Predictions for Healthcare in a Trump Era

Neda M. Ryan, Esq.
Compliance Counsel, Anesthesia Business Consultants, Jackson, MI 

 Healthcare has been the talking point for generations, but its presence has been even more pronounced since President Obama’s election in 2008. Such discussions have revolved around passing comprehensive healthcare reform, passing the Affordable Care Act (ACA or “Obamacare”), repealing the ACA and replacing it with the American Health Care Act of 2017 (H.R. 1628) (AHCA) and failing to secure the votes to pass the AHCA in the House of Representatives. There have also been discussions regarding the future of healthcare enforcement, information technology security and transgender health protections. The common thread passing through each of these issues today is: what’s next?

Defeat of the American Healthcare Act

When President Trump was elected, industry stakeholders predicted the ACA would be repealed and replaced (many predicting in the first 100 days of President Trump’s administration). However, the House of Representatives Republicans were unable to pass their healthcare reform bill—the AHCA. In his remarks, Speaker Ryan said, “we will be living with Obamacare for the foreseeable future.” While President Trump says he has not put healthcare completely to the side, he said he will focus on his next priority: tax reform. So, with all of these shocking developments, many are left to wonder whether the ACA will, in fact, be comprehensively replaced. The answer: it is unlikely.

According to most Republicans, and as stated by President Trump, Obamacare “is imploding and soon will explode.” In the Wall Street Journal, Aetna’s CEO said the ACA was in a “death spiral.” As it stands, it is expected that insurance premiums will continue to increase and many of the larger insurance companies will pull out of the exchanges in 2018, thereby creating fewer healthcare coverage options for many Americans from which to choose.

Unfortunately, Congress is stuck in its own death spiral: the blame game over who will own the fate of the ACA. Republicans will continue to blame Democrats for passing the law seven years ago, while Democrats will blame Republicans for failing to come up with a viable alternative, all while knowing the law’s fate. What we do know is that this was a huge loss for Republicans and whether they will muster the courage (and votes) to propose another bill is yet to be seen.

Healthcare Enforcement

Healthcare enforcement has been on a steady and steep rise over the years, especially in light of the government’s expanded enforcement power under the ACA. In its most recent Semiannual Report to Congress, the U.S. Department of Health and Human Services (HHS) Office of Inspector General (OIG) sought to recover $5.66 billion in investigative and audit receivables. This is $2.31 billion more than was recovered in 2015. Some question whether President Trump’s recent hiring freeze and focus on enforcement elsewhere (think: immigration) will impact healthcare enforcement. The answer: it is unlikely.

Although on January 23, 2017 President Trump issued a memorandum instituting a hiring freeze, the impact of it on healthcare enforcement is debatable. The statement of the hiring freeze was immediately followed by numerous exceptions, including those positions deemed by the head of the executive department or agency as “necessary to meet...public safety responsibilities,” as well as “those exemptions [that] are otherwise necessary” as deemed by the director of the Office of Personnel Management. Moreover, the memorandum “does not prohibit making reallocations to meet the highest priority needs...” In other words, so long as the positions are deemed necessary and/or agencies reallocate their resources to meet their highest priority needs, this hiring freeze will have limited impact on various agencies, including those that enforce healthcare-related laws and regulations.

On the campaign trail, then-candidate Trump was vociferous about his concerns with our current immigration system, vehemently expressing his desire to deport “bad hombres.” In fact, it was on this platform that he rose to such prominence and popularity in the early days of his campaign and, ultimately, won the election. Many question whether his public focus on our country’s immigration system will limit the Administration’s focus on healthcare enforcement. Although we expect to see a sharp spike in immigration-related enforcement, because of the great revenue generated by the OIG in recent years (and the rate at which such revenue generation has increased), the healthcare industry should expect the Trump Administration to continue the Obama Administration’s fervent enforcement of healthcare-related laws regulations.

Accordingly, anesthesiologists should continue to remain vigilant in their efforts to achieve, and remain, compliant with all laws and regulations affecting their practices, and to develop and improve their compliance plans furthering those efforts.

Information Technology Security

Hack. It has become the new buzzword in recent years. From repeated hacks of Yahoo’s and other companies' email platforms and hacks during the 2016 presidential election to recent hacks of the CIA, one thing is clear: hacking is at an all-time high. And the healthcare industry is more exposed than ever.

