Can Congress Make You Buy Broccoli? And Why That’s a Hard Question

By Wendy K. Mariner, J.D., M.P.H., George J. Annas, J.D., M.P.H. (corresponding author), and Leonard H. Glantz, J.D. (From the Department of Health Law, Bioethics, and Human Rights, Boston University School of Public Health)
The New England Journal of Medicine
December 22, 2010

The continuing uncertainty over the constitutionality of the Affordable Care Act (ACA), illustrated by conflicting trial court rulings and scholarly commentaries, raises the question of why this constitutional question is so hard to answer. There are at least four reasons.

(The four reasons are discussed in the article.)

A much easier question to answer is why we’re facing this constitutional turmoil. Why, for example, is there no constitutional fuss over Medicare, Medicaid, or veterans’ health care? These programs raise no constitutional issue because they are government benefit programs funded by taxes, and the Constitution explicitly authorizes Congress to tax and spend for the general welfare. Had the ACA expanded Medicare eligibility to everyone, or created a new government health benefit program, there would be no constitutional issue. The constitutional controversy is the direct result of the insistence by conservative legislators that any health insurance reform must preserve the private insurance industry, which necessitated the addition of the individual mandate that is now being fought in the courts by similarly conservative forces.

http://healthpolicyandreform.nejm.org/?p=13457&query=TOC

Although these views on the constitutionality of Medicare have been discussed by others, including PNHP’s leadership, this NEJM article is of prime importance in the continuing health reform debate because it represents the views of respected ethicist George Annas and his colleagues.

The editor’s decision to use broccoli in the title stems from the comments of Florida’s Judge Vinson who questioned whether Congress could require everyone to buy broccoli. Cute. But that distracts from the fundamental issue that should have been selected for inclusion in the title.

Our founding fathers drafted a Constitution that recognizes the primacy of government in the establishment of benefit programs, and explicitly authorizes Congress to tax and spend for the general welfare. That does not extend to taxing and spending for the welfare of the private insurance industry, especially when that is the most expensive and least efficient model of reform – one that leaves so many out, and creates financial hardship for many more.

Is anyone else ready for a national movement to petition Congress to grant us our right to a government health benefit program for everyone – an improved Medicare for all?

Department of Health and Human Services
Filed December 21, 2010

This document contains proposed regulations implementing the rules for health insurance issuers regarding the disclosure and review of unreasonable premium increases under section 2794 of the Public Health Service Act. The proposed rule would establish a rate review program to ensure that all rate increases that meet or exceed an established threshold are reviewed by a State or HHS to determine whether the rate increases are unreasonable.

Under this approach, if a proposed rate increase equals or exceeds a defined threshold, it would be considered “subject to review.” The review process would then determine if the increase is, in fact, unreasonable.

Rates above the threshold would not be deemed or otherwise determined to be unreasonable in advance of this review. As discussed below, for rate increases filed in a State on or after July 1, 2011, or effective on or after July 1, 2011 in a State that does not require a rate increase to be filed, the threshold for whether rates are subject to review would be whether the average weighted increase in the rate filing, alone or in combination with prior increases in the preceding 12 month period, is 10 percent or more.

In establishing the 10 percent threshold for determining which rates are subject to review, HHS has balanced the wide range of available data on rate and medical trend increases. Our review of the limited data available suggests that the majority of increases in the individual market exceeded 10 percent each year for the past 3 years.

These yearly increases significantly exceed some national measures of medical cost inflation, such as the medical component of the Consumer Price Index, whose inflation has typically ranged from 3.7 percent to 4.4 percent. The Centers for Medicare and Medicaid Services’ National Health Expenditures (NHE) data is another measure of health care cost trends based on overall national health care spending. The five most recent years of available NHE data suggest that overall health care expenditures have increased at an annual rate between 4.4 percent to 6.9 percent. Some commenters suggested using these indices as thresholds for a review of rate increases. Another national index, the Standard & Poor’s Healthcare Economic Commercial Index, also measures insurance rate trends.  The S & P Index measures trends in provider claims costs, which encompasses both unit cost and utilization changes; the trend in that index from September 2009 to September 2010 was 8.5 percent.

The 10 percent threshold established in this regulation exceeds these major indices and in doing so balances industry concerns that any threshold would be over-inclusive with the competing concern that it would subject to review too few rates that may be unreasonable. As we discuss below, when better and more specific data on trends in insurance rates in individual States can be collected, State-specific thresholds would be established.

This approach does not provide for the review of every proposed rate increase, no matter how small, to determine whether it is unreasonable. We recognize that the choice of any threshold makes it inevitable that unreasonable rate increases below the threshold will not be reviewed, and that a proposed increase of less than 10 percent would be unreasonable if the actuarial assumptions underlying the increase were invalid or unreasonable. In proposing this approach, HHS also has taken into consideration the fact that many States, as discussed below, conduct a rate review process for all rate increases without regard to the magnitude of the increase. We expect the number of States conducting such reviews to increase in light of additional resources provided under the rate review grants and passage of State legislation. Therefore, as a practical matter, in a growing number of States, there is even less likelihood that an unreasonable increase below the threshold would be implemented.

In establishing an initial 10 percent threshold for whether a rate increase is subject to review, as discussed below, HHS recognizes that rates, underlying costs, and health care trends vary from State to State.

As discussed below, the State-specific threshold would be based on the same analysis used to develop the initial 10 percent threshold, but would be based on data from the specific State, rather than the national data we analyzed in selecting the proposed 10 percent figure.

Applying this regulation to the large group market would result in a process that is not closely aligned with most State processes upon which the regulation is modeled. In addition, many issuers are not accustomed to submitting proposed rate increases for review in this market. Finally, purchasers in the large group market have greater leverage than those in the individual and small group markets, and therefore may be better able to avoid imposition of unreasonable rate increases. For these reasons, under this proposed regulation, rates in the large group market would not be subject to the rate review process we are proposing.

Proposed regulation (136 pages):
http://www.ofr.gov/OFRUpload/OFRData/2010-32143_PI.pdf

Comment:

By Don McCanne, MD

Besides being sure that everyone is covered by a comprehensive system of financing health care, the other important goal of reform was to slow down the intolerable increases in health care costs. The token cost containment measures included in the legislation will likely have little impact, so attention was given to the false proxy of health care costs: the increases in insurance premiums. So how effective will the proposed regulations be in controlling the inexorable rise in insurance premiums?

To begin with, the regulations cover only the individual market, leaving out the much larger market of employer-sponsored health plans. Since the increases in health care costs have placed an undue burden on employers, and indirectly on their employees, this is a serious omission.

As far as setting a threshold for selecting the level of unreasonable premium increases which would be reviewed, Health and Human Services (HHS) has decided that plans with less than 10 percent premium increases would not be reviewed. That is a level well in excess of measures of medical cost inflation. Imagine compounded premium increases of 9.99 percent per year on top of premiums that are already unaffordable. It is true that the 10 percent threshold may be revised, but the change is to be “based on the same analysis used to develop the initial 10 percent threshold.”

Thus, in assuaging the insurance industry’s fears that “any threshold would be over-inclusive,” HHS has made a decision to allow the private insurance industry to keep jacking up its premium rates at unreasonable and intolerable levels. That is no surprise considering the inadequacy of the measures theoretically designed to control the health care spending that the insurers would have to cover.

We can go back and do it right. We can create a beneficent public monopsony that covers everyone with a financing system that slows health care inflation to a tolerable level: an improved Medicare for all. That has to be better than a 9.9 percent compounded increase in premiums that we would be mandated to pay to the perverse, intrusive private insurance industry.

Rate Increase Disclosure and Review

Department of Health and Human Services
Filed December 21, 2010

This document contains proposed regulations implementing the rules for health insurance issuers regarding the disclosure and review of unreasonable premium increases under section 2794 of the Public Health Service Act. The proposed rule would establish a rate review program to ensure that all rate increases that meet or exceed an established threshold are reviewed by a State or HHS to determine whether the rate increases are unreasonable.

Under this approach, if a proposed rate increase equals or exceeds a defined threshold, it would be considered “subject to review.” The review process would then determine if the increase is, in fact, unreasonable.

Rates above the threshold would not be deemed or otherwise determined to be unreasonable in advance of this review. As discussed below, for rate increases filed in a State on or after July 1, 2011, or effective on or after July 1, 2011 in a State that does not require a rate increase to be filed, the threshold for whether rates are subject to review would be whether the average weighted increase in the rate filing, alone or in combination with prior increases in the preceding 12 month period, is 10 percent or more.

In establishing the 10 percent threshold for determining which rates are subject to review, HHS has balanced the wide range of available data on rate and medical trend increases. Our review of the limited data available suggests that the majority of increases in the individual market exceeded 10 percent each year for the past 3 years.

These yearly increases significantly exceed some national measures of medical cost inflation, such as the medical component of the Consumer Price Index, whose inflation has typically ranged from 3.7 percent to 4.4 percent. The Centers for Medicare and Medicaid Services’ National Health Expenditures (NHE) data is another measure of health care cost trends based on overall national health care spending. The five most recent years of available NHE data suggest that overall health care expenditures have increased at an annual rate between 4.4 percent to 6.9 percent. Some commenters suggested using these indices as thresholds for a review of rate increases. Another national index, the Standard & Poor’s Healthcare Economic Commercial Index, also measures insurance rate trends.  The S & P Index measures trends in provider claims costs, which encompasses both unit cost and utilization changes; the trend in that index from September 2009 to September 2010 was 8.5 percent.

The 10 percent threshold established in this regulation exceeds these major indices and in doing so balances industry concerns that any threshold would be over-inclusive with the competing concern that it would subject to review too few rates that may be unreasonable. As we discuss below, when better and more specific data on trends in insurance rates in individual States can be collected, State-specific thresholds would be established.

This approach does not provide for the review of every proposed rate increase, no matter how small, to determine whether it is unreasonable. We recognize that the choice of any threshold makes it inevitable that unreasonable rate increases below the threshold will not be reviewed, and that a proposed increase of less than 10 percent would be unreasonable if the actuarial assumptions underlying the increase were invalid or unreasonable. In proposing this approach, HHS also has taken into consideration the fact that many States, as discussed below, conduct a rate review process for all rate increases without regard to the magnitude of the increase. We expect the number of States conducting such reviews to increase in light of additional resources provided under the rate review grants and passage of State legislation. Therefore, as a practical matter, in a growing number of States, there is even less likelihood that an unreasonable increase below the threshold would be implemented.

In establishing an initial 10 percent threshold for whether a rate increase is subject to review, as discussed below, HHS recognizes that rates, underlying costs, and health care trends vary from State to State.

As discussed below, the State-specific threshold would be based on the same analysis used to develop the initial 10 percent threshold, but would be based on data from the specific State, rather than the national data we analyzed in selecting the proposed 10 percent figure.

Applying this regulation to the large group market would result in a process that is not closely aligned with most State processes upon which the regulation is modeled. In addition, many issuers are not accustomed to submitting proposed rate increases for review in this market. Finally, purchasers in the large group market have greater leverage than those in the individual and small group markets, and therefore may be better able to avoid imposition of unreasonable rate increases. For these reasons, under this proposed regulation, rates in the large group market would not be subject to the rate review process we are proposing.

Proposed regulation (136 pages):
http://www.ofr.gov/OFRUpload/OFRData/2010-32143_PI.pdf

Besides being sure that everyone is covered by a comprehensive system of financing health care, the other important goal of reform was to slow down the intolerable increases in health care costs. The token cost containment measures included in the legislation will likely have little impact, so attention was given to the false proxy of health care costs: the increases in insurance premiums. So how effective will the proposed regulations be in controlling the inexorable rise in insurance premiums?

To begin with, the regulations cover only the individual market, leaving out the much larger market of employer-sponsored health plans. Since the increases in health care costs have placed an undue burden on employers, and indirectly on their employees, this is a serious omission.

As far as setting a threshold for selecting the level of unreasonable premium increases which would be reviewed, Health and Human Services (HHS) has decided that plans with less than 10 percent premium increases would not be reviewed. That is a level well in excess of measures of medical cost inflation. Imagine compounded premium increases of 9.99 percent per year on top of premiums that are already unaffordable. It is true that the 10 percent threshold may be revised, but the change is to be “based on the same analysis used to develop the initial 10 percent threshold.”

Thus, in assuaging the insurance industry’s fears that “any threshold would be over-inclusive,” HHS has made a decision to allow the private insurance industry to keep jacking up its premium rates at unreasonable and intolerable levels. That is no surprise considering the inadequacy of the measures theoretically designed to control the health care spending that the insurers would have to cover.

We can go back and do it right. We can create a beneficent public monopsony that covers everyone with a financing system that slows health care inflation to a tolerable level: an improved Medicare for all. That has to be better than a 9.9 percent compounded increase in premiums that we would be mandated to pay to the perverse, intrusive private insurance industry.

By Amita Parashar
Kaiser Health News
December 20, 2010

McKinsey and Co., an international consulting company, estimates the number of people residually uninsured will be as high as 40 million in 2016. Dr. Robert Kocher, director of the firm’s Center for U.S. Health System Reform and a former special assistant to President Barack Obama on health care, recently spoke with Kaiser Health News’ Amita Parashar about the center’s estimates and who might not get insured as the health law takes effect.

Q. How did you come up with the figure that 30 million to 40 million people might remain uninsured after the individual mandate kicks in?

