The Trump administration's decision to support eliminating the entire Affordable Care Act has riled lawmakers and industry alike as they navigate the line between politics and the potential practical impact of the lawsuit.
The Justice Department's politically volatile move last week to agree with a Texas judge's ruling against the law sparked a political firestorm not likely to end soon in the ramp-up to 2020 elections. It has already inspired calls for a GOP replacement plan.
But as the case wends its way through the 5th U.S. Circuit Court of Appeals, and potentially the U.S. Supreme Court after that, healthcare business goes on as usual across the country and likely will continue to do so as legal experts are skeptical the lawsuit will succeed.
"From my perspective, anything that would happen to the law is at best a year away," said Dave Schreiner, CEO of Katherine Shaw Bethea Hospital, an 80-bed rural facility in Dixon, Ill. He is also the chair of the American Hospital Association's Section for Small or Rural Hospitals. "It's hard from a strategy perspective to react to anything like that."
Last week, just after the Justice Department made its statement, Schreiner held a three-year strategic planning retreat with his board of directors.
"The ACA was not part of that discussion," he said.
Instead, the organization's discussion delved into the Trump administration's regulations that touch industry's day-to-day operations — such as last year's regulation to cut Medicare Part B reimbursement to 340B hospitals and setting some Medicare site-neutral payment rates.
"Those have the opportunity to impact us very urgently and negatively," Schreiner told Modern Healthcare, noting the 340B drug discount program in particular.
But in Washington, the industry trade groups on the front-lines of policy battles say there is plenty of reason to worry or at least keep their guard up.
"The important thing for the industry is to keep in mind the old saw about, 'Don't listen to what they say, watch what they do,'" said Chip Kahn, president and CEO of the Federation of American Hospitals. "And that being the case, this position is a reminder that the administration ultimately supports policies that are likely to mean less coverage rather than more. And we need to prepare ourselves for that to continue."
Ceci Connolly, president and CEO of the Alliance of Community Health Plans which represents not-for-profit insurers, is also taking the administration's position extremely seriously. On Monday her group filed an amicus brief in the lawsuit on Monday, supporting the ACA and the Democratic state attorneys general who will defend it.
America's Health Insurance Plans (AHIP), the American Medical Association and the American Hospital Association also filed amicus briefs on Monday.
"If you look at small nonprofits, we don't have a lot of extra dollars to spend on filing court briefs, so I think this indicates how seriously we are taking this threat — that we have taken this step to articulate, we hope very clearly, to the court that this would be incredibly detrimental on so many levels," Connolly said.
She called the president's move a "complete game-changer, with no replacement plan."
Axios over the weekend reported that President Donald Trump doesn't expect the lawsuit to succeed and made the move out of political considerations. Joseph Antos of the American Enterprise Institute characterized the lawsuit move as a "particularly awkward play" aimed at Trump's political base and the administration's approach as a "short track to nowhere."
Last week, Trump over Twitter and in Congress declared the Republican party the "party of healthcare," and promised a new and better plan, although Republicans failed to pass a replacement in 2017 when they controlled both chambers of Congress.
The gap between political rhetoric around the lawsuit and what's likely to happen next makes for a confusing landscape for GOP lawmakers to navigate.
Sen. Susan Collins (R-Maine), a moderate, urged Attorney General William Barr in a letter Monday to reject the administration's stance on the Obamacare lawsuit.
"This surprising decision goes well beyond the position taken by the department last June, and puts at risk not only critical consumer provisions such as those protecting individuals suffering from pre-existing conditions, but also other important provisions of that law," Collins wrote to Barr.
Sen. Roy Blunt (R-Mo.), a member of Republican leadership in the Senate, last week emphasized that the lawsuit's fate depends on the 5th Circuit rather than the president.
"From my point of view, I don't want to presuppose what the courts are going to do," he said. "Certainly the Court of Appeals has the entire record that is not dependent on the government's arguing its past position."
On the regulatory side, the administration is pushing for industry-specific policies on healthcare ,including site-neutral payment policies and 340B cuts, as well as policies hospitals favor like rolling back Medicare redtape.
Not all of the rules are partisan: the site-neutral payments in particular have bipartisan support from policy analysts.
On the insurance front, the White House has homed in on expanding association health plans and short-term, limited duration plans.
But industry representatives in Washington, who watch those regulations for their impact on profits, characterize the president's stance on the lawsuit as part of the regulatory picture.
"When you couple (the lawsuit) with other efforts on association health plans and short-term plans, you begin to have a higher degree of concern," Connolly said.
Kahn also argued that the administration's regulations are in line with its strategy on the lawsuit.
"I think when you look at the different issues (around the regulations), I don't think my concern about this lawsuit necessarily overshadows my concern about any of those other matters," he said. "There's a strategic reason why the president chose to take this position on the lawsuit, and it reflects a policy that HHS carries out every day, in its attitude toward coverage provisions of the ACA."
