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The Republican-sponsored American Health Care Act’s narrow passage in the U.S. House of Representatives Thursday received little reaction from some lawyers in health care law practices along K Street, mainly because they believe the Obamacare-replacement bill as written has little chance of success in the Senate.

“What everyone recognizes is that, while kudos go to them for threading the needle and getting this out of the House, it’s not going anywhere in the Senate,” says Tom Bulleit, a partner at Ropes & Gray.

And since Senate Democrats have promised a fight, health care companies and their legal departments “shouldn’t do a whole lot more than watch and wait,” said Christine Clements, a partner in Crowell & Moring’s health care group, in an email.

What would be a better use of legal departments’ time, Clements says, is working to implement the market stabilization rule, which is final. The U.S. Department of Health and Human Services and its U.S. Centers for Medicare and Medicaid Services (CMS) finalized the rule in April–part of an attempt to incentivize insurers to stay in the health insurance marketplace while the Trump administration tries its hand at health care reform.

Among other provisions, the rule shortens by six weeks the amount of time individuals have to enroll in health insurance plans in 2018 and allows insurers to deny coverage to someone with prior unpaid premiums. It also loosens rules about the level of coverage required by individual plans and allows states, rather than the federal government, to determine whether the Affordable Care Act marketplaces provide adequate care for their residents.

While there’s currently no urgency surrounding the American Health Care Act, lawyers are advising their clients to “keep your powder dry,” Bulleit said. “When the AHCA was up for consideration before, stakeholders did some thinking about what would need to be done if it became law, but probably didn’t take any drastic steps because the likelihood of it becoming law was not high,” he adds.

“That it has now passed the House doesn’t make it that much more likely to become law in the end, so last month’s thinking about what might need to happen in the uncertain future is probably still good,” Bulleit said.

Stephen Bernstein, global head of McDermott Will & Emery’s health industry practice, offers some practical guidance for health care general counsel. Bernstein says they should:

· Be in touch with and stay close to the business team because it must evaluate the business implications of all the various changes. “For years, the health care system has operated one way, and if this becomes law, a lot of that is going to change,” Bernstein says.

· Evaluate, in the case of companies in the provider space, Medicaid pools to determine patient populations and what reimbursement may look like under the most sweeping changes to the program since its inception in 1965.

· Examine, in the case of large non-health-care companies, the insurance plans offered to employees.

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Kristen Rasmussen

Kristen Rasmussen is an Atlanta-based reporter who covers health care, corporate legal departments and in-house attorneys.

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