By Lynn Shapiro Snyder. Reproduced with permission from BNA’s Health Care Policy Report, 18 HCPR 680 (May 3, 2010). Copyright 2010 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
Health reform is a process, not an outcome. The health care industry needs to treat Phase II of health reform—–implementation by the Executive Branch—with the same focus and zeal as they did with Phase I—deliberation and passage by the Legislative Branch. It may not be as sexy as Capitol Hill but industry participation in shaping implementation through the Executive Branch could have an even greater impact for industry efforts. Phase II is when the rubber of ‘‘the law’’ meets the road of ‘‘the real world.’’ We are one month into implementation so now is the time for the health care industry to step up to the plate and continue to shape the details of federal health reform currently being developed and implemented by the Executive Branch.
As with any topic of public policy, proposed laws are discussed in Congress. Final laws are sent to the Executive Branch for interpretation and rulemaking within something called ‘‘congressional intent.’’ Public comments hopefully are considered by the relevant agencies writing the regulations. Challenges to the regulatory process may occur when the regulations go too far from the words and intent of the statute. Eventually, issues may be sent back to Congress to amend the law. The federal Medicare program has worked this way for over 43 years.
However, in the implementation of federal health reform, we are seeing new creative elements to the implementation process. The Obama administration is asking industry to take steps that are not in the statute. For example, on April 19 Department of Health and Human Services Secretary Kathleen Sebelius sent letters to health insurance companies asking them to continue to cover young adults so that they can remain on their parents’ policies notwithstanding the terms of the policies (18 HCPR 604, 4/26/10). This health reform provision does not take effect until Sept. 23, 2010. She was seeking
collaboration with industry on a topic that could make sense for all involved.
Sebelius also recently sent a letter to the health insurance industry trade group, America’s Health Insurance Plans, challenging the group’s interpretation of a section of the statute related to the coverage for children with pre-existing health conditions even before any regulations were published (18 HCPR 469, 4/5/10). The statute appears to nullify pre-existing illness exclusion contractual provisions for enrolled children later this year but there was a question whether guaranteed issue of health insurance for these and other children had to wait until after 2013. Nevertheless, the administration obtained a promise from private health insurers for guaranteed issue this year for this particular population notwithstanding what some believe are the words in the statute.
Successful implementation of the 2000+ pages of the federal health reform law requires collaboration between the Executive Branch and the health care industry stakeholders. This is because the law is based upon actions to be taken by key health care industry stakeholders, such as health insurers to increase access, and health care providers to achieve Medicare savings.
And since we never had a federal department of health insurance before this new law—health insurance had been regulated mostly at the state level—the Executive Branch’s need for continuous public input and collaboration with industry is even more compelling. The same is true for some of the creative new pilot programs designed to customize the Medicare payments for certain providers.
A big part of implementation is in the Executive Branch’s federal rulemaking activities. That is when the public has the formal opportunity to collaborate with the administration on federal health reform. Not all provisions in the recently enacted Patient Protection and Affordable Care Act (Pub. L. No. 111-148) and its companion, the Health Care and Education Reconciliation Act (Pub. L. No. 111-152), require a federal regulation. Some provisions are self-executing while others specifically require a designated federal official to publish regulations on a particular topic. For other provisions, it depends.