Tag Archives: Robert Laszewski

Deconstructing the Health Care Administrative State

14 Monday Aug 2017

Posted by in Health Care, Obamacare

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A leftist friend chided me early this year for my foolish optimism about repeal and replacement of Obamacare. I have to give her credit. She said the GOP did not have a viable plan — I’m sure she meant that both as a matter of policy and politics. I pointed to the several “plans” that were extant at the time, and even some that I thought might soon be formalized as legislation. I wrote off her skepticism as a failure on her part to understand an approach to health care policy less statist than the Affordable Care Act (ACA). Like so many on the left, she probably has trouble conceiving of any plan not relying on centralized control. Apparently, quite a few Republicans share that blind spot. Nevertheless, I was certainly naive about the prospects of getting anything through Congress quickly.

But the battle is not lost, even now. It should be obvious to everyone, as Michael Tanner notes, that the health care debate is far from over. The individual insurance market is in bad shape, reeling from the unfavorable balance of risks created by community rating, mandated coverage and guaranteed issue. As Robert Laszewski notes, the attrition in the individual market is dominated by individuals not eligible for Obamacare subsidies. While legislation is a much longer shot than I imagined back in January, there remain a variety of ways in which Obamacare’s most deleterious provisions can be neutralized and replaced to create a more market-oriented environment. And though it’s too bad that it might come to this, as the situation continues to devolve, new legislation might gain viability.

Tanner mentions a variety of administrative decisions sitting squarely in the hands of the Trump Administration: insurance company subsidies? congressional exemption from Obamacare? promotion of open enrollment? enforcing the individual mandate? And there are many others. Tim Huelskamp provides a link to The Heartland Institute‘s “complete healthcare reform toolbox“. He says:

“During congressional testimony in March, my former House colleague and HHS Secretary Tom Price pointed out that the law offers him multiple opportunities to do just that: ‘Fourteen hundred and forty-two times … the secretary ‘shall’ or the secretary ‘may” make changes to the Affordable Care Act. The Price is right! Under Obamacare, he has tremendous power and latitude not only to dismantle the ACA but to replace it with health care options that enhance individual freedom.

Let Americans pick their doctors, choose a ‘skinny’ health insurance plan, or even purchase a plan from a company based in another state. The Trump administration can waive penalties on individuals and businesses who simply can’t afford Obama’s mandates.  HHS can give a green light to any state that wants to begin restoring choice and freedom for their citizens without federal bureaucrat interference.“

Another productive avenue is deregulation of health care providers themselves. One of the worst aspects of the ACA is its reliance on so-called Accountable Care Organizations (ACOs), which were intended to encourage greater cooperation and efficiency among providers. The reality is that the ACO rules imposed by HHS are leading to higher costs, greater financial risk and increased concentration in the provision of medical care. Patients, also, are often penalized by the monopolizing effects, and because they might not be able to continue seeing the doctor of their choice under the limits of the health plans available. Moreover, the ACA infringes upon the doctor-patient relationship by restricting the doctor’s authority and the patient’s choices about tests and treatments that can be provided. Many of these rules and restrictions can be undone by administrative action.

Finally, before we completely dismiss the possibility of a legislative solution, there is a new Republican health care bill to consider in the Senate. However, it is just as limited in its reforms, or more, than the bill that passed in the House and the one that failed in the Senate. It’s unlikely to go anywhere soon. There could be later opportunities to consider various pieces of reform legislation, especially if the Trump Administration makes good on its promises to roll back administrative rules put in place to implement the ACA. Sadly, for now we wait in vain for legislators and President Trump to overcome the intellectual failure at the root of the inaction on ending Obamacare. The lesson is that in human affairs, central planning doesn’t work!

Benefit Mandates Bar Interstate Competition

30 Thursday Mar 2017

Posted by in competition, Health Care

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The lack of interstate competition in health insurance does not benefit consumers, but promoting that kind of competition requires steps that are not widely appreciated. Most of those steps must take place at the state level. In fact, it is not well known that it is already legal for states to jointly create interstate “compacts” under Obamacare, though none have done so.

The chief problem is that states regulate insurance carriers and the policies they offer in a variety of ways. Coverage mandates vary from state to state, as do rules governing the coverage of pre-existing conditions, renewability, dependents, costs, and risk rating. John Seiler, writing at the Foundation for Economic Education, offers a great perspective on the fractured character of state regulations. Incumbent insurers within a state have natural advantages due to their existing relationships with local providers. Between the difficulty of forming a new network and the costs of customizing policies and obtaining approval in multiple states, there are significant barriers to entry at state lines.

Federalism is a principle I often support, but state benefit mandates and other regulations are perverse examples because they restrict the otherwise voluntary and victimless choices available to a state’s consumers. Well, victimless except perhaps for in-state monopolists and their cronyist protectors in state government. Many powers are reserved to states under the Constitution, while the powers of the federal government are strictly limited. That’s well and good unless state governments infringe on the rights of individuals protected by the Constitution. In particular, the Commerce Clause prohibits state governments from obstructing the flow of interstate commerce.

Here is a bit of history surrounding the evolution of state versus federal control over insurance markets, as told by Pennsylvania Insurance Commissioner Teresa Miller (as quoted by reporter Steve Esack):

“Since the 1800s, the U.S. Supreme Court held individual states, not Congress, had the power to regulate insurance companies. The high court overturned that precedent, however, in a 1944 ruling, United States v. South-Eastern Underwriters, that said insurance sales constituted interstate trade and Congress could regulate insurance under the U.S. Constitution’s Commerce Clause.

But states cried foul. In response, Congress passed and President Harry S. Truman in 1945 signed the McCarran-Ferguson Act to grant a limited anti-trust provision so states could keep regulating insurance carriers. The law does not preclude cross-border sales. It means insurance companies must abide by different sets of rules and regulations and laws in 50 states.“

Congress obviously recognized that state regulation of health insurance would create monopoly power and restrain trade, even if states place bridles on insurers and impose ostensible consumer protections. The solution was to exempt health insurers from broad federal regulation and anti-trust prosecution by the Department of Justice.

Last week, the House of Representatives passed a bill that would repeal McCarran-Ferguson for health insurers. However, that would do little to encourage cross-border competition as long as the tangle of state mandates and other regulations remain in place. The regulatory landscape would have to change under this kind of federal legislation, but how that would happen is an open question. Could court challenges be brought against state regulators and coverage mandates as anti-competitive? Would anti-trust actions be brought against incumbent carriers?

Robert Laszewski has strong objections to any new law that would allow interstate sales of health insurance as long as state benefit mandates remain in place for “local legacy” carriers. In particular, he believes it would encourage “cherry picking” of the best risks by market entrants who would be free of the mandates. Many of the healthiest individuals would jump at the chance to purchase stripped down, catastrophic coverage. That would leave the legacy carriers under the burden of mandates and deteriorating risk pools. Would states do this to their incumbent insurers without prodding by the courts? Would they simply drop the mandates? I doubt it.

No matter the end-state, there is likely to be a contentious transition. Promoting interstate competition in the health insurance market is a laudable goal, but it is not as simple as some health-care reformers would have us believe. Real competition requires action by states to eliminate or liberalize regulations on benefit mandates, risk-rating and pre-existing conditions. Ultimately, the cost of coverage for high-risk individuals might have to be subsidized, whether means-tested or not, through a combination of support from the states, the federal government, and private charities. And of course, interstate competition really does requires repeal of the health insurance provisions of McCarran-Ferguson.

Governments at any level can act against the well-being of consumers, despite the acknowledged benefits of decentralized governance over central control. Benefit mandates, whether imposed at the federal or state levels, are inimical to consumer choice, competition, efficient pricing, and often to the very concept of insurance. Those aren’t the sort of purposes federalism was intended to serve.

White House Spins Weak Obamacare Enrollments

24 Monday Aug 2015

Posted by in Markets, Obamacare

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The Obama Administration is trying desperately to burnish the record of the President’s signature “achievement”, the Affordable Care Act (ACA), a.k.a. Obamacare.  That’s a tall order, unless the subject is the ACA’s remarkable triumph for excellence in high cronyism. Otherwise, little wonder that they tell only part of the Obamacare story. Robert Laszewski recently examined ACA’s enrollment in more detail and found the record rather dismal. He notes the following:

“… the Obama administration is just reporting the good news and a good share of the press appears to be happy to pass these numbers along–albeit in a technically correct but hardly complete way.“

Here are two examples provided by Laszewski:

  • The Rand Corporation reported that a net total of 16.9 million people were newly enrolled through February 2015. This was picked up by the press, which attributed the increase to Obamacare. But only 4.1 million of those newly insured came from the individual marketplaces (as noted by Rand). Most of those eligible for coverage through the marketplaces have not enrolled. Most of those who have enrolled were qualified for subsidies. Another 6.5 million came from Medicaid, which is free to those who qualify for that program. 9.6 million came from employer-provided plans, which has much to do with improved hiring over the past two years, as opposed to the ACA.
  • There were almost 950,000 new enrollees during the “special enrollment period” (after open enrollments ended) this year. This was heralded by the media, but little was said about the 1.3 million who dropped off the Obamacare rolls by the end of March. That number will grow once the administration comes clean on the number who have dropped coverage since then.

From Laszewski:

“The Obamacare insurance exchanges aren’t enrolling anywhere near the number of people they were supposed to. And, there is no proof Obamacare has grown since the close of open enrollment. In fact the anecdotal and historical evidence would suggest it is now shrinking.“

Going forward, the prospects for ACA enrollment are not good. As Slate belatedly reported last month, substantial premium increases are expected for 2016. The Heartland Institute‘s “Somewhat Reasonable” blog reports that “Millions of Americans Refuse to Buy Obamacare, Prefer to Pay Penalty“. The total who have refused is 7.5 million, much more than expected, while another 12 million people have claimed that they are exempt from the ACA’s requirements. Obamacare pricing and subsidies contain perverse incentives. It remains to be seen whether the insurers dominating the exchanges will have a sufficient number of young, healthy individuals enrolled and paying inflated premiums to offset the claims of more heavily-subsidized, high-risk enrollees.

There are many other problems plaguing Obamacare, including limited access to health care providers for many enrollees. Reason.com recently asked whether Obamacare is simply too complex to work, a question based largely on the findings of an HHS Inspector General’s report. There are massive issues related to verification of eligibility for subsidies and back-end payment systems for compensating insurers:

“Think of it this way: Before Obamacare, the U.S. health system was like a giant tangled knot. If you’ve ever tried to untangle a big knot, you know that it can take a while, and that the trick is to patiently loosen one bit at a time.

Obamacare’s designers, in contrast, saw that they couldn’t undo the knot, so they added more string, and tied it into the knot that was already there. Now it’s an even bigger mess.“

The so-called Obamacare success story is wishful thinking and shameless propaganda. It has failed to accomplish its goals in terms of coverage and especially cost, it has resulted in lost coverage to millions in the individual market who “liked their plans”, and it has caused millions of others who “liked their doctors” to lose their doctors. Things are not looking any rosier as we approach the implementation of the employer mandate (which was delayed twice) in 2016.

There are many ideas in play for improving health care coverage and access post-Obamacare. Here are summaries of the plans floated so far by Republican Presidential candidates Scott Walker and Marco Rubio. Though neither plan is a detailed as I’d like, some of the proposed high-level features are promising, at least relative to the ACA. There will be more proposals from other candidates before long. I’m hopeful that they will all remember to let markets work.

More Unpleasant Obamacare Arithmetic

15 Monday Jun 2015

Posted by in Obamacare, Uncategorized

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States with expanded Medicaid eligibility may be more vulnerable to adverse selection, hastening the death spiral of their Obamacare insurance exchanges relative to states without expanded Medicaid. This is because 1) the expanded, eligible Medicaid population is young, and 2) pricing (net of subsidies) and benefits on the exchanges encourage sicker individuals to purchase plans with richer benefits. The Political Calculations blog presents this case in “How Medicaid’s Expansion Tips the Scales Against Obamacare“:

“… we observe that the states that did not expand their Medicaid programs have a much larger share of their ACA-enrollment occurring in the lower-tier metal plans that would tend to be favored by healthier individuals. Meanwhile, in the states that expanded the enrollment of their Medicaid programs under the law, we find that a significantly larger portion of their ACA enrollments were in the plans that would be favored by less healthy individuals.

In fact, we see that in Medicaid expansion states, 13.2% of their ACA enrollment occurred in the highest-tier Gold and Platinum level plans, while non-Medicaid expansion states saw 7.7% of their enrollment for these highest tiers of health insurance coverage.

The seemingly small 5.5% difference between these two figures becomes exceptionally significant when you consider how extremely concentrated health care expenditures are in the United States, where just 5% of U.S. patients are responsible for generating 50% of all health care spending in the nation.“

It will be difficult to confirm this hypothesis using data on premium increases, or actual exchange failure, until the temporary risk corridors and transitional reinsurance program expire. However, this year, several of the states in which proposed premium increases are the largest have expanded Medicaid eligibility. Robert Laszewski has a good discussion about some the reasons for the large premium increases in Forbes. It’s early and there are signs that it will get worse.

As noted last week on this blog, Medicaid itself does not stack up well in terms of how highly it is valued by recipients and the moral hazard inherent in the program. Here we see an additional bug: expanded Medicaid appears to siphoning away younger potential enrollees from the exchanges in those states, worsening the problem of adverse selection, which will negatively affect their claims experience.

Consequentialists Dismiss Obamacare Consequences

15 Sunday Feb 2015

Posted by in Obamacare

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The King vs. Burwell case now before the U.S. Supreme Court turns on whether the Affordable Care Act (ACA, or Obamacare) authorizes the payment of federal subsidies to consumers in states that do not sponsor their own state health insurance exchanges (up to 37 states, by some counts, depending on how certain “hybrid” exchanges are treated). In those states, Obamacare must be purchased on the federal (or a hybrid) exchange. Proponents of the law strongly desire the court to uphold the subsidies. However, the “plain language” of the law states that tax credits apply only to insurance purchased “through an Exchange established by the state.” That language does not appear to support the governments position in the case. In addition, one of the chief architects of the ACA, Jonathan Gruber, seemingly exposed the real intent of this provision:

“What’s important to remember politically about this is if you’re a state and you don’t set up an exchange, that means your citizens don’t get their tax credits — but your citizens still pay the taxes that support this bill. So you’re essentially saying [to] your citizens you’re going to pay all the taxes to help all the other states in the country. I hope that that’s a blatant enough political reality that states will get their act together and realize there are billions of dollars at stake here in setting up these exchanges.”

Who could have given a better description of the motive?

Others insist that the awkward language in the ACA on this point might have been a typographical error, that the tax credits were intended to subsidize purchases on any exchange, and that other wording in the legislation makes the legislative intent “ambiguous” at worst. Harvard law professor Laurence Tribe subscribes to this view. Tribe argues elsewhere that a ruling which finds federal-exchange subsidies illegal would throw the health insurance market into turmoil. Thus, taking a “consequentialist” approach, Tribe argues that the court should be reluctant to disrupt the market by ruling that subsidies were intended to be unavailable to states without exchanges under the ACA. This conveniently dismisses the fact that Obamacare itself has had and will continue to have so many negative “consequences.”

Obviously, not all agree that a ruling against the government would be such a travesty. A victory for the King plaintiffs would not increase anyone’s premiums. What it would do is prevent the IRS from shifting the burden of those premiums from enrollees to taxpayers. According to  Michael Cannon,  arguments against the plaintiff’s case have:

“… misrepresented the impact of a potential ruling for the plaintiffs by ignoring three crucial facts: (1) a victory for the Halbig [and King] plaintiffs would increase no one’s premiums, (2) if federal-Exchange enrollees lose subsidies, it is because those subsidies are, and always were, illegal, and (3) the winners under such a ruling would outnumber the losers by more than ten to one.”

Nevertheless, the  consequentialist argument suggests that the court might be reluctant to rule against the government in the absence of a viable and immediate alternative to Obamacare. That belief helped motivate the most recent GOP plan, sponsored by Senators Richard Burr, Orin Hatch and Representative Fred Upton, which is due for a vote in the House of Representatives next week. This alternative has been called “Obamacare Lite” by some GOP critics, and it does retain a few of the most popular Obamacare provisions. However, it eliminates some highly intrusive aspects of the ACA (the individual and employer mandates) and attempts greater reliance on markets to control costs. This review in the Washington Free Beacon is mostly favorable. Peter Suderman at Reason explains that the proposal would involve tax credits designed to promote affordability, but they would be less distorting and less generous than under the ACA. Here is a fairly complete but mixed review of the GOP alternative.by Robert Laszewski:

“My sense is that voters will end up liking parts of both Republican and Democratic ideas. They might ask a reasonable question: Why can’t we take the best from both sides? If Democrats would just admit Obamacare needs some pretty big fixes, and Republicans would be willing to work on making those fixes by putting some of these good ideas on the table, the American people would be a lot better off. In fact, I am hopeful that this is eventually what will happen once Obamacare’s failings become even more clear (particularly the real premium costs) and both sides come to understand that neither will have a unilateral political upper hand.”

Laszewski is critical of the plan’s potential for creating a new set of winners and losers, but his objection losses sight of the fact that distortions in the ACA create so many winners and losers as to be indefensible. For example, the ACA limits differences in age rating, effectively transferring wealth from younger premium payers to much wealthier seniors, while the GOP plan loosens those limits. Similar distortions were created by Obamacare’s mandates, taxes, lack of choice in health coverage, revocation of individual coverage, poorly designed provider incentives and reduced physician reimbursements, to give a short list.

I like many of the ideas in the Republican plan, but it is a compromise. Its reforms should reduce the cost of coverage. It increases choice, leverages market incentives, and reduces tax distortions, including the tax advantage of employer-provided coverage. At the same time, it wholly or partially retains ACA provisions that make coverage more affordable at low incomes and provide continuous coverage for those with pre-existing conditions. It also encourages the creation of state pools for high-risk individuals. These provisions might or might not  mollify “consequentialist” sentiment on the Supreme Court, leading to a majority ruling against the government in King vs. Burwell. If not, and while the question before the court is more narrow, the irony would be for the court to uphold the many destructive consequences of Obamacare.