The Affordable Care Act has accelerated the consolidation of the hospital industry, led doctors to merge their practices or go work for hospitals and layered blankets of new rules over the health care sector — already among the most heavily regulated industries in the nation.
All of this can mean only one thing. You guessed it: A need for lawyers.
Health care law, already on the rise in 2010 when the ACA came along, has been given a shot of adrenaline.
Call it specialty law on steroids.
"Our practice is absolutely exploding, and a lot of that is attributable to the ACA," said James A. Robertson, who heads the health care practice at McElroy, Deutsch, Mulvaney & Carpenter.
Robertson merged his dozen-lawyer boutique health care law firm into McElroy Deutsch more than two years ago. He did it just to gain access to some of the additional skill sets and expertise the firm had to offer.He never realized how extensive it would be.
"We're pulling people in from all over the firm," he said, before estimating more than two dozen McElroy Deutsch lawyers firm-wide "are touching health care."
Thanks to these merger synergies, Robertson said, the firm is planning to add more people "in very short order," he said.
The firms not the only one.
Representatives from a handful of some of the top health care law practices in the state all said health care law is an area of growth for their firms — one they often struggle to fill.
"The demand for experienced health care lawyers exceeds the supply," attorney Mark Manigan of Brach Eichler said.
It's easy to see why.
Robertson said health care currently accounts for 14 percent of McElroy Deutsch's revenue — a percentage he estimates could rise to between 20 and 25 percent over the next five years.
Brian M. Foley, who heads the health care practice at Schenck, Price, Smith & King, has seen a big impact in the hospital industry.
Foley said a big hospital system typically employs several lawyers in-house while also tapping outside law firms. All this legal activity, he said, is driven by the sheer magnitude of health care.
"Health care is one of the largest segments of our economy, and it's a growth segment," he said.
As an example, Foley pointed to the ACA-created accountable care organizations, where health care providers join forces with Medicare and commercial payers and then split the money they save by delivering health care more efficiently.
"These new models of care have generated new reimbursement models that are, more and more, being tied to performance and quality measure," he said.
And all these new vehicles need lawyers who write contracts spelling out the rules of engagement in this new health care arena.
Foley also sees a surge in audits, with Medicare and commercial insurers sending audit consultants working on contingency into hospitals and medical practices. Every medical procedure has a code that generates the bill for that service.
"(Coding) is very complex, and the payers want to make sure they're not overpaying," he said. "(Auditors) look at the claims and then look at the service performed in the medical record to make sure they were properly coded — and if they were coded too high they will seek to recoup payments."
Foley said one of his health care provider clients recently went through an audit and the payer withheld funds.
"We got involved, we freed up the funds, we appealed the finding of the audit and were ultimately successful," he said.
There seems to be so many ways to get involved, said Todd C. Brower of McCarter & English.
"It's not a business that fluctuates drastically with the economy," he said. "It is constantly booming, and in large part that's due to government regulations and the constantly changing (regulatory) environment."
Finding qualified health care lawyers to handle that load is not easy.
"Health care law is absolutely a growth area in the profession, but it does take time to develop this expertise," Robertson said. "You have to be steeped in it every day, because the health care industry is moving so fast and changing so much, that what you thought were the rules today, by tomorrow, they've changed."
Help may be on the way.
Foley said when he was in law school 25 years ago, there were no health care law courses. Today, law students can concentrate in health care law and then get a master's degree in the specialty.
And the American Health Care Law Association membership is more than 13,000 — a number Foley said has more than doubled over the past dozen years.
The numbers are even more impressive when you consider how the lawyer job market was devastated by the 2008 financial crisis.
"The demand for new lawyers overall is probably not very healthy right now — but health care law is still a hot area," Foley said.
How hot? Consider this:
Mark Manigan, a member of the health law practice group at Brach Eichler, said the firm has hired lawyers with several years of experience who want to make a switch into health care.
"We're interested in finding talented people and helping them become health care lawyers and grow our practice," he said.
While adding to one of the fastest growing specialties in the industry.
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Where's the growth?
A look at how four firms have seen increasing business in their health care specialty:
Mangian said Brach Eichler's health care practice, formed more than 40 years ago, has roughly doubled in the past decade to 20 lawyers. And there's no reason to think growth will slow.
"(Health care consolidation) has created a lot of legal work, and we've been doing a lot of the deals," he said. "And we help our clients navigate what is an exceedingly complicated regulatory environment."
The list seemingly is endless. There are anti-kickback and antitrust laws, employment agreements, Medicare regulations, licensing and rules issued by the state Department of Health and the Board of Medical Examiners, which licenses doctors.
"We are experts at health care rules and regulations, but we are also deal lawyers, that has been part of the reason for our growth."
Todd C. Brower
McCarter & English
The former longtime Brach Eichler attorney said the ACA has created big opportunities for more work.
"(The ACA) mandates that all health care providers have (regulatory) compliance plans," he said.
The not-so-consisent rollout of the law actually has helped.
The new requirement is being phased in, and ultimately, any health care provider — including a doctor's office — that gets reimbursed by the federal government will have to have a compliance plan.
Brower said he's never seen a time when health care law wasn't busy: "It is not a business that fluctuates drastically with the economy. It is constantly booming, and in large part, that's due to government regulations and the constantly changing (regulatory) environment."
David N. Hoffman
Hoffman pointed out that there is a real connection between the government's focus on compliance and health care reform's goal of improving access to care, affordability and quality. For Hoffman, that's a key part of the Affordable Care Act.
"Financial reimbursement is tied to the quality of care," he explained. "The government doesn't want to pay for care that wasn't provided: That's fraud."
And fraud, he said, can come in many forms — meaning much more work: "(The government ) doesn't want to pay for care that was provided but wasn't medically necessary: that's fraud."
Of course, getting the job done right matters, too. "The government doesn't want to pay for care that was not done well, on the theory that poorly performed medical treatment isn't worth anything," he said.
Susan V. Kayser
Kayser has specialized in the nursing home and assisted living sector for 25 years.
Kayser said many of her clients are small facilities without in-house attorneys that depend on Kayser. A recent case illustrates how critical her guidance can be.
Kayser reached a favorable agreement with Medicare for a nursing home client that had some compliance violations. The nursing home agreed to hire more staff to improve its operation but was also slapped with a fine of more than $150,000. She got the government to rescind the fine, aruging it wouldn't be of help to anyone.
"(The government) recognized that the facility got the message, and they are taking steps to turn the corner (and that) a six-figure penalty would not do any real good for the facility's goal of upgrading its services to the residents."