December 24, 2013
2013 has been a difficult year for implementation of the Affordable Care Act (ACA).
Some of the problems have been self-inflicted by the Department of Health and Human Services (HHS) —including inadequate communications and outreach throughout; failures to complete regulations and directives sufficiently early to meet schedules; and failures to adequately manage the required technology for the online Exchanges.
Other problems have resulted from political conflict and have been largely unresolvable, such as having only 14 states decide to set up their own Exchanges, and only about half of the states decide to implement the expanded Medicaid program.
Additional problems have been embedded in the initial ACA statutes, so were largely unavoidable after passage of the Act. In this category were requirements for many individuals to shift from prior health insurance coverage (in 2013) to new Qualified Health Plans (QHPs) in 2014. The result has often been increases in premium costs even with subsidies factored in; large deductibles for many policies; and restrictions placed on insureds to obtain care through “narrower” provider networks, so insurance companies can better control costs.
At present, there seems to be an opportunity for “get-well” efforts to resolve many of the self-inflicted problems.
The political problems may also be gradually drained of some energy, as implementation proceeds. In 2014, more states may decide to implement their own Exchanges and accept the expanded Medicaid program. There are a number of state efforts underway to seek HHS permission to modify the Medicaid expansion to be more “palatable”.
However, the problems embedded in the ACA statutes (the basic design of the ACA) may prove to be less tractable. Higher premiums and deductibles, and narrower networks for many, may result in continuing hostility toward the ACA. Temporary fixes may only postpone these issues until 2014.
Finally, there is the “elephant in the room”: large-employer coverage under the ACA is likely to become a major subject of debate in 2014, as employers prepare for the (postponed) 2015 implementation of the large-employer mandate. Since large numbers of people have health insurance through employment, these activities are likely to create a backlash.
In some ways, the most intractable problems for 2014 will be those associated with redesign of the Health Care System—increasing out-of-pocket costs and more controlled access to care.
The ACA was designed to help reduce costs and increase access. Individuals who did not have insurance before will experience increased access; however, others who are transitioning in coverage may experience reduced access. The inevitable result is that fundamental changes will cause many individuals to feel unsettled by the new approach to health care.
It is one thing to talk about change in health care—and another to actually attempt such change. HHS should not expect the public to “move quietly” into a new social contract.
Attorneys may expect further churning and complaints by individuals and organizations as changes continue to be felt.
More on these and related ACA topics, with an in-depth discussion of organizational reactions to implementation issues, may be found in a recent book by the authors that describes evolution of the ACA, and in a new Practice Guide by the authors that addresses funding and access issues in health care.