This is Part 17 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.

Congress has presently halted efforts to change the Affordable Care Act (ACA). As new efforts are mounted, attorneys will need to anticipate likely program outcomes, in order to advise clients.

Understanding how proposed changes to the ACA are likely to unfold starts with consideration of the various groups and organizations that have an interest in the changes. (Continuing failures by the Congressional Budget Office (CBO) to deal with reactions by such groups and organizations are noted at the end of this post.)

In general, all proposals put forward may be expected to have strong bases of supporters and critics aligned in keeping with the common political divides. At the same time, the financial interests of providers, insurance companies and employers will often lead to strong support or resistance to proposals. These organizations are central to present operations of the ACA, and both the base groups and affected organizations play important roles in the formation of health care policies.

Less obvious is the large group of people in what we will call the Great American “Middle Public” (or “GAMP” for short). This group includes those who started out not knowing or caring much about the health care debate, and those who expect that the debate will have little direct impact on their lives.

At present, the GAMP is larger than the base groups where the ACA is concerned. This group may strongly influence the final actions that are taken by Congress and the White House, and how any program implementation is likely to evolve.

The reactions from the GAMP may shift rapidly, depending on the nature of proposals, associated media coverage and public perceptions that develop. These reactions also depend on larger social and financial considerations, such as shifts in the U.S. economy and world events that affect receptiveness and concerns about changes.

Strategies are more likely to be successful if the GAMP is not roused to resist proposed legislation or its implementation. Changes are less likely to be successful if the GAMP becomes highly concerned and politically resists proposals that are put forward.

Revisions to the ACA are thus likely to be more successful if proposals are narrow in scope and emphasize that most people will be unaffected (or affected only in positive ways). Revisions are less likely to be successful if they are broad in scope and are more likely to have broad negative impact.

At present, the Republicans in Congress are largely seeking structural, fundamental changes in the ACA (as captured by the phrase “repeal and replace”). Broad efforts in this direction generally gain the support of most of their base, but may lead to negative reactions from much of the GAMP.

To minimize resistance from the GAMP, proposals for change should instead be narrowly tailored so that most people in this group will not be affected in a negative way.

Republican interests are best served by seeking a series of narrow, incremental changes (that each limit the number of people affected).

At the same time, Democrats in Congress are avoiding large-scale structural  changes to the ACA, opting rather to  fix and adjust key features of the legislation.

Measured against this perspective, proposals put forward by the Republicans to date have been flawed. By playing to their base and seeking broad changes, they have left the field open for the Democrats to rouse the GAMP with concerns over the negative potential impact of such proposals. The Republicans are actually fortunate that such efforts have failed in the legislative arena before implementation efforts could create even longer-term negative reactions.

The original ACA passed by the Democrats coupled broad positive changes (due to more money being available) with broad negative changes (due to mandates and more top-down control of individual options). Even this more balanced approach to change has struggled for seven years to deal with a drumbeat of negative reactions from opposition.

The Democrats have shown more understanding of the group and organizational dynamics that are taking place today, and for now have emphasized more narrow, positive changes that leave little room for Republican attack.

Given this present situation, attorneys can evaluate new health care proposals as they are put forward by analyzing the narrowness or breadth of proposed changes, and by assessing how the groups and organizations involved are likely to react.

It is worthwhile to note that the CBO continues to apply its microsimulation model to prepare estimates of the likely impact of changes in the ACA. However, in its August 15, 2017 report on CSR payments, the CBO acknowledges that its estimates are “inherently imprecise” because it is “difficult to predict” how “affected parties” will “respond to the changes” of interest. Yet, the CBO still has not attempted to produce improved estimates using the methods described here. (See “The Effects of Terminating Payments for Cost-Sharing Reductions,” pp 8-9, available on the CBO website).

 

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:

Part One

Part Two

Part Three

Part Four

Part Five

Part Six

Part Seven

Part Eight

Part Nine

Part Ten

Part Eleven

Part Twelve

Part Thirteen

Part Fourteen

Part Fifteen

Part Sixteen

The views and opinions expressed in this post are those of its authors alone.