A. We built a simulation that allows us to model each county in the country. The model looks at businesses and individuals, coverage flows and changes over time. The model factors in health conditions, incomes, age and can allow one to make forecasts. … It is difficult to predict how big the residually uninsured market will be since it depends on many factors — how effective the individual mandate proves to be, how well auto-enrollment works [a provision of the law that will require large employers to enroll employees in a health plan, unless workers choose to opt-out], and how effectively exchanges and Medicaid programs work to enroll people. Depending on what you believe about these factors leads you to a large range for how many people will be residually uninsured. In some scenarios, that pool may be as large as 30 to 40 million people.

Q. Who are the residually uninsured?

A. There will always be a residual pool of uninsured that includes the following populations: undocumented [foreigners], people between jobs, those who may lose coverage from either changes in income [or from] rolling off of Medicaid. Also, the [people whose employer-based coverage] was dropped but who haven’t yet purchased insurance; those eligible and not enrolled in Medicaid; and those [who have not enrolled in insurance] by choice.

Q. Who do you think will choose to pay the penalty instead of getting insurance?

A. I’m not sure how big that population will be, but I think it’s conceivable that there will be people who are offered employer-sponsored insurance and choose not to take it when they don’t have an alternative and are above the income levels that would allow them to get other options. Naturally, there is going to be turnover, too, as people change jobs or move across state lines. There will be gaps in coverage that will hopefully be easier to remedy than they are today. But there will certainly be people who are in transit in the system, too. And there are some people that ideologically may choose not to get coverage, or to self-insure. While I think that’s going to be a relatively small population, I expect that there will be some that make that choice.

http://www.kaiserhealthnews.org/Checking-In-With/kocher.aspx

Comment:

By Don McCanne, MD

McKinsey and Co. estimates that as many as 30 to 40 million people will still be uninsured after the new health care law goes into affect. Telling people to do something they can’t do – buying subsidized health insurance that they still can’t pay for – will never succeed as a policy to eliminate the uninsured.

Enrollment needs to be automatic for everyone, with an automatic, equitable system of funding that makes it affordable for all – progressive taxes. That’s not such a difficult concept. I’ll bet you could easily solve it right now: an improved (fill in the blank) for all.

Checking In With Dr. Robert Kocher On Who Might Stay Uninsured In Spite Of The Individual Mandate

By Amita Parashar
Kaiser Health News
December 20, 2010

McKinsey and Co., an international consulting company, estimates the number of people residually uninsured will be as high as 40 million in 2016. Dr. Robert Kocher, director of the firm’s Center for U.S. Health System Reform and a former special assistant to President Barack Obama on health care, recently spoke with Kaiser Health News’ Amita Parashar about the center’s estimates and who might not get insured as the health law takes effect.

Q. How did you come up with the figure that 30 million to 40 million people might remain uninsured after the individual mandate kicks in?

A. We built a simulation that allows us to model each county in the country. The model looks at businesses and individuals, coverage flows and changes over time. The model factors in health conditions, incomes, age and can allow one to make forecasts. … It is difficult to predict how big the residually uninsured market will be since it depends on many factors — how effective the individual mandate proves to be, how well auto-enrollment works [a provision of the law that will require large employers to enroll employees in a health plan, unless workers choose to opt-out], and how effectively exchanges and Medicaid programs work to enroll people. Depending on what you believe about these factors leads you to a large range for how many people will be residually uninsured. In some scenarios, that pool may be as large as 30 to 40 million people.

Q. Who are the residually uninsured?

A. There will always be a residual pool of uninsured that includes the following populations: undocumented [foreigners], people between jobs, those who may lose coverage from either changes in income [or from] rolling off of Medicaid. Also, the [people whose employer-based coverage] was dropped but who haven’t yet purchased insurance; those eligible and not enrolled in Medicaid; and those [who have not enrolled in insurance] by choice.

Q. Who do you think will choose to pay the penalty instead of getting insurance?

A. I’m not sure how big that population will be, but I think it’s conceivable that there will be people who are offered employer-sponsored insurance and choose not to take it when they don’t have an alternative and are above the income levels that would allow them to get other options. Naturally, there is going to be turnover, too, as people change jobs or move across state lines. There will be gaps in coverage that will hopefully be easier to remedy than they are today. But there will certainly be people who are in transit in the system, too. And there are some people that ideologically may choose not to get coverage, or to self-insure. While I think that’s going to be a relatively small population, I expect that there will be some that make that choice.

http://www.kaiserhealthnews.org/Checking-In-With/kocher.aspx

McKinsey and Co. estimates that as many as 30 to 40 million people will still be uninsured after the new health care law goes into affect. Telling people to do something they can’t do – buying subsidized health insurance that they still can’t pay for – will never succeed as a policy to eliminate the uninsured.

Enrollment needs to be automatic for everyone, with an automatic, equitable system of funding that makes it affordable for all – progressive taxes. That’s not such a difficult concept. I’ll bet you could easily solve it right now: an improved (fill in the blank) for all.

By Peter J. Cunningham
Center for Studying Health System Change
December 2010

A key provision of the national health reform law is the creation of state-based exchanges to provide more affordable insurance options for people, especially the uninsured. Despite premium subsidies for people with incomes up to 400 percent of the poverty level, or $88,200 for a family of four in 2010, and an individual requirement to enroll in coverage, no one knows who will enroll in the exchanges and who will not, at least initially. Almost 40 percent of uninsured people eligible to receive subsidies through the exchanges have chronic conditions or report fair or poor health, and another 28 percent report recent problems with access to care or paying medical bills, according to a new national study by the Center for Studying Health System Change (HSC). However, about one-third of uninsured people eligible for subsidies have had no recent problems with their health, access to medical care or paying medical bills. Enrolling these apparently healthy uninsured people is likely to be challenging but essential to avoiding adverse selection, or enrolling sicker-than-average people, in the exchanges. Otherwise, health insurance costs in the exchanges could be higher than expected.

Contrary to popular perception, many of these healthy and low-cost uninsured people view themselves as risk-averse, which could motivate them to gain coverage in the absence of health or access problems. Also, most uninsured people believe they need health coverage, although fewer believe that health insurance is currently worth the cost, a situation that could change once premium subsidies are available in 2014.

http://www.hschange.org/CONTENT/1170/

Comment: 

By Don McCanne, MD

One concern of the authors of the Patient Protection and Affordable Care Act was that the state insurance exchanges called for in the legislation might be subject to adverse selection. That is, individuals with greater health care needs would buy the government-subsidized plans if they could afford them, whereas healthy individuals might well choose to remain uninsured, feeling that their portion of the premium was too expensive or frankly unaffordable. This would concentrate high-cost patients in the insurance plans, resulting in the death spiral of skyrocketing premiums.

Healthier individuals who tend to be younger – the so-called “young invincibles” – have been perceived to be greater risk takers and thus more willing to go without health care coverage. This study suggests that these healthy individuals are just as risk-averse as uninsured people with health problems. Everyone wants to be insured.

Thus it is not so much the willingness to take risks that causes these individuals to forgo insurance coverage, but rather it is more whether the additional cost of the premium over the penalty provides enough perceived value, or whether they even have enough funds to pay the premium after their other basic needs are met.

In writing the bill, the authors struggled to balance the actuarial values of the plans (what percentage of costs the plans pay), the subsidies for the premiums and out-of-pocket expenses, and the penalties for non-compliance in purchasing the plans. They wanted the premiums to be affordable, so they pushed actuarial values down, shifting more costs to patients in need. They wanted to limit the burden on the federal budget, so they limited the government-provided subsidies for premiums and out-of-pocket expenses. They didn’t want to press too hard on requiring individuals to purchase expensive private plans from an industry in such disfavor, risking public furor, so they kept the non-compliance penalties low.

No matter how much you adjust these variables, you cannot ever get everyone to agree to purchase insurance. The numbers of individuals declining to purchase plans will be significant, and they will be predominantly healthy. It is absolutely inevitable that the exchange plans will experience adverse selection and will need to keep pushing premiums up.

Households with an income of 400 percent of the federal poverty level ($88,200 for a family of four) will feel the full brunt of the premiums inflated by the death spiral. How high? $25,000? $50,000? And should the family need health care, none of their out-of-pocket expenses are subsidized.

Trying to fudge the numbers won’t work in this structurally unsound financing scheme. We should quit playing games simply to keep the middlemen private insurers in play. Instead, let’s go for an improved Medicare for everyone.

Who Are the Uninsured Eligible for Premium Subsidies in the Health Insurance Exchanges?

By Peter J. Cunningham
Center for Studying Health System Change
December 2010

A key provision of the national health reform law is the creation of state-based exchanges to provide more affordable insurance options for people, especially the uninsured. Despite premium subsidies for people with incomes up to 400 percent of the poverty level, or $88,200 for a family of four in 2010, and an individual requirement to enroll in coverage, no one knows who will enroll in the exchanges and who will not, at least initially. Almost 40 percent of uninsured people eligible to receive subsidies through the exchanges have chronic conditions or report fair or poor health, and another 28 percent report recent problems with access to care or paying medical bills, according to a new national study by the Center for Studying Health System Change (HSC). However, about one-third of uninsured people eligible for subsidies have had no recent problems with their health, access to medical care or paying medical bills. Enrolling these apparently healthy uninsured people is likely to be challenging but essential to avoiding adverse selection, or enrolling sicker-than-average people, in the exchanges. Otherwise, health insurance costs in the exchanges could be higher than expected.

