Count health care lawyers among the winners in the U.S. Supreme Court’s decision upholding the Affordable Care Act.
Lawyers say they expect an uptick in demand for their services as clients who took a wait-and-see approach to compliance must now forge ahead to meet key deadlines in 2014.
“What health care lawyers across the country are now confronting is getting it done, and implementing those portions of the law that implicate [client] businesses,” said SNR Denton health care partner Bruce Fried. “The potential for chaos had the court ruled otherwise has obviously been resolved.”
Of course, if the Supreme Court had struck down the law, lawyers would also have seen demand for their services soar. Stephen Bernstein, who heads McDermott Will & Emery’s health industry advisory practice group, said that either outcome “would have equally created work”—albeit of a different variety.
One major area where businesses are now likely to seek assistance is in implementing the employer mandate. By 2014, businesses with 50 or more employees must offer “affordable” minimum health insurance coverage or pay a penalty.
Deciding which is the better course of action is not an easy call, said Jennifer Kraft, a partner at Seyfarth Shaw who penned an amicus brief in the case on behalf of the National Restaurant Association complaining of the burdens that the law places on employers.
“There are a number of employers who were waiting to see if they really needed to get into the weeds on this,” she said. “It’s in their best interest now to move ahead with the analysis.” Because the requirement is entirely new, companies “are looking to us for how to interpret the guidance” and help them make good-faith decisions, she said.
Insurance carriers face new considerations as well, said Cindy Gillespie, who leads the health care policy team at McKenna Long & Aldridge—namely whether to move into the health insurance exchange market. States, too, face choices about their involvement in exchanges—new entities which will offer a choice of plans and are intended to create a more competitive market for insurance.
“On a practical level, industry has to make some decisions,” Gillespie said, noting that while many have done analysis and background research, they “now have to move to the decision point. … Businesses need to ramp up.”
Another area where health care providers may now be more inclined to act is in forming accountable care organizations—collaborative networks of doctors, hospitals and other providers, said Arent Fox partner Jill Steinberg. “There’s more certainty now, so they may consider it” more seriously.
To Stephen Weiner, who chairs the health law practice at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, the greater sense of certainty that the ruling provides is crucial for all industry participants.
The high court’s decision “alleviates an incredible amount of anxiety … that had left the system in a total state of uncertainty,” he said. “Fundamentally, for people in the field who are not political ideologues, it’s a relief to be able to move forward understanding what the ground rules will be.”
Perhaps the biggest sighs of relief came from the biotechnology industry. Tucked in the 2,600-page health care law is a provision that created a regulatory pathway to make generic versions of high-tech biologic drugs—products that account for $40 billion in sales a year.
Had the court thrown out the health care law in its entirety, it would have also voided “a very carefully negotiated, painstaking compromise,” said Zuckerman Spaeder partner Carlos Angulo, and renegotiating it would have been no simple matter. “There are a lot of relieved people out there,” he said.
Still, lawyers caution that the Supreme Court may not have the final word on health care.
“This is not the end of it,” said Venable partner Ted Ramirez, chairman of the firm’s health care public policy group. “It’s almost a repoliticization of the process.” The presidential election in November and the 113th Congress next year “may trigger a whole new scenario,” he said.
In the meantime, “the court has spoken,” he said. “We simply have to help our clients cope and identify opportunities.”