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Intersection of Healthcare and Law

April 15, 2024

Golkin Exterior, from the Courtyard
Golkin Exterior, from the Courtyard

Dr. Lee Fleisher C’82, ML’24 said, “Understanding the vocabulary and the basic premises of the law is helpful in almost everything I do now.”

By Jay Nachman

During the height of the pandemic, the U.S. Supreme Court blocked the vaccine mandate for businesses with 100 or more employees but allowed a mandate requiring vaccinations for approximately 20 million health care workers to stand.

headshot of Lee Fleisher ML'24 Dr. Lee Fleisher ML’24The latter mandate was promulgated by the Department of Clinical Standards and Quality for the Centers for Medicare and Medicaid Services (CMS), under the direction of Dr. Lee Fleisher C’82, ML’24, who served as the agency’s chief medical officer from 2020 to 2023. CMS regulates every facility in the country that accepts Medicare or Medicaid dollars.

Before joining CMS in July 2020, after an extensive national search, Fleisher was the chair of Perelman School of Medicine’s Department of Anesthesiology and Critical Care for 17 years. During that time and before the pandemic, he took a class in constitutional law with Theodore W. Ruger, John H. Chestnut Professor of Law and former dean of the University of Pennsylvania Carey Law School.

“Having Ruger’s course, knowing that the vaccine mandate for healthcare workers would end up in the Supreme Court and understanding what we had to do to make sure that the regulation was airtight and would survive a Supreme Court challenge, was incredibly helpful,” Fleisher said.

“What the Supreme Court ruled was that we, CMS, had so rooted the way in which we had written the rationale for our mandate, in addition to the evidence that vaccinations protected patients and their safety, that the five-to-four majority affirmed that the authority was within our authorities,” he said.

After taking that initial class, Fleisher began taking other courses, including one in regulation which proved invaluable as he oversaw the writing and approval of many regulations during his CMS tenure. Before leaving CMS, Fleisher enrolled in the Master in Law program in order to further his legal studies.

Throughout his academic career, Fleisher’s research has been focused on evidence generation, assessing quality, and creating quality metrics. Prior to being offered the CMS post, Fleisher had worked with CMS over the years, helping the Agency develop its first program to measure quality.

“How do I help create a new program in the CMS innovation center? That was my plan, to go and help think through innovative payment models. It really was not the job that I ended up getting,” Fleisher said.

“On day one, my biggest job was how to protect the nursing home residents because all the nursing homes in the country were experiencing a large number of deaths from COVID. The CMS team immediately began writing regulations to help manage the pandemic in nursing homes and my learnings from my law classes became very real,” Fleisher said.

Fleisher initially planned to take a two-year leave of absence from the medical school to assume his role at CMS. As the public health emergency lingered, he felt it was his duty to stay on at the Agency, necessitating his retirement from the medical school.

Fleisher now is an Emeritus Professor of Anesthesiology and Critical Care. He works one day a week in the operating room, serves on three policy think tanks, and in partnership with his son has formed Rubrum Advising, which provides strategic healthcare consulting.

He is also finishing his Master in Law degree this May.

“Understanding the vocabulary and the basic premises of the law is helpful in almost everything I do now,” Fleisher said.

While finishing his appointment in D.C., he took a class in technology and IP law and another in patent law. Those classes, he said, have helped him understand the legal perspective of the work he is now doing concerning the regulation of new technologies, including artificial intelligence in health care.

“Those two courses were the foundation and the JD course that I took, Policy Lab on Artificial Intelligence and Implicit Bias, have continued to help inform me as I’m doing this policy work in addition to work at my firm,” he said.

Learn more about Penn Carey Law’s world-class ML program.