Contrary to popular perception, many of these healthy and low-cost uninsured people view themselves as risk-averse, which could motivate them to gain coverage in the absence of health or access problems. Also, most uninsured people believe they need health coverage, although fewer believe that health insurance is currently worth the cost, a situation that could change once premium subsidies are available in 2014.

http://www.hschange.org/CONTENT/1170/

One concern of the authors of the Patient Protection and Affordable Care Act was that the state insurance exchanges called for in the legislation might be subject to adverse selection. That is, individuals with greater health care needs would buy the government-subsidized plans if they could afford them, whereas healthy individuals might well choose to remain uninsured, feeling that their portion of the premium was too expensive or frankly unaffordable. This would concentrate high-cost patients in the insurance plans, resulting in the death spiral of skyrocketing premiums.

Healthier individuals who tend to be younger – the so-called “young invincibles” – have been perceived to be greater risk takers and thus more willing to go without health care coverage. This study suggests that these healthy individuals are just as risk-averse as uninsured people with health problems. Everyone wants to be insured.

Thus it is not so much the willingness to take risks that causes these individuals to forgo insurance coverage, but rather it is more whether the additional cost of the premium over the penalty provides enough perceived value, or whether they even have enough funds to pay the premium after their other basic needs are met.

In writing the bill, the authors struggled to balance the actuarial values of the plans (what percentage of costs the plans pay), the subsidies for the premiums and out-of-pocket expenses, and the penalties for non-compliance in purchasing the plans. They wanted the premiums to be affordable, so they pushed actuarial values down, shifting more costs to patients in need. They wanted to limit the burden on the federal budget, so they limited the government-provided subsidies for premiums and out-of-pocket expenses. They didn’t want to press too hard on requiring individuals to purchase expensive private plans from an industry in such disfavor, risking public furor, so they kept the non-compliance penalties low.

No matter how much you adjust these variables, you cannot ever get everyone to agree to purchase insurance. The numbers of individuals declining to purchase plans will be significant, and they will be predominantly healthy. It is absolutely inevitable that the exchange plans will experience adverse selection and will need to keep pushing premiums up.

Households with an income of 400 percent of the federal poverty level ($88,200 for a family of four) will feel the full brunt of the premiums inflated by the death spiral. How high? $25,000? $50,000? And should the family need health care, none of their out-of-pocket expenses are subsidized.

Trying to fudge the numbers won’t work in this structurally unsound financing scheme. We should quit playing games simply to keep the middlemen private insurers in play. Instead, let’s go for an improved Medicare for everyone.

Centers for Medicare and Medicaid Services

Section 302 of the Medicare Modernization Act of 2003 (MMA) established requirements for a new Competitive Bidding Program for certain Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS). The MMA requires that competitive bid payment amounts be used to replace the current Medicare DMEPOS fee schedule payment amounts for selected items in selected areas. The competitive bid payment amounts are determined by using bids submitted by DMEPOS suppliers. The intent of the Competitive Bidding Program is to set more appropriate payment amounts for DMEPOS items, which will result in reduced beneficiary out-of-pocket expenses and savings to taxpayers and the Medicare program.

http://www.cms.gov/DMEPOSCompetitiveBid/

And…

Despite Objections, Medicare Competitive Bidding Set to Begin

By Miriam Davidson
Muscular Dystrophy Association
December 3, 2010

Competitive bidding among Medicare providers of durable medical equipment, prosthetics, orthotics and supplies (DMEPOS) is set to begin January 1 in nine regions of the country, despite sharp criticism of the plan by lawmakers, economists, patient advocates and others.

Under the new procedures, DMEPOS providers must go through a competitive bidding process to win the right to serve Medicare recipients. Medicare pays these providers to serve the medical needs of millions of Americans who use medical supplies at home, including oxygen equipment and power wheelchairs.

Medicare officials argue that competitive bidding is necessary to save money and streamline services. Opponents say that, while saving money and streamlining services are laudable goals, this plan could ultimately backfire. They say a lack of proper services and supports may force many people who are now living comfortably on their own into far more expensive institutional care.

