If repealing Obamacare is off the table, can we turn attention to improving it through cost-effective clinical protocols?

Paul Krugman recently wrote an article in the New York Times posing the question: if repealing Obamacare is off the table (for now), should people on the “progressive” end of the political spectrum push for a single-payer “Medicare for all” system or just advocate for incremental improvements to the privatized Obamacare model?  He says if we were starting with a blank slate, he would favor the single payer model.  But, he argues, the politics of moving to single payer are too difficult, and the evidence from other countries suggests that a privatized model can achieve comparable outcomes.  Therefore, he argues that progressive politicians should turn their attention to other social policy priorities like subsidized child care and pre-kindergarten education.

I generally agree with Krugman’s proposal to focus on incremental improvements to Obamacare, particularly if the objective is just to maintain and improve access to health insurance.  But that’s not our only objective.  We should also care about the quality and cost of health care.

I’ve long felt that policy to increase access to care should be linked to policy to assure the cost-effectiveness and value of care. Insurance is, by its nature, a collective, cooperative thing. In the long run, the people who are covered under the same insurance risk pool are sharing a finite resource. If they understood that, they would rationally desire for there to be protections against the pooled resource being squandered by other people for low value purposes. In health insurance, such protections primarily take the form of benefit policies. Benefit policies may define which services are not covered because they are considered experimental or cosmetic. They may define limitations based on age, gender, or medical history. They may also set quantity limits on coverage, such as defining the number of physical therapy visits or inpatient psychiatric hospital days covered. They may set lifetime maximum dollar amounts. But, such insurance benefit policies are very blunt instruments.  Insurance companies also protect against low-value uses of health care services using “utilization management” programs, including requiring pre-authorization processes, where doctors are required to submit justifications for proposed services and insurance company employees judge whether the proposed services meet “appropriateness” criteria.  Such utilization management programs create conflict, and insurance companies generally establish criteria that are very loose to minimize the conflict.  As a result, such programs are also very blunt instruments.

Clinical protocols, in contrast, can be more precise instruments, taking into consideration the details of a patient’s clinical situation. Clinical protocols are typically developed by physicians, and are ideally supported by evidence from clinical research studies.  Clinical protocols can take many different forms, and go by different names including “guidelines,” “algorithms,” “care maps,” and “standards of care.”  Whenever we have tried to design clinical protocols, especially for complex and costly care processes such as for low back pain, congestive heart failure, cancer or the care of frail elderly patients, we discovered that different protocols can have very different costs and outcomes.  Thoughtful design, rigorous implementation and continual evaluation and improvement of clinical protocols can lead to large improvements of outcomes and large reductions in cost. But, cost effective protocols do deny some people some treatments that would have helped them a little (just not enough to be “worth” the cost). The whole premise of designing cost-effective protocols depends on the recognition and acceptance of the collective nature of insurance and the finite nature of the resources being shared. Furthermore, it is essential that the people for whom such protocols are applied trust the people and the process of creating and implementing the protocols. In for-profit, commercial insurance companies, there is a fundamental conflict of interest if the owners of the insurance company get to control the design and implementation of the protocols and if they get to keep the money saved from denying services that could have helped people — even a little.

In a single payer system, the entire country (or each state) is treated as a risk pool, and the government plays the role of protocol developer. Some people are OK with that, while others are loathe to assign such authority to governments.  If  we continue to have private insurance companies or accountable care organizations bearing the risk for populations of patients (as in the current Obamacare system), then such organizations can make decisions about clinical protocols.  In either case, we absolutely need to create structures and mechanisms to ensure that the people receiving the care trust the people and process used to create and implement cost-effective protocols.  Some private organizations, such as Group Health Cooperative of Puget Sound (now part of Kaiser Permanente), created some structures and processes designed to build this trust back in the 1990s.

Although most other advanced countries already accept cost-effectiveness and pursue the development and implementation of cost-effective protocols, and although there would be a huge opportunity to reduce cost and improve outcomes by doing so in the U.S., making this policy shift in the U.S. will be very difficult. The U.S. population has been taught to be wary of “rationing” and “death panels” and U.S. doctors have been taught to reject “cookbook medicine.” Nevertheless, moving the health policy discussion in that direction may, in the long term, do some good.   Politicians asking “what’s next” after the apparent end of the quest to repeal Obamacare should consider turning attention to bringing cost-effectiveness to health care through clinical protocols.

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Congressional Budget Office: 27 million will lose coverage and premiums will increase by 50% if repeal ACA without replacement

In my last post, I noted that Congress was eager to repeal Obamacare, but lacked consensus on a replacement.  I noted that Obamacare was designed to cover the sick people and keep premiums affordable through the individual mandate and subsidies.  These two provisions of Obamacare can be reversed through legislative mechanisms that avoid filibusters.  But, removing those provisions, while leaving in place Obamacare’s prohibition of denial for pre-existing conditions creates an unstable insurance market that could lead to an increase in the number of uninsured people, and an increase in the premiums paid by those that continue to be insured.

Today, the Congressional Budget Office published a report offering some non-partisan quantitative estimates of those outcomes:

The clear implication of these projections is that pursuing the repeal of just the portions of Obamacare that can be repealed unilaterally, while leaving in place the popular prohibition of denial of coverage for people with pre-existing conditions would be a disaster.  Hopefully, these projections will help convince Congress to resist the urge to seek quick repeal to appease fervent anti-Obamacare constituents.  Hopefully, Congress will take a breath and take the time to build bi-partisan consensus on a more comprehensive and coherent design for our health care insurance system.

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Are high risk pools really a good replacement for Obamacare architecture?

Congress and the president-elect are enthusiastic about repealing Obamacare, but have not yet achieved any consensus about what to replace it with.  High risk pools figure prominently in various proposals, including Ryan’s “A Better Way” proposal.  But high risk pools are not a new idea.  Thirty five states had them in the years before Obamacare, so we have some experience to draw upon.  In general, they performed poorly, mostly because they were substantially underfunded, leading to high premiums and shameful waiting lists that withheld coverage for the sickest people – those that that needed coverage the most. The following explainer video was prepared last summer by the Kaiser Family Foundation, a health policy think tank.

Sounds Like A Good Idea? High-Risk Pools

High risk pools don’t reduce cost or risk. They just transfer it from private health plan premium payers to taxpayers — mostly state taxpayers. And, if the states fail to fund it properly (as has usually been the case), the wait lists associated with high risk pools creates a particularly cruel mechanism for keeping the most desperate citizens from the lifesaving care they need.

How did Romneycare and Obamacare Avoid the Need for High Risk Pools?

High risk pools consisted of the sickest people in the population. Since sick people incur health care expenses that they can’t afford, the money has to come from somewhere.  It can come from healthier members of the same health plan, from state taxpayers, or from federal taxpayers.  If it is to come from healthier members of the plan, there must enough of such healthy members to share the cost.  The healthy people can’t just wait until they are sick to buy insurance.  If too many healthy people opt out, the premiums for the people in the plan will be too high.  An insurance “death spiral” occurs when high premiums causes some of those healthy members to drop coverage, forcing premiums to go even higher for the remaining healthy members, ultimately leading to the failure of the plan.

So, to achieve coverage for sick people and affordability for all, the health insurance system must be designed to ensure that almost all the healthy people sign up for insurance, and that the healthy people don’t try to wait until they are sick to buy health insurance.   Romneycare and Obamacare attempted to accomplish this through two mechanisms:

  1. A subsidy for premiums for poor people to make them more affordable, and
  2. A “mandate” requiring that everyone have health insurance or pay a penalty.

However, as a political compromise to those that hated the idea of a mandate, the penalties were made quite small, making them only partially effective in getting enough healthy people to join the plan — ultimately causing the premium increases that people point to as evidence that Obamacare is “a disaster.”

Other than high risk pools, what is being proposed as an alternative to Obamacare?

I’ve seen nothing to suggest that there is any new innovation in health care finance that has been proposed as a superior solution.  So, what we’re likely to see is a return to health insurance designs that were used before Romneycare and Obamacare.  These mostly consist of the following:

  1. Reducing taxpayer expense by:
    • Kicking many poor people back out of government funded insurance plans (reversing federal subsidization of Medicaid expansion)
    • Reduce insurance benefits by covering fewer services and shifting more cost to patients for both government funded and private plans (reversing mandatory minimum benefits)
    • Allowing government funded insurance plans to negotiate with drug companies to demand volume discounts (against the wishes of the strong pharma lobby)
    • Increasing competition by reducing state-level insurance regulatory control to allow and facilitate building insurance plans that cut across state lines (against the states’ rights philosophy)
  2. Avoiding the insurance death spiral by:
    • Allowing insurance plans, once again, to reject sick people applying for private health insurance (reinstating pre-existing condition exclusions) and/or
    • High Risk Pools.

However, the president-elect and some members of Congress have claimed to be against some or all of these alternatives.  Except the last one — creating high risk pools. So, I think we’ll be hearing a lot more about that concept over the next few months.  Then, as people learn that high risk pools don’t do any magic and that they have a poor track record, I fear that framers of the “replacement” health insurance system will begin to acknowledge that replacement really means returning back to the other mechanisms listed above.

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A Happy Day: Supreme Court upholds health care reform law granting broad access through mostly free-market mechanisms, and I am $1 richer


This morning, the United States Supreme Court made its landmark decision to uphold the health care reform law.  I am very happy about it for a number of reasons:

  1. I won a $1 bet.  As I described in a previous post, I bet my brother-in-law, an attorney from Chicago, that the law will be upheld.  I will be driving to Chicago this weekend to attend my father’s 75th birthday.  I’ll see my brother in law there.  He’s a trustworthy guy, so I’m confident he’ll pay up.
  2. I was right about the majority argument.  Like my brother-in-law and most of the pundits, I was originally focused on the question of whether the individual mandate provisions of the reform law represented an unconstitutional expansion of the federal government’s power to regulate interstate commerce.  My first blog post on the subject explored that issue.  But, then I read an interesting piece in the Atlantic by Jack Balkin, a constitutional law professor from Yale.  As I explained in my second blog post on the subject, Balkin argued that the penalties associated with the controversial individual mandate should be considered a tax, and are therefore a constitutional exercise of the federal government’s taxing powers.  I found the argument convincing. But I never heard anything more about that line of reasoning until this morning, when we learned that this argument is exactly the one that Chief Justice Roberts made in his majority opinion.
  3. The law was upheld with a minimum of expansion of federal power.  I shared my brother-in-law’s concern that if the law was upheld based on an expansive view of the interstate commerce clause, it would have the effect of dramatically expanding the power of Congress to dictate how we all live our lives, without being constrained by the political unpopularity of raising taxes to pay for it.  But Chief Justice Roberts called a spade a spade. Despite the terminology of the law itself, and despite the repeated assertion by President Obama that the law does not raise taxes, Roberts declared at least the individual mandate penalty to be a tax.  I do still think that the reform bill has the effect of expanding expectations about the role of the federal government in our lives, and so I still have some concern about that.  But, of all the arguments that could be made to uphold the reform law, I think the one Roberts selected is the least bad in terms of expanding government powers.
  4. We can continue the journey toward a more civilized and compassionate health care system.  Almost nobody is asserting that the health care reform law is perfect.  But, in my opinion, it is a step in the right direction.  It is better than creating a government-run monopoly.  It is better than waiting forever for each of 50 states to exercise their authority to compel people to buy health insurance.  It helps millions of Americans have a sense of security. And, it underscores that our strong tradition of individualism is balanced against our sense of duty to one another as Americans and humans.
  5. I am energized to continue health care improvement.  Over the last few years, our field has built up some momentum in transforming health care.  Health care leaders were feeling a sense of urgency to increase their capabilities in population management, analytics, lean process improvement, clinical integration and health information technology.  I feared that if the health care reform law was struck down, it could lead those leaders to relax for a few years to wait and see what comes next.  I am excited by the prospect that our field can continue to build momentum that spills beyond the limited confines of the reform law itself to allow us to make more fundamental progress in the care delivery system itself.
  6. Oh, and did I mention I won a $1 bet?
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If the mandate is a tax, it becomes constitutional. The politically inconvenient argument could provide a way out for the Supreme Court.

