The interests of critics and advocates are difficult to assess – as the Supreme Court debates a ruling on the new Health Plan

April 27, 2012

HealthcareThe new Health Plan is producing widespread conflict among individuals and organizations affected by the ongoing redesign of the Health Care System (as discussed in Legal Practice Implications of the New U.S. National Health Care Plan, 2011-2012 Edition, by Mitchell and Mitchell, published by Thomson Reuters/Westlaw).

As a result of distractions over the past year due to the pending Court ruling, extensive delays have resulted in implementation of the Plan, and the ongoing political debate between critics and advocates has drawn essentially all individuals and organizations in the U.S. into a struggle over the Plan. 

However, the interests of those involved are difficult to assess, and exist at several levels.

On the surface, advocates of the Plan prefer to have the Plan found entirely constitutional, so implementation can proceed and succeed, while critics prefer to have the Plan found entirely unconstitutional, so it will be terminated and fail. 

However, there are some possible interests in the Supreme Court decision that are not immediately obvious.

Over the past two years, the initial implementation of the Plan had encountered many obstacles.

From a positive perspective, major insurance companies often were significantly involved in development of the Plan, and were in a position to “hit the ground running” as soon as the Plan became law.

And because of long-evolving structural and financial challenges being experienced for years, hospitals and large group practices are already focused on efforts to develop large organizations with diversity and strength to help control their own futures.

However, from negative perspective, initial implementation of the Plan has been deeply flawed.  Federal agencies responsible for national implementation of the Plan have failed to mount the massive communications; outreach; developmental efforts; and leadership required in order to achieve Plan objectives. 

They have seemed to be absorbed with routine procedures and planning rather than getting the Plan “up and running”.

In turn, state agencies have been stymied by the lack of strong implementation leadership and intense political pressures, which have tended to prevent productive activity. 

As “front line” agencies, they have often fallen into waiting modes.  As a result of this inaction by federal and state agencies, the Health Exchange has experienced a notable “failure to thrive”.

Widespread conflict and delays have prevented these new organizations from developing rapidly, in order to assume active leadership roles during implementation of the Plan.

Other organizations have been caught between planning and waiting. Large employers have done lots of benefit-cost studies and strategic tradeoffs, but have mostly adopted “wait and see” attitudes on the sidelines.

Small-business employers have experienced a lack of outside encouragement, and have generally sought to avoid potential risks through inaction.

And throughout this period, individuals as health consumers have been largely “left in the dark”, without the massive public outreach that was needed from agencies. They have been only vaguely aware of the Plan and generally have no idea how they might be affected by the Plan.

Public opinion has been largely shaped by media “sound bites” presented by advocates or critics of the Plan, which have failed to provide a “factual and personal center” to which individuals could turn. This lack of outreach has continued throughout the two-year initial implementation period.

If the Plan is found unconstitutional, those who have advocated for the Plan, but who have nevertheless worried about its implementation in the present toxic political environment, may actually be relieved that there is an excuse to terminate the Plan.

Those who have attacked the Plan, and who seem to have an interest in seeing the Plan fail, may actually prefer to have the Plan found fully constitutional, so that advocates will still have to try and implement the Plan while critics continue their attacks.

Thus, based on these conflicting interests, it is not clear how advocates and critics will ultimately feel about the pending Supreme Court ruling.

No matter what ruling is handed down, the U.S. Health Care System is in for an extended period of trauma, while still immersed in highly partisan attacks and counter-attacks in the aftermath of the ruling.

The stresses and strains are likely to affect the quality and cost of health care services; adding to the complexity of the situation will be the emerging primary interests by all individuals and organizations—yet to surface—and how these will affect operations of a traumatized Health Care System.


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