Mitchell & Mitchell on Health Care and the Trump Agenda, Part 19: Continuing Impact of 2017 “Repeal and Replace” Efforts

This is Part 19 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.

Since Donald Trump took office, the Republicans in Congress have made a concerted effort to “repeal and replace” the Affordable Care Act (ACA) in one way or another. Three different strategies have been tried, without any resultant legislative action by Congress.

During the same period, the Democrats in Congress have been unified in their resistance to Republicans’ “repeal and replace” mantra, and instead, have advocated various financial fixes to the ACA, so far without success.

At this point, it is tempting to consider these efforts to be wasted time, but this is not the case. If such proposals for change are sufficiently high-profile, the mere proposal of new ideas for programs can drive related efforts to achieve change through alternative means.

The impact of such spinoff actions may also be evaluated by drawing on the same action-reaction approaches to analysis that have been discussed in this series of posts.

In one example of such a spinoff activity, while debate continues over potential Congressional action, the Trump administration is moving to revise the ACA through regulatory action. States are likely to be given more freedom to place new requirements on eligibility for Medicaid program assistance. At the same time, insurance companies are likely to be given more freedom with respect to offering a wider variety of policy types. Regulatory requirements placed on insurance coverage for individuals and small businesses are also likely to be loosened.

If Medicaid eligibility requirements become more demanding, program enrollment will likely decrease. If insurance companies are given more flexibility, the cross-subsidies among healthy and sick individuals, and perhaps between younger and older individuals, will become less effective, leading to a fundamental shift away from the standardization and funding methods built into the ACA.

As the result of such regulatory changes, the present ACA-driven health care structure may be relaxed in important ways. Supporters of the ACA see such changes as having the potential to disrupt ACA activities in fundamental ways, causing increasing financial stress and fragmentation in the health care market; as a result, ACA effectiveness and viability may decline. Critics of the ACA see such changes as a long-awaited and overdue relaxation of the overly-regimented requirements of the ACA, introducing needed flexibility into the program.

The results of such changes will vary by state, depending on the actions taken by state legislatures, health care agencies, and insurance agencies, supporting Republican efforts to decrease centralization and allow state customization of health care regulations. Additional spinoff actions may be expected from state agencies, contributing to change actions and reactions.

Another possible area of change includes the fate of the Cost Sharing Reduction (CSR) payments, which are intended to reduce premiums and out-of-pocket payments for low-income individuals buying insurance through Exchanges. As previously discussed in this series, court action has provided a means for stopping the CSR payments, if the President decides to do so. Such a shift would further increase the financial problems facing ACA implementation by reducing these subsidies and increasing costs for those individuals affected.

Through such spinoff actions, ACA “repeal and replace” efforts may evolve into a multipath “revise and reshape” efforts intended to produce outcomes that will fundamentally change the ACA. However, the actual outcomes of such program revisions will depend on the ways in which individuals, groups, and organizations react to the changes. The intended outcomes of such efforts may, in the end, be quite different from those intended. The broad lessons learned from past implementation of the ACA may be used to estimate the likely impact as such non-legislative actions are combined with reactions from all of those affected.

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: