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Obamacare creates a niche market for lawyers

The dark clouds of turmoil and disruption have plagued the Affordable Care Act since it opened for business in October, but there's a silver lining for one group of professionals.

LAWREVIEW27.  PICTURED:  Brian Pinheiro.
LAWREVIEW27. PICTURED: Brian Pinheiro.Read more

The dark clouds of turmoil and disruption have plagued the Affordable Care Act since it opened for business in October, but there's a silver lining for one group of professionals.

Labor and employment lawyers are providing advice to clients on problems that didn't exist before the rollout, and guiding clients through a thicket of new health-insurance regulations is emerging as a new practice area.

Lawyers say the uncertainty about how the law will work - indeed, whether aspects will work at all - is causing clients to pick up the phone.

"First, we had the uncertainty over how the Supreme Court would rule, but until the court ruled, people had to plan as if [ACA] would go forward, but they also had to plan as if it would not," said Joyce Cowan, a lawyer with Morgan, Lewis & Bockius who works out of its Washington office.

"Then there was the issue with the rollout and the information exchanges between the states and federal government and insurers. Our clients have had to adapt."

This year, employers won a temporary reprieve, after companies complained that they were not ready to implement the requirement that full-time employees be provided health coverage. The Obama administration pushed back the deadline for one year, from Jan. 1, 2014, to Jan. 1, 2015.

For a time after the ACA was signed into law in 2010, many companies weighed the possibility of dropping health-care coverage altogether, and the economic logic seemed compelling. The law requires that employers with 50 or more full-time workers provide health insurance that meets the minimum ACA standards; those that fail to do so are subject to tax penalties of $2,000 per employee. On its face, at least, it would be far cheaper for a company to pay the penalty than to purchase health insurance.

Many companies, particularly those with highly skilled workforces, rejected that option, reasoning that staffers would jump ship for firms that offered the benefit and that recruiting efforts would be harmed.

But Andy Anderson, an employee benefits and executive compensation lawyer at Morgan Lewis, said another reason has emerged:

Problems with the federal government's insurance exchange website,, and now with some of the state exchanges have raised concerns that if companies drop coverage, employees will have no place to get it on their own.

"I don't have any client who has" dropped coverage," Anderson said. "And anyone who was considering doing that . . . is probably glad now that they did not.", effectively a digital marketplace where consumers can shop for health coverage, got off to a dismal start in October when hundreds of thousands tried to access it but could not get in. The Obama administration says that the site has improved markedly and that many people are now obtaining coverage.

However, state-based exchanges, touted initially as models for how the system might work, have lately run into problems, and the directors of exchanges in Minnesota, Oregon, and Maryland have left their positions amid complaints about limited access and other problems.

By far the trickiest challenge confronting big employers is determining which employees are eligible. The law says that all full-time employees must be covered, and it defines "full time" as anyone who works 30 or more hours a week.

For companies in the retail trade or the restaurant industry, defining who is covered has started to absorb a lot of time and energy, say lawyers who advise these companies. The goal for many employers is to keep as many employees under the 30-hour cutoff as possible, limiting what companies would pay for coverage.

This analysis is being applied across a wide range of industries and employment, everything from adjunct university professors and athletic coaches to waiters and waitresses. How to do that, though, when many employees' hours vary from one week - or one season - to the next has created widespread uncertainty.

"The employer community is looking at all the options available," said William Flannery, a lawyer with Center City's Post & Schell P.C. "The struggle that most of our clients are dealing with is the struggle to recognize that people who are full time are people who work 30 hours a week. It is really causing dislocation in the scheduling process."

Many employers are looking at part-time employees now and asking, "Do we offer them coverage or do we change their work schedules?" said Brian Pinheiro, a partner at Ballard Spahr L.L.P.

He said many employers believed for a while that the law would not be implemented - either Obama would be voted out of office or the courts would overturn the law. Now, he says, those thoughts have given way to concerns that the law may not work.

"Confidence has been shaken," Pinheiro said.