Mitchell & Mitchell on Health Care and the Trump Agenda, Part 13: An Opportunity for Attorneys to Help Shape Health Care Policy?

This is Part 13 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.

On June 12, 2017, the Department of Health and Human Services (HHS) published an invitation in the Federal Register for all interested parties to suggest ways in which the health care system may be improved. You review the information here.

Comments are due by July 12, 2017 and will be considered with regard to improving the individual and small group health insurance markets with respect to four goals:

Empowering patients and promoting consumer choice;
Stabilizing the individual, small group, and non-traditional health insurance markets;
Enhancing affordability;
Affirming the traditional regulatory authority of the states in regulating the business of health insurance.

It is impossible to know how much impact the submitted suggestions will have, but it is possible that this is an opportunity for attorneys to use their practice experience to provide insights to HHS.

Throughout this series of blog posts, we have noted that policymakers and planners of health care programs have generally failed to consider reactions by interested individuals and organizations. Such reactions help reshape program outcomes so that intended and actual outcomes may be quite different.

In their real-world practice, attorneys often see the impact of health care and regulatory changes on a first-hand basis. Clients who are to be affected by new laws and regulations may often react in ways that will protect their own interests. Widespread reactions by clients can be combined to change how programs develop.

Based on their practical experience, attorneys may wish to inform HHS of the ways in which proposed program changes reflect how those affected are likely to pursue their own interests.

As noted in part 12 in this series, the Congressional Budget Office (CBO) models used by Congress to evaluate new programs have the potential to be flawed and may fail to adequately consider the reactions that will reshape outcomes.

Real-world information from the front lines of practice might provide some degree of pressure on HHS and Congress to apply better ways to anticipate program outcomes. Improved approaches are available but there is resistance to accept the need for new planning strategies.

We suggest that frontline attorneys consider the following topics:

How the rights, preferences and interests of individuals and organizations may be best protected in laws and regulations, so that intended and actual program outcomes may be better aligned;
How the legal options available to individuals and organizations should be structured, in order to maximize the potential for successful adaptation to specific circumstances;
How recognition of the roles of attorneys in advising clients may be better factored into program designs;
An emphasis that program planning should realistically address the likely reactions by the public—including activities based on legal actions—that will help determine program outcomes.

This comment period is a unique opportunity for attorneys to help shape discussion on this important topic for the benefit of their clients.

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: