The Obamacare Report (#24) / ACA implementation dominated by late fixes

December 17, 2013

health-care-lawThis is installment #24 in a continuing series of Obamacare Reports.

Almost all programs that attempt to change the U.S. Health Care System result in wide-ranging reactions by interested parties—including various groups of individuals whose interests are affected in differing ways; insurance companies; employers; and all types of providers of care, including physicians and hospitals.

Implementation of the Affordable Care Act (ACA) has resulted in strong reactions by all of these—and other types of organizations—forcing the Department of Health and Human Services (HHS) to delay, reschedule, and revise requirements to “keep implementation moving” and reduce potential backlash. This reaction process is continuing today.

One of the best ways to deal with—and try to guide—such reactions is with a well-planned and strongly-directed communications strategy. Unfortunately, HHS waited until implementation was in its third year before trying to establish such outreach.

As a result, negative reactions to the ACA were already in an advanced stage before efforts were made to improve the situation through communications.

Another way to defuse criticism is by making sure that all program elements function as intended, on schedule. The Health Exchanges were not ready, thus allowing room for more negative reactions to grow.

There was little maneuvering room left to deal with the technology failures, since a “hard deadline” had been widely advertised and no manual alternative had been previously put in place to allow for a phased enrollment procedure.

Given the negative reactions from many organizations, as of the “startup date” of October 1, 2013, another strategy for defusing complaints has been to retroactively attempt to create a phased-in implementation.

The large-employer mandate has been postponed for a year, and states have been asked to let “old” health policies continue for another year (with only mixed results).

In a retroactive fix, expanded use of manual application processing and call center assistance with applications has been expanded. And the Spanish-language version of the federal Exchange has been delayed (until checked out and ready).

Finally, as the January 1, 2014 effective date draws near, wide-ranging adjustments are being made in an attempt to avoid a “crash”. Delays are being introduced across a wide range of program features.

Consumers have been given more time to sign up (until December 23) and to pay for policies (December 31). Insurance companies have even been asked to let people sign up after January 1 with payment to be made in January for policies to be effective on January 1.

Individuals now signed up for high-risk pools are being given until the end of January to transition to new Exchange-based policies.

It may be anticipated that retroactive fixes will continue.

It is tempting to assume that strong controls at the top—by themselves—can produce satisfactory outcomes for complex programs. But unless organizational reactions are factored in, this strategy, by itself, is unlikely to lead to the desired results.

Attorneys can better help clients prepare for new public programs by assessing how all affected organizations are likely to react, and how agencies are then likely to respond—and basing advice in this perspective.

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.