A flawed process

Problems that came to light during the testing phase included Medicare beneficiaries being forced to go to multiple, unfamiliar providers for different items and services; nonlocal providers; inexperienced or unlicensed providers; and greater costs to Medicare from more emergency room visits and/or longer hospital stays as beneficiaries lost access to critical services and equipment.

Moreover, dozens of academics and members of Congress have pointed out two major flaws in the way the competitive bidding auction is being conducted. The first flaw is that bidders are not required to sign contracts that reflect their bid, thus encouraging DMEPOS suppliers to submit unrealistic, “low-ball” bids that competitors — and even they themselves — can’t match. Opponents contend that large companies will submit extremely low bids in order to drive smaller competitors out of business, knowing that ultimately, they won’t be forced to provide equipment and services at such low prices.

The second major flaw in the process, critics say, is that Medicare arrives at the price it will pay for a product or service by averaging all the bids it receives, winners and losers alike. Due to the presence of many unrealistically low bids, the final contract price is often lower than the bid submitted by the winning provider. In fact, during tests of the process, half of the bidders who won contracts were offered lower prices than their winning bids.

Critics say these flaws will result in a skewed system that rewards unscrupulous DMEPOS providers, as well as those who skimp on service and quality.

http://quest.mda.org/news/despite-objections-medicare-competitive-bidding-set-begin

And…

Invacare Analysis Raises New Doubts about Bid Winners

HomeCare
December 6, 2010

Even as CMS moves resolutely toward the Jan. 1 implementation of DMEPOS competitive bidding, industry stakeholders are uncovering increasingly troubling hard data about some of the project’s contract holders.

Nearly 21 percent — or 73 of the 356 bid winners — have limited ability to purchase products from Invacare Corp., the nation’s largest home medical equipment manufacturer, the company said last week in its final report on the credit-worthiness of suppliers awarded Round 1 contracts.

According to the manufacturer’s analysis:

* 8.5 percent of the contract holders have credit limits with Invacare of less than $10,000 (meaning they can buy very little product from the company);

* 5.4 percent are on credit hold (meaning they cannot purchase any product from the company); and

* 6.7 percent are so far behind on their payments with Invacare that their accounts have been turned over for collection or legal process (meaning they cannot purchase any product from the company).

http://homecaremag.com/topics/competitive-bidding/invacare-credit-report-20101206/index1.html

And…

Analysis of the Economic Impact of Competitive Bidding on the DME Market: A One Year Update

By Brian O’Roark, PhD, Associate Professor of Economics, Robert Morris University

Overview

* Competitive bidding reduces the number of sellers and thereby reduces competition.

* Competitive bidding concentrates market power, which creates regional oligopolies and reduces quality of patient care. Primary among economic concerns: by eliminating nine out of ten suppliers in the market for durable medical equipment (DME), the industry would become more concentrated.

* The Centers for Medicare and Medicaid Services (CMS), the federal agency that oversees Medicare, misunderstands the structure of the market.

* The competitive bidding program forces an unsustainable business model on the DME industry. Ninety percent of providers were excluded from participating because they could not meet the bid. Those who qualify are forced to sustain prices for three years — an untenable position for any business.

http://www.aahomecare.org/associations/3208/files/O’Roark%20Summary%20of%20Economic%20Impact%20of%20Competitive%20Bidding%20August%202009.pdf

Comment: 

By Don McCanne, MD

The concept that competition will always bring the lowest prices for comparable value is so thoroughly ingrained in capitalistic societies such as ours that sometimes even the government will abandon administered pricing in favor of market competition. In this instance, the Centers for Medicare and Medicaid Services (CMS) has begun to use competitive bidding to price medical equipment and supplies. Initially, prices will likely be lower, but for how long and at what cost?

To begin with, for three years the CMS business is going to ten percent of the bidders. What does that do to the other 90 percent of suppliers who are excluded? Many of them will exit the market, concentrating the successful bidders into oligopolies or even monopolies.

What will happen to the manufacturers whose products are not distributed by the successful bidders? If the non-government market is not large enough to sustain them, some also will go under.

What will happen to patients’ access to these essential medical products? Inevitably, successful bidders will not be inclined to cover rural and poverty-ridden urban areas. Also, since each category of equipment and supplies
is bid separately, services for patients may end up being highly fragmented.

After three years of market concentration, who will be bidding for the new contracts? Certainly not those entities that have already folded. Those suppliers that low-balled the bids the first time around did so to eliminate the competition. Those remaining will certainly jack up their bids. In an oligopoly, collusion is not essential to get higher prices, though some in this industry are certainly not above colluding if it increases profits.