In a recent blog post, I attempted to summarize the legal arguments behind the debate about the constitutionality of the health care reform law — as well as I can without the benefit of having any legal education.

Reading the transcript of the testimony to the Supreme Court, and reading some of the news coverage of that testimony, I focused on what appeared to be the main issue: whether the mandate that people buy health insurance represented a violation of the constitutional limits on the enumerated powers of the federal government to regulate interstate commerce.

That focus is grounded on the assumption that this mandate is a type of a penalty, rather than a tax.  This seemed obvious to me for a number of reasons.  First, on the face of it, it seems that its primary purpose is to change behavior, rather than to generate revenue.  Second, the law itself uses the word “penalty” rather than the word “tax.”  Third, President Obama, himself a constitutional law professor and someone who wants his signature achievement to be upheld, repeatedly and explicitly said it was not a tax.  And, finally, all those smart lawyers on both sides of the Supreme Court bench seemed to be taking it for granted that it was not a tax.

But, this week I read an interesting commentary in the Atlantic by another constitutional law professor, Jack Balkin, from Yale.  He argues that the mandate is a tax, and therefore the health care reform law is constitutional.  He joined others making the same argument in one of the zillions of amicus briefs filed in the case.

Balkin argued that, even if the primary purpose of a tax is to regulate behavior, it can still be considered to be a tax.  He pointed out that taxes on polluters are in that category.  In 1950, the Court ruled on this issue in the context of a law taxing marijuana.  That law was designed to keep people from buying or selling the drug. The Court explained that “a tax does not cease to be valid merely because it regulates, discourages, or even definitely deters the activities taxed. The principle applies even though the revenue obtained is obviously negligible . . . or the revenue purpose of the tax may be secondary.”

So, why would all those smart lawyers not focus on the tax argument?

Balkin provided a number of answers.  First, the political optics.  Democrats may have been OK with the idea of taxing rich people to pay for decent health insurance for all.  But, Democrats are getting hammered by Republicans for high taxes and large deficits.  Democrats knew they could not pass health care reform if they admitted it would increase taxes.  So, they took the low road that both Democrats and Republicans seem to prefer.  They purposely designed the law to avoid having to admit they raised taxes.  And, once the health care reform law passed, the Republican opponents of the law did not want to argue it was a tax because that would be admitting that the law was constitutional.

Secondly, the Democrats wanted a quick ruling by the Supreme Court.  The Obama administration was worried that states would delay their preparations for implementation of the law until the constitutional questions were settled.  But, if the mandate was considered to be a tax, then the Tax Anti-Injunction Act would apply.  That Act says that people cannot ask the courts for an injunction against taxes, but must instead pay the tax and then sue the government for a refund.  The law is designed to protect the federal government from being starved of revenue while lots of court cases are pending.  So, if the mandate was a tax, the Supreme court may not be able to take up the case until 2014, when the mandate kicks in. Balkin argues that the Court could assert that the Tax Anti-Injunction Act is merely a protection, but should not be considered as a bar to their jurisdiction.

Balkin seemed to be selling the Supreme Court justices on the idea that upholding the reform law on the grounds that it is a tax would be a good way to avoid the appearance of politicizing the Court through a party-line decision to strike down the law.  And, upholding the law as a tax would also avoid setting a precedent for expanded government powers under the commerce clause.  And, ironically, it could even establish a precedent that Congress would be forced to admit when things are really taxes and face the consequences with voters, thereby serving the interest of limiting the size of government.

An interesting scenario.  We’ll know within a couple of months whether it plays out that way.

