King v Burwell Decision Teaches Sad Lesson in Law Making

Posted on June 25, 2015 I Written By

John Lynn is the Founder of the blog network which currently consists of 10 blogs containing over 8000 articles with John having written over 4000 of the articles himself. These EMR and Healthcare IT related articles have been viewed over 16 million times. John also manages Healthcare IT Central and Healthcare IT Today, the leading career Health IT job board and blog. John is co-founder of and John is highly involved in social media, and in addition to his blogs can also be found on Twitter: @techguy and @ehrandhit and LinkedIn.

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.