This is Part 18 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.

 

Over the past six months, proposed revisions to the Affordable Care Act (ACA) by Congress have been stymied by actual—and threatened—reactions by the groups to be affected. Efforts to pass national changes in the ACA have met with both immediate political resistance and the threat of strong implementation reactions for any proposal that should become law.

Congress has wilted under the pressure and is seeking another way forward. Much of the current discussion involves change efforts centered around more delegation to the states. The thought is that this may help redirect reactions away from Congress to state-level legislatures and agencies.

Many attorneys are tracking proposed changes in health care in order to provide the most effective advice to clients. As described in part 17, an understanding of the likely outcomes of these changes may often be best obtained through an assessment of the major groups and organizations that are likely to be affected by various actions.

Attorneys may best anticipate program outcomes by exploring how proposed actions are likely to impact the groups and organizations most affected, and how subsequent reactions are likely to change program results. If more decisions are delegated to the states, some of these reactions will be redirected away from Congress, and will require state-level assessments.

Helpful insights into all types of reactions may be gained from qualitative approaches to analysis that make use of concepts that extend beyond the artificial assignment of numerical values to describe actions and reactions. Less regimented approaches may be more realistic. For example, depending on the setting, program breadth may be described as {very broad/somewhat broad/somewhat narrow/very narrow} instead of by numbers that artificially imply unwarranted accuracy in predictions. As applied in our writing on the subject (cited below), other characteristics of program actions and likely group reactions may be described in similar ways.

Republican proposals like the American Health Care Act (AHCA) (discussed in part nine of this series) would have a broad national impact, leading to national, consolidated reactions. Elimination of the individual and employer mandates, removal of many requirements placed on insurance policies, and phase-out of expanded Medicaid would affect the fundamental operation of today’s health care system for essentially everyone.

The “skinny” or limited-scope reform put forward by the Senate Republicans narrowed its focus by dropping Medicaid reform, but still would weaken some insurance coverage protections for those with individual or group private health insurance. This more limited proposal still involved national changes and resulted in reactions directed toward Congress.

The delegation of decision to the states could provide a way for Congress to escape from some of the political pressures that have been roused. Reactions could be partially fragmented and redirected. This would allow Republicans to promote their support of state-level flexibility while also reducing the direct group reactions that have prevented action to date.

At the same time, states could apply action-reaction analysis to help design their own program versions that could better achieve intended outcomes.

 

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

Part Seventeen

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