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Health care reform with its foot on a banana peel

I enjoy a good wager.  But, my maximum bet, no matter how consequential the topic, is $1.  This weekend, I bet my attorney brother-in-law my maximum bet that the Supreme Court would uphold the health care reform law.

He argued that it was clearly unconstitutional, and reminded me of high school civics lessons about federalism.  The federal government is constitutionally designed to have clearly enumerated, limited powers.  Those powers include the ability to levy taxes.  And, they include the power to regulate inter-state commerce.  But, explained my brother-in-law, they don’t include the power to compel commerce.   So, they can’t make people buy health insurance.   All other powers are retained by the states and by the people.  According to this view, the constitution would allow a state to pass a law mandating that people buy health insurance, as was done in Massachusetts.  And, Congress could have passed a law that created a government-run health program and levied taxes to pay for it, as was done with Medicare.    And, Congress could have passed a law that levied taxes to pay for subsidies for insurance companies to compensate for the losses they would experience from being forced to issue insurance to everyone, regardless of prior medical conditions.  But, the authors of the health care reform legislation apparently felt that increasing taxes was politically infeasible, particularly given growing concerns about unsustainable government deficit spending.

The Supreme Court held three days of oral arguments for the case this week.  The meat of the issue was discussed on day 2, Tuesday, March 22nd.  One hundred and eleven double-spaced pages of discussion that was an interesting read.  Justice Kennedy, the one thought to be the likely swing vote needed to join the more liberal justices in upholding the health care reform law, described the government as being “dishonest” in doing something that required the use of its power to levy taxes without admitting that it was a tax or framing it as a tax.  Kennedy found the health care reform law to be “disturbing” in that it “required the individual to do an affirmative act” in purchasing insurance and entering the market for health care insurance.  He noted that this is against our longstanding legal principles, and pointed out that the law does not even obligate people to save a blind person that they see walking in front of a car (unless they have certain types of relationships with the blind person).  Kennedy argued that the law “changes the relationship of the Federal Government to the individual in a very fundamental way,” and therefore the government should have a “heavy burden of justification.”  Not exactly inspiring confidence that Justice Kennedy intends to be that cross-over vote to uphold the law.

The government’s defense of the reform law was delivered by Solicitor General Donald Verrilli, who delivered amazingly incoherent testimony.  The Justices were grilling Verrilli to explain a “limiting principle” — some concept that applies to this law, but not to other situations so as to prevent this law from establishing a precedent that broadly expands federal government power.  Verrilli argued that, although the law is about health care insurance, insurance only serves the purpose of “financing” health care itself.  So, receiving health care and purchasing health care insurance are tied together.  The government argued that everyone is likely to require health care at some point.  Somehow, from those two points, the government argues that everyone is already in the health insurance market, even before they buy health insurance. So, the law is therefore not compelling someone to enter the health insurance market.  Verrilli argued that the health care market (the one that is inextricably tied to the health insurance market) is distinguished from all other markets in that “people cannot generally control when they enter that market or what they need when they enter that market.”  One after another, the Justices questioned this reasoning and offered many examples of other markets that have the same characteristics, such as the market for burial services.

The liberal Justices tried to come to Verrilli’s rescue.  Justice Ginsberg coached Verrilli that his main argument for the uniqueness of health care was that it is a market where, “even though you have every intent in the world to self-insure, to save for it, when disaster strikes, you may not have the money.  Then, when you need health care, you have no choice whether or not to buy the product.”  Other’s emphasized that the longstanding tradition in our culture is that health care services are delivered without regard to the ability of the sick person to pay. Therefore, one person’s decision to not buy health insurance affects other people.  However, the Justices pointed out that this was true in virtually all markets — if I decide to not buy a car, that affects the economic well-being of the people that work for car companies.

I went into the week confident that the constitutional challenge to the health care reform law was just a bump in the road.  Just a desperate Hail Mary pass by those against health care reform.  But, I’m taking a dollar bill out of my wallet and setting it aside, ready to pay my brother-in-law in case he wins the bet.

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