Mitchell & Mitchell on Health Care and the Trump Agenda, Part 16: No One is in Charge of Health Care

This is part 16 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 Republican-controlled Senate has now rejected a wide variety of proposed revisions to the Affordable Care Act (ACA). The question of the moment is: where does this leave health care today?

In an arduous session that continued on July 27, 2017, the Senate narrowly rejected both the American Health Care Act (AHCA) from the House of Representatives (refer to part 9 of this series) and a last-ditch proposal for a “skinny” or limited repeal of selected portions of the ACA focused primarily on eliminating contentious mandates and taxes. Despite these set-backs, many Republicans in Congress continue to support “repeal and replacement” of the ACA, with the White House continuing to pressure Congress to fulfill its commitment to “repeal and replace” the ACA.

The Democrats in Congress have begun to focus on improvement of the ACA through strategies that include more public funding for insurance companies. Such funding would encourage wider participation by insurance companies combined with reduced premiums and deductibles for the health care policies being sold on the Exchanges.

The entire effort to address issues related to the ACA has been highly polarized. Republicans and Democrats find themselves with opposing viewpoints of what should be done in health care. At issue now is what type of further activity is likely to take place. The present version of the ACA is not working well and, without some revision, is likely to develop further problems.

How are these highly polarizing and opposing viewpoints likely to be resolved?

As described in part 1 of this series, our analysis of the original ACA implementation has revealed procedures that may be used to estimate how the health care system is likely to evolve under various circumstances. As summarized, the impact of various actions (or lack of actions) is driven by the following factors: (1) the financial interests of those involved; (2) preferences of the public for choices over mandates; (3) the complexity of actions taken, related to the likelihood of technical and administrative problems; (4) improved ability to estimate program outcomes with less reliance on standard cost-benefit studies as part of planning; and (5) how attempted changes are affected by large-scale social and economic factors.

What are the present interests of the individuals and organizations involved, and how are these interests likely to play out in today’s environment?

In Congress and the White House, elected officeholders are best served by acting in a way that gains approval from their voters and serves their political purposes. So, the ways in which voters perceive their own interests are likely to drive not only personal reactions but also the reactions by decision makers in Washington.

The ACA has built up a constituency over the past seven years of people who perceive that their interests are best served by strengthening the existing program. Those who are making effective use of the ACA, provider organizations, and insurance companies are generally supportive of these attitudes.

At the same time, the ACA has also resulted in perceptions by people subjected to unwanted mandates and taxes that the law creates an unacceptable burden. People who resent the impact of the ACA on their lives, companies experiencing higher costs, and people worried about the unsustainable growth of U.S. debt are generally critical of the present situation.

Surveys of public attitudes have generally shown that the “fix the ACA” group is larger than the “cut back the ACA” group. However, the affected groups are highly polarized, so that any mutual agreement is hard to obtain.

The outcome of this impasse will likely to be determined by the five factors listed above. In turn, the attitudes of individuals and organizations are shaped by perceptions and events. Perceptions may be changed through outreach and education efforts, and by the language and images being used to promote points of view. They also may be changed by shifts in the social and economic setting in which debate is taking place.

The most plausible outcome for now will be intense struggles by all interested groups in selling their points of view to the public and shaping reactions to the issues involved.

Reactions by Congress will depend on the shaping and reshaping of constituent attitudes. From there, lawmakers will “keep score” as to how the perceptions of their voters are being molded.

What to expect now is a period of even more intense advocacy as efforts are made by ACA supporters and critics to further pull public perceptions in opposite directions.

The outcome of these struggles is also likely to depend on larger social and economic factors, which are beyond the strict control of the organizations and individuals involved. Debates over the public debt and the federal budget will be one important factor, while changes in economic growth and the stock market will be another. Meanwhile, global conflict also may reshape public perceptions of what is possible, desirable or even deemed worthy of lawmaker’s efforts.

From this perspective, health care is a reflection of what is taking place in the larger society. Strictly speaking, no group or party is in charge of the outcomes, and interests, perceptions and reactions are shaped by internal and external dynamics.

In our opinion, the evolution of the ACA and health care in the U.S. will likely to be characterized by ongoing dispute, struggles and changes over an extended period, with a series of efforts along the way to deal with the most intense pressures of the day.

This piece provides a foundation for others to come over the following weeks and months. As was our intent from the start of this series, we aim to provide attorneys with additional insights so they may more effectively represent clients. Post 17 will further explore the characteristics of various groups and organizations that may be impacted by decisions made with regard to the ACA. Post 18 will apply past lessons to estimate the likely actions to be taken by those promoting various decisions, and potential reactions by groups and organizations. While part 19 will describe the likely outcomes of these actions and 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: