Health law: Hot and getting hotter

Some practice areas are seeing faster-than-ever growth and lots more jobs. Health law is one specialty that likely won't cool down for years to come.

By Richard L. Hermann

Health law jobs are some of the most abundant.

Why? There are many reasons, including the changes and increased regulations brought about by the Affordable Care Act and the Health Insurance Portability and Accountability Act (HIPAA). Health care costs have risen at three times the inflation rate for 30-plus years, and there’s still poor quality of care. The World Health Organization ranks the U.S. health care system 37th in the world. There’s also technological innovation, globalization, an aging population and huge regulatory burdens.

A spate of emerging issues should keep health lawyers busy for years. Here are the top 10 reasons:

1. Skyrocketing health care costs
Americans will spend $3.3 trillion on health care in 2016, or about $10,000 per person. No other country comes close to this outlay.

2. Stepped-up fraud and abuse enforcement
At least $100 billion is lost to health care fraud each year. Federal and state governments are increasing anti-fraud resources, prompting increases in the number of lawyers needed to defend alleged wrongdoers.

3. Telemedicine licensing and credentialing
Telemedicine — electronic data and telecommunications technologies supporting long-distance health care — has leaped far ahead of the law. Only a handful of state medical licensure systems accommodate telemedicine. Providers also confront a patchwork of conflicting requirements for insurance claims and practice standards.

4. More vigorous antitrust enforcement
Among the targets: hospitals and health care associations alleged to have conspired to fix the salaries of nurses and other employees; legal challenges by small institutions against rivals over managed care; and health care provider contracting practices. The Federal Trade Commission and the Justice Department’s Antitrust Division are also challenging more hospital mergers.

5. “Freedom of conscience”
In the Hobby Lobby case of 2014, the U.S. Supreme Court ruled as unconstitutional an Obamacare mandate that closely held corporations provide contraception coverage for employees. In addition, 47 states have adopted “conscience clauses” that give private providers the right not to participate in abortions. At least 21 states have enacted “religious liberty” laws, which allow providers to refuse service to certain individuals. Expect a flood of litigation.

6. Health care privacy
Medical identity theft is a big temptation for hackers because they can exploit this data to obtain drugs and medical devices, or to make false insurance claims for health services. The number and complexity of laws and regulations should increase the number of jobs for attorneys.

7. Blurring the lines of professional practice
As non-physician health professionals assume more responsibility for patient care, compensation issues arise because physicians are paid much more than other health care providers. Practices that employ physician assistants and nurse practitioners often bill patients and third-party payers the same as if a physician had provided the services.

8. Provider relationships
Relationships between hospitals and physicians are in a constant churn as new partnering arrangements emerge. These include hospital acquisitions of physician practices, hospital syndications, joint ownership arrangements between nonprofits and for-profits, mergers and acquisitions of physician practices and strategic alliances. Attorneys are heavily involved in these. 

9. Bioethics
Technological innovation raises a host of bioethical issues. Today, bioethicists are becoming pervasive, and an increasing number have law degrees.

10. Physician self-referral rules
Physicians are prohibited from referring patients to an entity for certain health services if the physician or an immediate family member has a financial relationship with that entity. The law also prohibits an entity from presenting a claim for services provided under a prohibited referral. This is one of the most confusing and complicated health care regulations in existence, and its nuances are the topic of constant debate.

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Richard Hermann’s new “21st Century Legal Careers” series analyzes the hottest emerging jobs and careers for law grads. Each booklet describes why the field is hot; who hires; where jobs are located; positioning yourself for success; future prospects; and more. The series debuts Fall 2016 at www.nalp.org/bookstore