thing. I don't like the adversarial process, but there are people who do and people like you've lived a life like that. And my question for you is, do you miss those highs?

Kenneth: Yes.

Darshan: Huh.`

Kenneth: Short answer.

Darshan: Short answer. So how do you address that? Or do you just go snowboarding?

Kenneth: Remember I'm almost 60, so no snowboarding. Orthopedic surgeons, I have friends, I don't want to see them professionally. You substitute winning a new client. You substitute the high of having a very difficult placement at a time when one of your clients is really in need of a particular term or condition in their insurance policy that is not generally available and bringing that home to them. You celebrate when you are able to present to a thousand people at a conference in the Cayman Islands.

Darshan: That must be nice.

Kenneth: Yeah, sometimes. So in those circumstances, you have to substitute some of it. Obviously keeping time sheets, whether you're a transactional lawyer or anything else, is not your most favorite job. Those of us who really, really, really enjoy arguing with other people, that part you're always enjoying, but it is a difficult scenario to replace both the high and the low of fight in a two day trial or a six month trial. I think the longest [inaudible 00:12:34] I had was four months. But getting a jury verdict, I never liked mediation. It's a fabulous thing for litigation as a ... The ADR process is awesome. It must be part of the system, but as the lawyer who's geared up to win, compromise was never something that you really liked to do, but it's the right thing to do in many, many, many, many cases. When the verdict comes in, that's the thrill and there isn't any replacement for that. You latch on to other things.

Darshan: So do you think that you got better quality of life in exchange?

Kenneth: Yes.

Darshan: And what does quality of life mean to you?

Kenneth: You're old enough to remember the balsa wood airplanes, where you had the little rubber band and the propeller that you twisted.

Darshan: I didn't grow up in this country, but-

Kenneth: Come on, you've seen those.

Darshan: Yeah, I think I have actually.

Kenneth: Right, so they're little bitty handheld balsa wood airplanes that weigh next to nothing and they have this plastic propeller. And what makes them fly is there's a big rubber band that attaches to the back of the fuselage and the propeller. And you just twist the propeller to where you twist the rubber band up and when you let go, the propeller turns, you let the plane go, and it flies.

But if your life is always that twisted rubber band, sooner or later it snaps, it breaks. Balsa wood isn't the world's strongest material and rubber bands do break after a while. And when you're always tense, when you're always anxious, even when you get the release of having a jury verdict go your way, the relaxation period isn't very long because there's always the next thing that comes right after it.

So in this job, although it can be very stressful because there's tons of money involved and there's lots of people's livelihoods on the line with regard to risk management and how things are done inside entities and the people that manage the assets because business insurance in the managed care world is a asset management, asset preservation style risk transfer project. So it can be stressful, but the rubber band relaxes every now and then. So that you can enjoy your family, you can enjoy going to dinner without halfway through dinner, needing to get up and go get on the phone with somebody at 8:30 at night and ask them whether they've done X, Y, and Z, because it just popped into your head.

So there are certainly things. I suppose, if you're a race car driver and you get a thrill from driving 200 miles an hour in heavy traffic, you can't ... Although quite frankly, down here in South Florida, we see that often, you just go out to I-95 and you'll see it. You can't do that in city streets, you know? So you have to find something else to do that makes life worth living, because you're no longer driving on a closed track with race car drivers.

Darshan: Which really asks the question, I mean, you raised this concept of spending more time with family at a time of COVID where everyone's going, "Yeah, I've spent way too much time with my family." What is your-

Kenneth: Yeah, it's overrated.

Darshan: Do you think it's worth it or do you think you've had a lot of it now and now you're looking at some other ... I'm not saying like in terms of jobs, I'm talking in terms of new ways to explore? And does being in-house give you those opportunities?

Kenneth: I think it's both. One of the problems with working at home ... So I traveled a great deal both when I practiced law, because I had a national practice, and of course now I have a national practice, so I've traveled a lot. And my wife and I have probably seen each other more in the last three months than we did in the last 30 years. That's not really true, but I mean, in one pack of time-

Darshan: It feels like it, yeah.

