The ACA and the Law (#1) / Lessons for legal practices

April 16, 2014

ACA and the LawThis is installment #1 of a new series of blog postings on the Affordable Care Act and the law.

After more than four years of effort, the Affordable Care Act (ACA) has completed its period of start-up preparation and initial Health Exchange operations. It has been a rough ride, often characterized by inadequate planning, management, and technical skills. The larger environment has involved intense political stress throughout.

Perhaps remarkably, ACA implementation is still moving ahead, although with wide-ranging problems that have yet to be resolved.

Despite some fixes, there are still ongoing technical problems with the Exchanges.

Insurance premiums are fairly high and there are concerns about whether they will stabilize.

Insurance companies are maintaining their caution, with restricted policy offerings and the use of narrow provider networks to maximize cost control.

Providers have yet to be convinced that the ACA will make things better.

In addition, the expanded Medicaid program remains half-implemented, with “coverage gaps” developing for those with limited income.

There are lots of loose ends due to efforts by the Department of Health and Human Services (HHS) and the White House to adapt to pressures created by those who have had complaints about ACA requirements. At the same time, substantial public alienation from the new law and negative attitudes by many remain warning signs.

The good news is that the first round of enrollment can justifiably be called a success by HHS. Implementation skills are improving and public attitudes have been known to shift rapidly.

In this setting, attorneys are becoming more involved in trying to assist clients with ACA-related issues. These clients can include individuals as health consumers, large employers, small-business employers, insurance companies, providers and suppliers, and other types of organizations that are being impacted by the Health Plan.

Dealing effectively with the ACA requires watching what has been happening over the past four years, understanding the lessons that have been demonstrated, and learning how to apply these lessons to the future.

As a result of implementation activities so far, a variety of interesting lessons may be drawn.

The ACA varies in important ways among states and local communities (due to differences in Exchanges—state versus federal—and whether expanded Medicaid has or has not been adopted). The ACA also varies in many ways as time goes by. Therefore, discussions with clients need to be adapted for the setting and period.

The ACA is large and complex, so that “explaining everything” to clients is not feasible or productive. Relevant aspects of the law have to be selected and packaged for discussion. Custom approaches are needed, based on the type of client.

It is important to be able to estimate what problems the ACA is likely to experience in the future, and how HHS may choose to respond to these issues. The responses to date have been based on a strategy of “nurture (put in more resources), bend (to keep from breaking), and delay (to phase in requirements, rather than stick to arbitrary schedules)”. Attorneys can look at schedules and crisis points with some caution, knowing how HHS has responded in the past.

These lessons, and others like them, and their application, will be explored in this series of blog postings.

These postings will link together what has been happening, the lessons that may be drawn, and what all of this means for more effective legal practices.

The approaches taken for these postings are illustrated in two recent books–on the ACA and on the health care system. Related discussions may also be found on an ACA Blog. These materials have been prepared by the author of this series.

The health care system is seen as a mix of individuals, groups, and organizations all struggling to protect and pursue their own interests. The actual trajectory followed by ACA implementation is the result of all of these activities.

The lessons learned are based on the ongoing struggles in this arena. The suggestions for legal practices are thus grounded in the reality of the situation.