Not Fake News! A Trump Administration Rule Models Government Civility


A Trump administration regulation issued just hours before the partial federal shutdown offers quiet hope for civility in government.

What happened, on its face, was simple: an update of the rules governing a particular Medicare program. In today’s dyspeptic political climate, however, what didn’t happen along the way was truly remarkable – and may even offer some lessons for surviving the roller-coaster year ahead.

A regulatory process directly connected to Obamacare and billions in federal spending played out with ideological rhetoric completely absent. And while there were fervid objections to the draft rule from those affected, the final version reflected something that used to be commonplace: compromise.

Think of it as Survivor being replaced by Mr. Smith Goes to Washington. Or, perhaps, a small opening in the wall of partisan conflict.

More on that in a moment. First, let’s briefly examine the specifics.

The Medicare regulation involves a section of the Affordable Care Act (ACA) focused on accountable care organizations (ACOs). That’s an arrangement that puts together doctors, hospitals and others to improve quality and reduce costs by better coordinating care. Despite the obscurity of the jargon, the rule was a big deal. It affected hundreds of ACOs, major corporations like UnitedHealth and Aetna, millions of Medicare beneficiaries and more than $100 billion in federal spending.

To entice providers to voluntarily form an ACO when the program began operating in 2012, the Centers for Medicare & Medicaid Services (CMS) gave most ACOs a temporary “can’t lose” deal. If an ACO hit the cost-and-quality target based on its patient population, it split the winnings with the government. But if it didn’t achieve its goals, there’d be no penalty.

Critics, however, increasingly complained that taxpayers were getting shortchanged. CMS, they said, was not forcing ACOs quickly enough into a situation where their performance either generated savings or generated a check to the government.

Enter the Trump administration.

In a draft regulation set out this summer, the “can’t lose” deal time was slashed and the financial risk for failure was dialed up. In response, groups representing insurers, physicians, hospitals and others promptly warned that the severity of the changes would drive away participants in droves.

Here’s where it gets interesting. The way the script usually reads, you’d expect Democrats to accuse the administration of trying to use regulations to kill off part of Obamacare. Republicans, meanwhile, could be expected to hail the demise of one more liberal bad idea.

Instead, the tough love tactics drew praise from such unlikely sources as a former Obama-era CMS chief. However, CMS nonetheless tinkered quietly with the technical language that had drawn accusations of overkill. While the ACO industry was far from totally satisfied, regulators seem to have avoided crossing the line between “push” and “punitive.”

Are there broader lessons here? Let me suggest three to bear in mind as partisanship escalates.

First, all political appointees can’t be painted with the same brush. Some committed conservatives are as open to dialogue as their liberal predecessors. Compromise is definitely not assured, but neither is constant conflict.

Second, there are important areas of bipartisan consensus, such as ACOs, even with issues as divisive as health care. For example, the concept of paying providers based on cost and quality goes back to the 1980s. Attempts to translate that idea into policy began under President George W. Bush and have continued since then with bipartisan support from both the legislative and executive branches.

Finally, if you’re not tied to tribal loyalty, the right thing to do isn’t always obvious. I’ve researched ACOs in depth, but I still found myself alternating between respecting and suspecting the various arguments proffered for and against the draft.

With luck, the ultimate winners here will be people like the retired Texas couple I interviewed at their mobile home park. As members of an ACO, they were regularly contacted about their ills by a nurse from a nearby town.

Meanwhile, if you want to look forward to 2019 with optimism, consider that the same attentiveness to the public interest epitomized by the ACO rule could be happening right now elsewhere in government.

Michael L. Millenson is president of Health Quality Advisors LLC, adjunct associate professor of medicine at Northwestern University Feinberg School of Medicine and associate editor of THCB. This post originally appeared in Forbes here