Mitchell and Mitchell on Health Care and the Trump Agenda, Part 7: Rewriting Regulations
This is the seventh post in an ongoing series regarding changes in health care that may take place—and actual changes that do take place—with the Trump administration. The likely implementation issues to be encountered for both potential and actual changes are described, based on detailed methods of analysis. The emphasis is on what these shifts mean for legal practices and how attorneys may prepare in the most effective ways.
The proposed American Health Care Act (AHCA)—now withdrawn—provided only the most visible approach to the changes in health care that are under way in the President Trump administration. Receiving much less attention are strategies for change based on the rewriting of regulations.
The present operations of the Affordable Care Act (ACA), Medicare and Medicaid are based on an elaborate regulatory structure built on general statutes and interpretations of Congressional intent. The opportunity exists to change these programs in many substantial ways by changing the regulatory details, even as statutes remain the same.
The interests of the Department of Health and Human Services (HHS) in this direction have been indicated online at www.hhs.gov. As noted through a press release and new web page that describes ongoing administrative actions, planned changes involve “relief from…burdensome regulations” and “fostering competition in insurance markets.”
In a linked letter to 50 state governors dated March 14, HHS encouraged Medicaid programs to create a renewed emphasis on the services being provided to disabled populations, observing that the higher state reimbursement rate for expanded Medicaid coverage for adults “provided states with an incentive to deprioritize the most vulnerable populations.”
It is interesting to note that the historical Medicaid emphasis on care for the aged, blind and disabled has not been dealt with by either the ACA (as implemented) or the AHCA. The HHS letter suggests that the agency is now preparing to deal with the issues facing long-term care (LTC), at least in a preliminary way. Many individuals and organizations may be affected, including persons with LTC needs, their families, and their attorneys; LTC facilities of all types; and state Medicaid programs.
As such changes advance, affected groups of individuals and organizational types will begin to react according to their estimates of how their interests will be affected. The HHS letter encourages Medicaid programs to ask for various waivers and demonstration projects as one approach to change.
The government also has encouraged Medicaid agencies to arrange for low-income, non-disabled adult beneficiaries to “advance in an effort to rise out of poverty,” with an emphasis on “training, employment and independence.” This emphasis may be viewed as an effort to begin reducing the numbers of people seeking help through the expanded Medicaid portion of the ACA. As indicated, changes might involve premium or copay contribution requirements. The intent is clearly to shift some adults from expanded Medicaid to employment. Such changes have the potential for meeting resistance from those individuals affected and their advocates, and may affect access to care. At the same time, providers may support such efforts, if fewer patients have lower-paying Medicaid coverage and more have private-employment group plan coverage.
So long as changes in the statutes remain sidelined, the rewriting of regulations may be the most important pathway to change in the health care system. By inviting the 50 governors to seek their own approaches to Medicaid revisions, HHS is taking a regulatory step that might be consistent with an eventual block grant approach to Medicaid, as proposed under the AHCA. Such changes might also help shift complaints away from the federal level and toward state levels, resulting in less national focus and more diffuse and fragmented reactions.
This post was written by Ferd H. Mitchell and Cheryl C. Mitchell, Thomson Reuters authors and attorney partners at Mitchell Law Office in Spokane, Wash. They are active in elder law and health law practice areas and have been working together on programs and activities on behalf of the elderly and in health care for more than 25 years. During their studies, they have visited and evaluated the health care systems of Japan and several countries in Europe to learn how the needs of the elderly are assessed and met in other countries, and they have been better able to understand the U.S. health care system and related care issues from these visits. More about the lessons learned from the ACA and issues involved in health program changes may be found in the 2017 edition of the authors’ book, Legal Practice Implications of Changes in the Affordable Care Act, Medicare and Medicaid, published by Thomson Reuters. More about these methods of analysis may be found in Mitchell & Mitchell, Adaptive Administration, published by Taylor and Francis. Follow the links below to read previous installments from this series:
The views and opinions expressed in this post are those of its authors alone.