Sara Rosenbaum is Chair of the Department of Health Policy and Harold and Jane Hirsh Professor of Health Law and Policy at George Washington University School of Public Health and Health Services. She is heading up a new joint project with the Robert Wood Johnson Foundation tracking health reform implementation, Health Reform GPS. The O’Neill Institute’s Lester Feder spoke with her about the process of turning legislation into policy.
Lester Feder: What happens now that the health reform law and the reconciliation bill have passed?
Sara Rosenbaum: The starting point is understanding that we have a new normal, which I think is an enormous. At one time, health insurance coverage was understood as aspirational: You hoped you got a job that had insurance, you hoped you married someone who had insurance, and if you were a child, your parents hoped that they could get insurance for you.
This is all about to change. It will take a while to phase in, of course, but for the vast majority of the population, the new normal is the expectation of health insurance. Of course, this is not true for everyone, and much work remains to be done to make this expectation universal. This is a foundational change in American society, and not one without speed bumps along the way.
Lester Feder: So what—especially for the legal community—are the steps now in turning this into reality?
Sara Rosenbaum: Health reform is 2,700 pages of law; the process of digesting it is a serious undertaking. Some of the reforms are new law, while some are grafted on to underlying law. All of the new law must be interpreted and explained. Furthermore, once the law is interpreted and explained, it has to be operationalized. Three major federal agencies will bear primary responsibility for implementation, including the Department of Health and Human Services, the Department of Labor, and the Department of the Treasury. Within this troika, HHS probably bears the largest burden. And the workload means probably thousands of new personnel, a problem since Congress has been quite frugal in the amount of money it’s given the federal government to implement reform.
Lester Feder: What are the roles, then, of those three agencies? What’s the difference, and which part of the job does each agency take on?
Sara Rosenbaum: There are several basic moving parts. The first is establishing the exchanges, which go live four years from now, but of course, four years is just around the corner in implementation time. The second are the tremendous changes in Medicare and Medicaid, both of which are good examples of the degree to which existing laws need to change. A third is translating new standards for employer-sponsored plans, insurers, and states. This is the job of all three agencies. A fourth is changes to the tax code for employers, insurers, and health care providers, particularly nonprofit institutions. This will be the job of Treasury. A fifth is implementation of the health care fraud, health care quality, workforce, public health, and access provisions, primarily the responsibility of HHS. A final area worth noting is how all of the above, in particular the new emphasis on clinical and financial integration in the health care marketplace, plays out in terms of the evolution of antitrust enforcement principles.
Lester Feder: How do the states fit into this?
Sara Rosenbaum: States play a leading role in the establishment of exchanges, reforms to the exchange-based health insurance market, and of course, implementation of Medicaid reforms. Today there are about 60 million Medicaid beneficiaries; in four years there will be over 75 million, including some of the poorest and most medically vulnerable adults. How to bring these new beneficiaries into Medicaid and assure appropriate care represents one of the central challenges of reform.
Lester Feder: What about setting up the exchanges on the state level?
Sara Rosenbaum: Exchanges represent a huge challenge, since they are the pathways to coverage for millions of people. And assuring that insurers will participate in the exchange system is a challenge as well. The history of Medicare Advantage and Medicare Part D both suggest that at least early on the participation level will be strong, but how does participation remain sustained over time, particularly in the face of efforts at cost control? This is why I think one can only understand Health Reform as a continuously evolving phenomenon.
Lester Feder: For the legal community, what are the biggest unknowns coming out of this?
Sara Rosenbaum: The first, of course, is the spate of legal challenges to the constitutionality of health reform, which will be dealt with in the coming years. Another is how employers and the insurance industry will respond to a new regulatory environment. Yet another is the extent to which enforcement of new health care fraud and abuse provisions or the new tax law requirements for nonprofit organizations will play out.
Another huge unknown is whether the new health insurance coverage scheme, which involves multiple payers including Medicaid, employer plans, and the individual exchange markets, will be able to respond to an increasingly dynamic and mobile society. Will we be able to achieve stable and continuous coverage?
Asking how health reform will change American life going forward is, of course, like asking fifty years ago how the enactment of Medicaid and Medicare would change society, including the population, health care, and the national economy. Health reform is one of those seminal events that happens every once in a while in a society. It is like dropping a very large stone into the water and watching the ripples go out. Health reform will change the way individuals will relate to health care, the way they relate to their jobs, the way they relate to family members and enter into living arrangements. It will change the way in which employers relate to employees and the interaction between the health care system, patients, and the economy. Ultimately it will affect the way in which the federal and state governments relate to one another. In short, health reform is the type of change that will redefine many relationships in society. The challenge is to use reform as the means by which the federal government, state governments, and markets work together in order to improve health and health care and to minimize the potential risks of reform.
Our new project, Health Reform GPS is designed to chronicle this implementation effort in the coming years and to serve as an information hub as the vast process of change unfolds.
Categories: Legal Issues
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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.