At a business roundtable in Boston last week, the CEO of a major health care provider beseeched a local member of Congress to predict the future of the Affordable Care Act. More to the point, the CEO sought insight regarding what would follow the ACA’s likely repeal. The congressman simply could not say what to expect.
The fate of Obamacare is only the biggest question mark at this moment of rapidly evolving health care law. The impending change of administrations has forced this flux into focus. From the enforcement of privacy protections to prosecutorial priorities, the whole legal landscape faces potentially substantial shifts.
The challenge is acute for attorneys, including those practicing in enforcement and defense matters. Health care clients seek attorney assurances regarding how regulators and prosecutors will view the clients’ activities. Yet forecasting government legal interpretations can be difficult even under well-established law.
Just this week, the U.S. Court of Appeals for the First Circuit reversed the convictions of several defendants in United States v. Tavares, a high profile public corruption case in Boston. The Court concluded “the Government overstepped its bounds” in its interpretation of relevant statutes, and in trying to punish criminally what was not truly a criminal matter.
The decision has already been hailed as a victory for restraining prosecutorial overreach. Tavares, however, also highlighted the freedom that regulators and prosecutors enjoy in applying novel legal interpretations, or existing interpretations in new contexts, subject only to post facto court review.
Against this backdrop, coming (yet undefined) changes in health care law make forecasting government response to any particular situation as complicated as ever. Health care professionals and organizations therefore need to tread as carefully as ever. They may soon find new scrutiny applied to old ways of doing things—or, more simply, that the old rules no longer apply.