The ACA and Legal Practices (#2) / Health care as a local activity

April 30, 2014

health-care-lawThis is installment #2 of a series of blog postings on the Affordable Care Act (ACA) and legal practices.

The ACA started out to be a more-or-less uniform national program. However, it has turned out to vary substantially from one place to another. Both state and local differences are pronounced.

Looking at the variations among states, some states have implemented their own Health Exchanges, while most have relied on the federal Exchange. Some state Exchanges have worked well, while others have not. The federal Exchange started out as a non-performer, but managed to largely recover.

Only 14 states and Washington, D.C. have chosen to prepare their own Exchanges, so far. Some of these have been successes, but others have been self-labeled to date as failures.

About half of the states have implemented the expanded Medicaid program, while half have not. Some of the latter are still locked in political debates over what to do now. In states without the expansion, there is a “coverage gap” for people who do not have enough income to qualify for an Exchange subsidy.

Thus, state-level differences often depend on the type of Exchange in use (federal or state), whether or not the expanded Medicaid program has been adopted, which insurance companies are selling policies in the state, and how the state insurance regulator has responded to an option to allow the sale of “old style” policies for another year or two, as announced by the Department of Health and Human Services (HHS).

ACA implementation also varies locally, depending on the specific providers in the area (such as physician groups and hospitals) and how insurance companies have chosen to become locally involved. Medicaid is supposed to be uniform statewide, but even here local providers affect the services available.

Local differences often involve provider arrangements that have evolved in response to specific settings and opportunities, local administrative resources, public attitudes and needs, and relationships between the local community and state-level organizations.

Ultimately, the health care system may be seen as a local activity, with certain aspects subject to broad national and state directions and constraints. This lesson can be of significant help to attorneys in their legal practices.

In order to decide how all aspects of the ACA fit together, an attorney may gather information about each level. Some national information and state information may be available online. Local information will often require “getting out and around” to collect first-hand impressions.

An attorney may then decide how to combine the information about these three levels, in order to prepare a “working description” of the local situation.

ACA implementation typically varies with time at all of these levels. It is generally important to “line up” the descriptive materials so that they are associated with the same time period.

One approach to dealing with the local nature of ACA implementation and related legal practice issues can be based on an examination of the health care organizations in a community of interest. This approach starts out with a national perspective of the ACA. State and local differences are then treated as “actions” that change the local organizational “reactions” to the ACA.

In turn, the ways in which local organizations react determine the legal practice issues that develop in the community.

ACA activities result in changes in health care organizations, which in turn give rise to legal practice issues. This insight can be of use to attorneys as they survey the national, state and local situations. A focus on how health care organizations are being affected can be a useful way to identify legal practice issues that are developing.

Methods for treating variations in ACA implementation based on location and over time are described in Chapter 16 of a recent book on the ACA. How the ACA fits into the larger health care system is covered in a companion book and on an ACA Blog All of these materials have been prepared by the author of this series.

By using these and other materials, attorneys can better describe local conditions and changes over time. More effective advice may then be provided to clients.