Historically, healthcare entities have been most vulnerable for attacks because they have spent the least on IT security. Put bluntly, despite the Health Insurance Portability and Accountability Act of 1996 (HIPAA), IT security has not generally been a priority in the healthcare space. While hacking and IT security are not matters of high priority to President Trump (though some may argue the jury is still out on that point), this is still an issue facing the Trump Administration. It is estimated that $1 billion was extorted from individuals and companies through ransomware attacks in 2016 alone, with this number growing rapidly each year. Therefore, it is imperative that all healthcare providers, anesthesia providers included, at a minimum, take the following steps:

• Understand which laws and regulations affect their practices’ information (e.g., HIPAA, state data privacy and security laws, etc.);
• Conduct a risk assessment; adopt and/or update existing policies and procedures addressing deficiencies found during the risk assessment that are consistent with current law, regulations and industry standards; 
• Conduct penetration tests to determine the IT system’s susceptibility to attacks;
• Regularly educate employees and staff regarding safe IT and email habits; and
• Ensure all anti-virus and malware software is up-to-date.

Transgender Health Issues

President Obama made it clear that transgender issues, including health issues, were an area of focus for his Administration, an area believed best to be addressed by the federal government. Through actions such as the joint guidance issued by the U.S. Departments of Education and Justice and Section 1557 of the ACA, the Obama Administration made known its position on transgender discrimination issues. The Trump Administration views these issues, and the role of the federal government in them, differently, stating, in part, that these issues are best left for the states to address on a case-by-case basis.

In May 2016, the Departments of Education and Justice issued a joint statement directing public schools to permit students to use the bathrooms matching their gender identities (Joint Statement).¹ In response, 12 states filed suit and were granted an injunction, which prevented the federal government from taking adverse action against those schools that refused to follow the directives in the Joint Statement. President Obama’s Justice Department appealed the injunction. In February 2017, the Trump Administration both rescinded the Joint Statement² and elected to withdraw the government’s challenge to the injunction. While perceived as a victory for opponents of President Obama’s actions, proponents of the effort saw this as a step backward in our nation’s efforts toward equality for all people regardless of gender or gender identity.

When enacted, Section 1557 of the ACA made it impermissible for federally funded healthcare programs and activities to discriminate against patients and members of the public on the basis of race, color, national origin, sex, age or disability. In issuing its regulations in May 2016, the HHS Office of Civil Rights (OCR) defined “sex” to include gender identity and sex stereotyping. In other words, the regulations prohibit sex-specific services from being denied because an individual identifies with a gender other than their biological gender. The regulations also prohibit the “categorical exclusion” of health services related to gender transition.

On December 31, 2016, the U.S. District Court for the Northern District of Texas issued an opinion in Franciscan Alliance, Inc., et al v. Burwell enjoining  HHS from enforcing the portions of Section 1557 that prohibit discrimination on the basis of gender identity or termination of pregnancy. Although this opinion was issued during President Obama’s presidency, even if it was appealed during President Obama’s term, it would be likely that the Trump Administration would withdraw the government’s defense of the action as it did in the case involving the Joint Statement.

Though unlikely to change or encourage changing existing law that specifically affords certain gender and gender identity-related protections, it is clear that keeping in place Obama-era efforts is not a Trump Administration priority.

Conclusion

Healthcare in 2017 continues to evolve aggressively, showing no signs of relief. In both politically charged and non-politically charged arenas, it is clear that healthcare will continue to be one of the government’s focuses. Whether the political stakeholders can take action is yet to be seen. However, political disputes notwithstanding, anesthesiologists can best position themselves by keeping abreast of rapid changes as well as ensuring they are currently compliant and meeting the standards for best practices in both compliance and IT security.

¹ https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-title-ix-transgender.pdf
² http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201702-title-ix.docx

Neda M. Ryan, Esq. serves as Compliance Counsel for Anesthesia Business Consultants. Ms. Ryan has experience in all areas of healthcare law, including healthcare transactional and corporate matters; healthcare litigation matters; providing counsel regarding compliance and reimbursement matters; and third party payer audit appeals. She can be reached at (517) 787-7432 or Neda.Ryan@AnesthesiaLLC.com.