While employers wring their hands and physicians scuttle to band together, employment attorneys such as Kirsten Vignec see the Affordable Care Act as a grand opportunity for the legal profession.
Lawyers represent the employers who generally are befuddled, confused or angry about the overhaul of the American health care system. Attorneys are needed to facilitate the formation of "accountable care organizations" that will change the landscape of how medicine is delivered.
"Once it became a headline issue, we knew it could be practice-changing in certain respects, and we wanted to jump in on it," said Vignec, a shareholder in the employee benefits group at Hill Ward Henderson in Tampa.
When the Affordable Care Act squeaked by an embattled Congress in 2010 and survived a U.S. Supreme Court challenge in 2012, Vignec found she was one of the few among her colleagues who actually read the 906-page law. "It was my claim to fame," Vignec said.
She made it her mission to become the equivalent of a Jedi master in the incredibly complex and nuanced law.
The signature legislation of President Barack Obama's presidency is three months away from unveiling insurance exchanges where consumers and small businesses can purchase policies. It took a hit, though, earlier this month when the Obama administration delayed the employer mandate by a year to Jan. 1, 2015.
But there was a collective sigh from the business community, many employment and labor attorneys said.
"We were generally relieved," said John Fleming, spokesman of the Florida Retail Association. "There was a lot of concern among employers that they were going to have trouble meeting the deadline. And there was a lot of confusion as to what they had to do."
With the staggered rollout of the Affordable Care Act, doctors and lawyers are looking to capitalize on it, businesses are crossing their fingers they can comply with new mandates, and consumers are holding their collective breath, hoping the colossal law will heal a broken health care system.
The stuttering rollout of what is known with equal affection and disdain as Obamacare has created a rich vein to mine in the employment and health legal field.
It's similar to what happened when the Justice Department ramped up prosecution of businesses under the federal anti-bribery statute, the Foreign Corrupt Practices Act. Law firms carved out practice areas solely dedicated to advising companies on how to comply with the FCPA, notably when buying a foreign company.
Now it's a sought-after skill for attorneys to be versed in Obamacare. And it's not just the employment attorneys who are reaping the benefits.
"Clearly, the Affordable Care Act is hitting a number of speciality areas of the law, including health care, employment law, antitrust, information technology and tax law," said K&L Gates partner William Spratt, another Obamacare expert in Miami.
Jeff Fine, a health care lawyer who mentors at the University of Miami Health Rights Clinic, said the program going into its second year will focus on the Affordable Health Care Act.
"This is going to be a niche practice area, a specialization because it's so complicated and the law is so long that most health care attorneys have not got involved in yet," he said.
Despite the law's good intentions, he said Obamacare may find itself costing businesses and consumers more, resulting in people in some instances losing or opting to forgo health care insurance.
A lot depends on younger Americans, many of whom are debt-ridden, buying into health care exchanges. Because insurance can't be denied for pre-existing conditions, they can wait until they are sick to get insurance.
For Fine's law and medical students, he said it's like having the option of paying for hurricane insurance after a catastrophe.
"The majority of people getting jobs today are underemployed," he said. "Are they going to take out $75 a month for health care? Or are they going to ask themselves: 'Do I pay my college loan, do I pay for my baby?' "
The one-year delay implementing the employer mandate allows businesses to crunch numbers before making coverage decisions.
"Employers are going to sit back and say, 'I'm going to figure it out with my attorney or my accountant and simply pay the penalty because it's several thousand dollars cheaper than to cover all you folks," Fine said.
Attorneys familiar with the new health care law see it spinning off litigation.
"If you have an employer basically impeding his employees to certain aspects of the health care law, it may give rise to a whistle-blower suit," said Michael J. Canan, a partner with GrayRobinson in Orlando. "You are probably going to find other areas that give rise to lawsuits as the health care act unfolds in the next several years."
Antitrust litigation is another possibility as doctors integrate their practices under the new law. It's this area where different government agencies may find themselves working at cross-purposes.
Spratt recalls a moment of clarity at a recent health care conference when he sat between a lawyer with the Federal Trade Commission and a lawyer with the Centers for Medicaid and Medicare Services.
"The Medicare lawyer was saying the only way to drive down health care costs was to clinically integrate and align the economic interests of a group of providers." Spratt said. "The antitrust attorney though said, 'I've got a real problem with putting a bunch of competitors together in the same organization sharing sensitive fee information. And we need to be very careful about creating organizations that create market power for some and exclude others from offering their services.' "
Physicians are establishing accountable care organizations, or ACOs, coming together voluntarily to give coordinated high quality care to Medicare patients. The idea is to ensure patients, especially the chronically ill, avoid unnecessary duplication of services.
Efficient ACOs will be able to share in the savings it achieves for the Medicare program.
A study by Medscape, part of the WebMD Health Professional Network, found last year that 24 percent of doctors were in an ACO or planned to be in one.
For every ACO, there often is an attorney behind the scenes — though the law doesn't require it.
"As a practical matter, any physician group that wishes to form an ACO should consult with an attorney knowledgeable about the various legal issues pertinent to ACO formation," said Howard J. Young, co-head of Morgan, Lewis & Bockius' health care practice in Washington.
He said doctors need to be aware of antitrust issues, fraud, risk-sharing, even fraud and abuse.
