Health law's dynamic and changing practice

By Julie Chen Allen

Nearly a year after the historic Patient Protection and Affordable Care Act was first signed into law and 26 states subsequently sued to challenge the constitutionality of the law’s mandates, legal decisions are trickling in from around the nation with varying results. The most recent decision arrived a week before Valentine’s Day from a Florida judge who harshly declared the law, in its entirety, to be unconstitutional.

“So far, there is a two-to-two score among the Federal District courts that have issued decisions,” said Adam Aseron, an associate attorney in the health law section at Vinson & Elkins. “Ultimately, the issue could end up at the U.S. Supreme Court.”

The health care reform law seems to have caught itself in an Arctic Oscillation of sorts — constitutional or unconstitutional? Like the strange weather patterns of late, it might be best to prepare for either front.

Meanwhile, health lawyers must carry on.

“It’s too early to tell how [the new law] will actually impact the industry in practice,” Aseron said.

Many regulations that will be necessary to implement the reform legislation have yet to be finalized, much less issued.

“[But] because health law is so dynamic, there is always room for creative, and often unprecedented, applications and interpretations of the law,” he said.

In other words, no one is halting their practice any time soon – legal or health care. 

In fact, experts have predicted a rising need for health care services as Baby Boomers are projected to have entered retirement by the year 2030. In turn, many lawyers expect the need for legal guidance for both health care providers and consumers to also increase.

“What makes the practice of health law rather unique is that the practice is really focused on an industry rather than a specific body of law,” Aseron said.

This means health law attorneys find themselves advising a wide variety of clients who all have some connection to the health care industry, from individual health care patients and providers like nurses, pharmacists and doctors, to vendors servicing the health care industry like insurance companies, blood banks, hospitals or hospices.

In a day’s work, a health lawyer might provide advice regarding the application of health information privacy rules, draft health-related risk disclosures for inclusion in a company’s annual report, negotiate changes to a managed care contract, analyze whether the structure of a proposed joint venture complies with fraud and abuse laws, or represent a Medicare provider during a governmental investigation or audit, Aseron said.

Unfazed? New attorneys without any background in health care might face some challenges.

Penny Hobbs, a board certified health lawyer and partner at McGinnis Lochridge & Kilgore, explains. 

“Because health care is a highly regulated industry, there is a lot of federal and state regulation with hundreds and hundreds of pages of proposed rules and commentary,” Hobbs said. “It can take many years for proposed regulations to be adopted, which results in a lot of uncertainty. With very little guidance from firm rules, it can be challenging work when you’re trying to guide your clients. It helps to have experience in the health care industry to understand the regulatory landscape.”

If you are interested in working with clients that are involved in large transactions, like insurance companies or hospitals, it might help to have a business background, Hobbs said.

And at the end of the rainbow?

“I love the diverse nature of my work,” Hobbs said. “No two projects are ever the same, and the work is intellectually stimulating.  I am very lucky to love what I do.”

Aseron agrees. 

“There’s hardly ever a dull moment in my practice,” he said.