Kenneth: ... [inaudible 00:17:21] accurate. Before COVID, I would be on the road 45% of the time and the other half, the other 55% of the time was split between about half the time working from my house and half the time working from my office in Fort Lauderdale. But my wife worked, or works, as well and she was at her job during the day, so we weren't always in the same house at the same time. And the problem is, is that you begin to associate home with work. Where home used to be the place that you left work to go to, you come home off the road, being away talking to clients or speaking at an engagement or working with the service team, you'd come home after three or four days on the road, you'd get home, "Ah, home." Pet the dog, cut the grass, whatever you do at home that makes life different than work.

The problem now is with everybody at home, there's no distinction between what is work and what is home. It's all sort of jumbled up together. And I think that the time together as a family, whether or not you have small children at home, or as in my case, I have an adult child who lives here, whether or not that time gives you some real quality time, which it has, but when it's day after day after day, then there is no separation between your work life and your home life. And I always liked that. That there was a separation. At least as an in-house lawyer, an in-house consultant, whatever you want to call me, in-house, most of the time I can leave work at work. When I was in private practice, you never left work, but in this job, I could leave work at work. Now you never leave work because work is home, home is work.

And I see the anxiety in a lot of people. I was speaking to somebody who works in a PBM, yesterday had lunch with him, good friend of mine. I believe you know him as well. And he was saying the same thing, we're all busy but there's no separation. There's no, not that any of us ever did this, but there's no nine to five.

Darshan: Right.

Kenneth: And I think that the anxiety level in certain homes, obviously if you don't have a good home life, if there is physical or emotional abuse, if there's drug addiction or alcoholism, or any of that, this kind of circumstance would make being at home all the time a living hell. There would be no escape. And I think that we've seen in the statistics, a significant increase in the number of behavioral health encounters via telehealth. And my guess is that over the next couple of months, as we come out of our shell, that you will see a significant rise in behavioral health. Whether it's eating disorders, whether or not it's substance abuse, or whether or not it's what most of us traditionally think of as mental health issues, whether or not those are really going to play a big part.

And for obviously in my world, the payor world, that's a big thing because they're watching the costs associated with all of this. And so they're trying to see where to put the eggs in, where to make sure that their networks are adequate, where can they tweak the system to increase access to those types of services that their members may need. Obviously, one, that's to provide care and treatment to their members, which is their obligation to do so, but the second part is being good corporate citizens, not to mention the PR is fabulous.

Darshan: So let me ask you this part of the question. Now, you mentioned having a young daughter, I know she's not a lawyer, I know she's not in the consulting world, but if she was, would you tell her to go in-house? Would you tell her to do work as a trial attorney? Or would you say, "Do what I did," which is both?

Kenneth: I would advocate both. And here's why, it's very difficult to consult in an industry where you do not have firsthand knowledge about what it is. I mean, if I was a mechanical engineer, if I only work theoretically with the concepts that went into designing, manufacturing, maintaining equipment, if that's all I ever did, then I'm going to lose out on a big chunk of what I probably need to know in order to do the best thing for my clients. Unless I had been on the front lines, I had designed and helped manufacture equipment, saw what needed to be done, saw people use it, used it myself, realize that this had to be over here and that should work this way, and this is a problem, and I need this. If you don't have that experience, you're not going to be able to provide a consulting service very well.

We have in our company, two very large claims groups. One is called RCCA, Risk Control and Claims Advocacy, which is primarily a property and casualty claims group. They provide a lot of risk management consulting, they provide a lot of hands on risk management, they provide a lot of claims reporting and things like that. And then we have what's called the FINEX Law Group. The FINEX Law Group is comprised solely of lawyers from private practice who either worked as a claims lawyer in private practice, worked as a claims lawyer at an insurance company, or both, before coming to us. And that crowd is who we use on all of our complex claims. Why? Because they've walked the walk. They represented clients in coverage disputes, they represented insurance companies in coverage disputes. And who better to help your clients with a coverage dispute from a consultation, as opposed to an outside counsel role, than someone who has walked the walk.

Darshan: Interesting. I'm trying to sort of think through this whole thing. I feel like we want to have a whole discussion on quote unquote, walking the walk, but I was wanting to have a whole discussion on risk payouts. And you made this reference to asset transfer and how do you handle the risk associated with that. Maybe that's a conversation for a different podcasts, but Kenny, can you stick around and maybe we can talk a little bit further?

Kenneth: Sure.

Narrator: This is the DarshanTalks Podcast. Regulatory guy, irregular podcast, with host Darshan Kulkarni. You can find the show on Twitter @darshantalks or the show's website at darshantalks.com.

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