"It's really an exciting time to be health care lawyer," said Jodi B. Laurence, a founding partner of the Florida Health Law Center in Davie. "I represent health care providers whether it be a doctor joining a hospital as an employee or 10 different practices coming together as an entity or a network."
ACOs are designed to be efficient and lower costs. The Affordable Care Act aims to allow practices to share patient information among ACOs and eliminate reams of paperwork that drive up costs.
The result, though, may mean the era of the trusted general practitioner is no longer feasible.
"It's tough to provide care as a solo practitioner under the health care reform laws," Laurence said. "With Obamacare, there are incentives for integrated delivery of medicine."
While physicians are motivated under Obamacare, employers and their workers are another matter.
Until this month, the words employment attorneys most used to describe their client's feelings about Obamacare were angry and confused.
When the Obama administration announced a one-year delay in the employer mandate July 2, it gave them a chance to reassess.
"I think that some of the pressure is off of employers," Spratt said. "I see it as more as a race to a finish line, and basically the starting gun will go off at different places at different times for all the runners to be running the same race."
Kenneth R. Hartmann, a shareholder at Kozyak Tropin & Throckmorton and head of the Coral Gables firm's health care group, said the delay would affect only about 5 percent of businesses.
"I don't think it will have much effect at all," he said.
Employers, especially small ones, are still in the same place they were before the delay: perform a cost-benefit analysis to decide whether to provide coverage or take the penalty for not insuring workers.
"What you are seeing a lot of people at least right now plan around the act as opposed to complying with the act," said Mark Emanuele, an employment attorney with Lydecker Diaz in Miami.
Playing With Hours
Another bad sign is that the law may shrink small businesses.
Health care lawyer James Farrell, a partner in Shutts & Bowen's West Palm Beach office, said he met with a business client recently who was approaching the 50-employee threshold where he would have to make decision to provide health care for employees or possibly face a penalty.
"Part of the analysis is whether or not the client should sell part of that business to ensure the more profitable part of their business continues under 50 employees," he said.
Farrell said employers still show an overall concern and confusion over whether Obamacare is going to function as planned. Agencies that have not worked well together in the past — the Internal Revenue Service and Departments of Treasury, Labor and Health and Human Services — must work together for the law to work, he said.
On the Medicaid front, a study by the George Washington University's public health school found that though millions of low-income adults will gain access to Medicaid coverage under Obamacare, those already in the program could be shut out of some key preventive services.
"There is a real concern about lack of coordination and all the regulation they are publishing and the potential conflicts they are creating," Farrell said.
Some employers have threatened to cut worker hours below the 30-hour weekly threshold to avoid mandatory health insurance coverage, but that could open up businesses to new violations if they misclassify workers as contractors.
"They are going to face legal consequences, the Fair Labor Standard Acts and tax consequences. The IRS will go after you for unpaid employment taxes," said Donna Ballman, who represents workers in lawsuits against employers.
But businesses always get creative when it comes to the bottom line.
Juan Rubio, owner of Don Ramon Restaurant in Palm Beach County, said he isn't worried because his three restaurants are under separate corporate names. "It's hard to have 50 employees at each restaurant," he said.
Fatburger CEO Andy Wiederhorn told CNN last week that owners of his Los Angeles-based company's franchises have begun sharing workers to get around the health care overhaul. Under the franchisees' plan, employees would clock less than 30 hours at any single Fatburger franchise but would be working full-time hours when their hours at different outlets are combined.
By keeping employees working under 30 hours at a single place, the franchises expect to avoid paying for their health insurance.
Politics In Play
Kristie Arslan, president and CEO of the National Association for the Self-Employed in Washington, said there is no escaping increased costs for small businesses under the law.
"Our fear is that many small businesses will conduct a cost-benefit analysis and decide to pay the penalty because the cost of coverage is just too expensive and they do not qualify for any premium assistance," she said.
Small employers who say they're doing right by their workers by providing health care coverage also are feeling the pinch of Obamacare.
Attorney Ben Solomon, a partner at the Association Law Group in Miami, said his firm has about 50 attorneys and plans to provide coverage. However, his insurance broker came back with some disturbing news: a 30 percent increase directly due to the Affordable Care Act no matter which plan he chooses for 2014.
"It seems like a penalty," he said. "In a utopian situation, I would obviously love for everyone to have health care. And I don't want to come off as callous on the issue, but to drive up the cost and to have the uncertainty in the air without the problem being proven, well, obviously I'm not a big fan."
Then there is the political side of the Affordable Care Act.
Attorney Michael Casey, a management-side attorney with Duane Morris in Miami, said the delay in the employee mandate is an embarrassment to the administration. He said the Treasury Department's computers are not ready to implement the law, and he predicted the individual mandate due to take affect this fall also will be delayed.
"This may give Republicans and many Democrats the opportunity to further tinker with the law or even push for its repeal," he said.
It's been an effort in vain so far. The Republican-controlled House has voted to repeal the Affordable Care Act 37 times, but it's a non-issue in the Democratic-controlled Senate.
Ballman, the plaintiffs employment attorney, said she remembers hearing woe-is-me critics of the Family Medical Leave Act in the mid-1990s.
"It was all this talk that the economy would tank and blah, blah, blah," she said. "It never came to pass. It actually improved workplaces instead of hurting them."