This is the third post in an ongoing series regarding potential 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.

 Proposals of all types are being put forward for repeal and replacement of the Affordable Care Act (ACA). Attorney practices have a lot riding on how these competing ideas are evaluated, since the winning idea is likely to reshape health care practices in the near and long term.

Every proposal should be subjected to testing based on “lessons learned” from the implementation of the ACA since 2010. Based on detailed analysis over this period, we have developed a set of five lessons drawn from past real-world experience.

As discussed in part one of this series, these five key lessons learned involve the impact on financial interests, public preferences, likely types of problems, the best approach to policy decisions, and the importance of timing. Reactions by individuals and organizations to a new strategy will be affected by these factors.

It is also important to decide whether the replacement strategy should be to develop a new and different master plan to replace the ACA; make fine-tuning adjustments to the basic ACA structure going forward; rely on a reduced-scope program that fails to address some of the detailed ACA provisions; or whether to move away from efforts at detailed control over the health care system to more simplified approach, such as the use of tax credits or vouchers with minimum regulation. As discussed in part two, proposals can be sorted into these four categories: preparing an alternative master plan, fine tuning of the ACA, producing a reduced-scale replacement, or shifting to a low-regulation approach to replacement.

There are obvious problems with efforts to prepare a new and better master plan. Such plans tend to be complicated and difficult to implement; such plans may affect the public in complex ways and lead to reactions by individuals and organizations that can drive the outcomes away from those that are expected. Past experience indicates that this is probably not the way to go in the present circumstance. Additionally, a new master plan is not attainable within the action horizon.

Fine-tuning changes to the ACA structure are likely not a sufficient change to meet political expectations, and the interactions among the many parts would prove difficult to reset. A limited-scope replacement of key ACA provision, or a new simplified plan—or a combination thereof—may be the most likely approach to replacement.

Both positive and negative reactions are likely to result from repeal of the ACA and from implementation of a replacement plan. These changes – due to both repeal and replacement actions – will need to be considered carefully. Explicit attention must be paid to negative reactions associated with both loss of the old law and addition of the new law. These reactions will likely reinforce one another.

There is a real danger that current repeal and replacement efforts will not take advantage of the lessons learned from the design and implementation of the original ACA. As changes are attempted, attorneys need to think through how the interests of the individuals and organizations involved may be negatively affected by the changes, and evaluate the types of negative publicity and public complaints that may result. There will be definite practice advantages for those attorneys who can continually examine the changes that are being discussed, anticipate the reactions of those to be affected, and take preemptive efforts to advise clients in advance of likely issues and to prepare strategies for these issues as they arise.

This post was authored 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 (link). Click here to read part one of this series and here for part two.

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