The ACA and Legal Practices (#4) / The Affordable Care Act is still trying to launch

May 28, 2014

health-care-lawThis is installment #4 in a series of blog postings on the Affordable Care Act (ACA) and legal practices.

The ACA has survived the initial enrollment period in a limited way, but is far from launched as an operating program.

The ACA Exchanges are in a state of turmoil.

The federal Exchange is still subject to intense fix-up efforts to improve consumer experiences, confirm that subsidies are correct, improve reporting to insurance companies, complete other language versions, and implement the Small-Business Health Options Program (SHOP).

These efforts do not meet the minimum standards for transparency required to obtain general acceptance. The public does not understand what is going on behind closed doors.

The state Exchanges are struggling. Some are planning to go out of business, and shift to the federal Exchange. Some want to redesign themselves, while others prefer to simply improve operations that do not yet work well.

Some are just trying to decide how to pay for existing operations, and how to decide what comes next.

Survival of the state Exchanges as intended by the ACA is still up in the air.

On another front, some states have implemented expanded Medicaid programs, but with a variety of problems. Enrollment has often been delayed and data bases filled with various types of errors.

Many new enrollees have not received guidance about how to use the new coverage, while problems with access to care are being experienced in some situations.

Those states that have chosen not to implement expanded Medicaid are often looking for a way to tap into funds without buying into the ACA. Various types of redesigns and waivers are being debated—while a “coverage gap” exists in these states.

There are new efforts to basically turn the Medicaid expansion into state “block grants”.

The moment of truth for the individual mandate is not yet here, but signs are that a significant backlash may take place in early 2015 as uncovered individuals are informed that they have to “pay up” unless they can figure out how to fit into one of the numerous waiver categories.

There will be intense political pressure to postpone these penalties. Individuals may be given so many options that, in effect, there is no individual mandate left.

The large-employer mandate has been put off until 2015 (for employers with 100 or more employees) and until 2016 (for employers with 50 to 99 employees), but this has only served to postpone a day of reckoning.

This mandate may have to slip again, both because of political pressure and because of continuing information-handling problems.

Providers continue to “bulk up” and strengthen their ability to force changes in the ACA. It is yet to be seen how the program will respond to a full-court press from these providers.

Insurance companies are trying to look ahead and figure out how to maximize income and profits based on how the ACA has worked to date, and how it is likely to work over the next few years.

These companies are pushing hard on the Department of Health and Human Services (HHS) to underwrite any bad experiences, and enable good financial returns. Unless they get what they want, they may pull back from offering Qualified Health Plans (QHPs).

The result is a program that is still trying to take shape and launch, and is far from having resolved the organizational pressures from the groups being affected by the ACA.

As attorneys give advice to clients, they may need to deal with a range of “scenarios” for “what may happen”, rather than projections of “what seems to be intended” (based on the rules in place for the moment).

As confusion grows, there may be growing pressure for a major statutory intervention to redesign the ACA. Or, decisions made “on the fly” may continue to produce the same result.

Approaches to assisting clients in this environment have been illustrated in two recent books–on the ACA and on the health care system. Related discussions may also be found on an ACA Blog