King v Burwell Decision Teaches Sad Lesson in Law Making

In case you’re living under a hole (in the healthcare world we call that in the middle of an EHR implementation), the Supreme Court ruled on King v Burwell today. You can read the 47 page document here if you’re interested in the details of the decision. If you’ve ever read a Scalia decision or dissent, then you’ll know what to expect in his dissenting comments.

The reality is that the decision essentially made it a non-event. If they’d decided the other direction, then there would be a lot of scrambling to mitigate the damage of having all the federal health exchanges not be subsidized. That didn’t happen and so ACA (Obamacare) will continue on as before.

I won’t dive into the good and bad of ACA or the efforts to keep it around or get rid of it here. However, the one big takeaway I have from reading the SCOTUS decision is that the law making process is really awful. At one point in the decision they even reference a quote that “we need to pass the law to see what’s in it” which I’m told is a common phrase in Washington. The decision also commented on how the law was poorly crafted because it wasn’t put through the regular congressional procedures.

I understand that the US government has hundreds of years of overhead that they’re dealing with when making laws. A lot of the procedures likely play a critical role in the law making process. However, I feel that the law making process has accrued so much complexity that it makes everything a challenge.

In the tech world we call this situation “technical debt.” Over time as you’re programming a piece of software, you accrue so much technical debt that making changes on the existing code base becomes really expensive. The solution in the software world is often to recode the software from scratch. It’s almost like declaring bankruptcy and starting from scratch.

The SCOTUS decision highlights to me how much legislative debt our government has accrued in their processes. Unfortunately, they can’t declare bankruptcy and start over without the debt. That’s just not feasible or reasonable.

Since I live in the healthcare IT world, we’ve seen a lot of this “debt” impact legislation like meaningful use. We’re going to see more of it around value based reimbursement and ACOs as the healthcare payment world evolves. Government involvement is a reality in healthcare for many reasons including the government being one of the biggest healthcare “customers.” There can be a lot of benefits that come from government involvement, but there can also be a lot of challenges and loopholes that can snag you. That’s the lesson I’m taking from the King v Burwell decision.

About the author

John Lynn

John Lynn

John Lynn is the Founder of the HealthcareScene.com, a network of leading Healthcare IT resources. The flagship blog, Healthcare IT Today, contains over 13,000 articles with over half of the articles written by John. These EMR and Healthcare IT related articles have been viewed over 20 million times.

John manages Healthcare IT Central, the leading career Health IT job board. He also organizes the first of its kind conference and community focused on healthcare marketing, Healthcare and IT Marketing Conference, and a healthcare IT conference, EXPO.health, focused on practical healthcare IT innovation. John is an advisor to multiple healthcare IT companies. John is highly involved in social media, and in addition to his blogs can be found on Twitter: @techguy.

5 Comments

  • Excellent post, John.
    I think we should all be saddened by how laws are passed in our country.

    You nailed it right here “hat the law making process is really awful. At one point in the decision they even reference a quote that “we need to pass the law to see what’s in it” which I’m told is a common phrase in Washington. The decision also commented on how the law was poorly crafted because it wasn’t put through the regular congressional procedures.”

    Why do we tolerate this from elected officials?

  • A few thoughts:

    1. Pass it, etc. Pelosi claims she meant is something like, you have to plug it in and turn it on to appreciate what it will do, not that it was designed to be obscure.

    2. Complexity. The complaints are valid, but not entirely. Any attempt to address a major national problem, especially one that remained unchanged for generations, has to take into account the incredibly complex nature of our economy, the reach of our geography, and our federal system. In health insurance’s case, it also required an approach that would not automatically get the opposition to it. TR, FDR, Truman, Ike, Nixon and Clinton all tried to make substantial changes and were hammered by the AMA, etc. Obama opted against a single payer system partly to get one that could pass.

    3. Legislative texts. That’s not to say that legislation is obscure only due to the nation’s complexity. Two factors are at work. First there are lobby groups who often draft legislation and hand it to a willing member of congress. These are often written to prevent others from understanding what’s going on.

    Finally, there is a culture among those who draft laws that it has to be prolix, redundant and self referential so some judge won’t misinterpret it. And yes, that’s contradictory.

    There are those in the plain language and plain English movement, who want to changes things, but don’t hold your breath.

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