This is the first post in an ongoing series regarding changes in health care that may take place—and actual changes that do take place—with the new 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.

Changes in health care are high on the Trump agenda. Some changes, such as the repeal and replacement of Obamacare (the Affordable Care Act, or ACA), have been highly promoted, and appear to be priorities for both the new president and Republicans in Congress.

Other potential changes, such as converting Medicare to a voucher program and Medicaid to block grants to the states, have been more narrowly suggested but do not appear to have broad, across-the-board support for now.

Other areas of potential changes may also surface. Many physicians and patients have been complaining about the decline in personal conversations as part of care, as there is a shift to the detailed electronic medical records demanded by HIPAA (Health Insurance Portability and Accountability Act), HITECH (Health Information Technology for Economic and Clinical Health), and the ACA. There are complaints that patient visits now take place with physicians typing into computer terminals while occasionally glancing toward patients, and that the feeling of personal contact has been lost. With the emphasis by the Trump administration on reductions in regulations, these laws may also be revised.

In addition, changes to the Veterans Administration (VA) are likely to be made. More responsiveness to patients and increases in patient options for care have both been promised.

However, all of these possible changes (and others) run the risk of creating new problems, even as they attempt to reduce or eliminate old problems. The ACA was handicapped by strategies that focused only on top-down directives from designers, without consideration of how public reactions would help reshape program outcomes. The assumption was made by Congress and the White House that they only had to tell people what to do, and actions would be taken as ordered. There was no consideration of how reactions by the people affected might (and did) reshape program outcomes.

Program results were far from those expected; many people became disenchanted; and political life was given to the “repeal and replace” movement.

Several key lessons have been drawn from the design and implementation of the ACA, and can be used to help anticipate the likely results from changes planned by the Trump administration. If new program changes continue to be based on decisions that neglect likely public reactions to these changes, outcomes are likely to be quite different from those intended. It is not yet clear whether this insight is going to make its way into the design of new program efforts.

Some of the lessons learned from the original ACA are that:

(1) the public pushes back when financial interests are placed at risk;

(2) people prefer choices over mandates;

(3) technical and administrative problems are to be expected;

(4) standard cost-benefit studies are a poor basis for policy decisions; and

(5) program success or failure depends on timing.

The reactions by those affected typically reflect these lessons learned from past efforts, and methods are now available to anticipate reactions, based on these lessons.

These five lessons provide insight into what we should expect for 2017 and may be kept in mind by all attorneys as new programs and program changes are discussed and become law.

We will evaluate potential and actual changes in health care as they are considered by the Trump administration and Congress (and the states). If the lessons learned from the past are folded into designs, the outcomes may be close to expectations; if not, we should expect new political firestorms that reshape program outcomes.

This series will track the stated objectives of changes, suggest how actual implementation is likely to proceed, track program progress and compare stated objectives with actual outcomes. Based on realistic expectations, attorneys can better represent clients. Legal practices can anticipate outcomes based on real-world situations, rather than plan responses based only on stated program objectives. An emphasis on probable outcomes can lead to more effective legal action—and fewer surprises.

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.

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

Please follow and like us:
Pin Share