Public stewards who do their homework can obtain optimal value through negotiated administered pricing – paying legitimate costs plus fair profits. All manufacturers and suppliers should be allowed to compete based on the quality and accessibility of their products and services, but always at a fair, predetermined price.

We should replace our public stewards who are foolish enough to dash our health care system onto the rocks, lured by Lorelei’s song of market competition. Let’s start singing the song of social solidarity – a song that won’t lure anyone onto the shoals – and then maybe we’ll attract public stewards who actually care about the patient.

DMEPOS Competitive Bidding

Centers for Medicare and Medicaid Services

Section 302 of the Medicare Modernization Act of 2003 (MMA) established requirements for a new Competitive Bidding Program for certain Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS). The MMA requires that competitive bid payment amounts be used to replace the current Medicare DMEPOS fee schedule payment amounts for selected items in selected areas. The competitive bid payment amounts are determined by using bids submitted by DMEPOS suppliers. The intent of the Competitive Bidding Program is to set more appropriate payment amounts for DMEPOS items, which will result in reduced beneficiary out-of-pocket expenses and savings to taxpayers and the Medicare program.

http://www.cms.gov/DMEPOSCompetitiveBid/

And…

Despite Objections, Medicare Competitive Bidding Set to Begin

By Miriam Davidson
Muscular Dystrophy Association
December 3, 2010

Competitive bidding among Medicare providers of durable medical equipment, prosthetics, orthotics and supplies (DMEPOS) is set to begin January 1 in nine regions of the country, despite sharp criticism of the plan by lawmakers, economists, patient advocates and others.

Under the new procedures, DMEPOS providers must go through a competitive bidding process to win the right to serve Medicare recipients. Medicare pays these providers to serve the medical needs of millions of Americans who use medical supplies at home, including oxygen equipment and power wheelchairs.

Medicare officials argue that competitive bidding is necessary to save money and streamline services. Opponents say that, while saving money and streamlining services are laudable goals, this plan could ultimately backfire. They say a lack of proper services and supports may force many people who are now living comfortably on their own into far more expensive institutional care.

A flawed process

Problems that came to light during the testing phase included Medicare beneficiaries being forced to go to multiple, unfamiliar providers for different items and services; nonlocal providers; inexperienced or unlicensed providers; and greater costs to Medicare from more emergency room visits and/or longer hospital stays as beneficiaries lost access to critical services and equipment.

Moreover, dozens of academics and members of Congress have pointed out two major flaws in the way the competitive bidding auction is being conducted. The first flaw is that bidders are not required to sign contracts that reflect their bid, thus encouraging DMEPOS suppliers to submit unrealistic, “low-ball” bids that competitors — and even they themselves — can’t match. Opponents contend that large companies will submit extremely low bids in order to drive smaller competitors out of business, knowing that ultimately, they won’t be forced to provide equipment and services at such low prices.

The second major flaw in the process, critics say, is that Medicare arrives at the price it will pay for a product or service by averaging all the bids it receives, winners and losers alike. Due to the presence of many unrealistically low bids, the final contract price is often lower than the bid submitted by the winning provider. In fact, during tests of the process, half of the bidders who won contracts were offered lower prices than their winning bids.

Critics say these flaws will result in a skewed system that rewards unscrupulous DMEPOS providers, as well as those who skimp on service and quality.

http://quest.mda.org/news/despite-objections-medicare-competitive-bidding-set-begin

And…

Invacare Analysis Raises New Doubts about Bid Winners

HomeCare
December 6, 2010

Even as CMS moves resolutely toward the Jan. 1 implementation of DMEPOS competitive bidding, industry stakeholders are uncovering increasingly troubling hard data about some of the project’s contract holders.

Nearly 21 percent — or 73 of the 356 bid winners — have limited ability to purchase products from Invacare Corp., the nation’s largest home medical equipment manufacturer, the company said last week in its final report on the credit-worthiness of suppliers awarded Round 1 contracts.

According to the manufacturer’s analysis:

* 8.5 percent of the contract holders have credit limits with Invacare of less than $10,000 (meaning they can buy very little product from the company);

* 5.4 percent are on credit hold (meaning they cannot purchase any product from the company); and

* 6.7 percent are so far behind on their payments with Invacare that their accounts have been turned over for collection or legal process (meaning they cannot purchase any product from the company).

http://homecaremag.com/topics/competitive-bidding/invacare-credit-report-20101206/index1.html

And…

Analysis of the Economic Impact of Competitive Bidding on the DME Market: A One Year Update

By Brian O’Roark, PhD, Associate Professor of Economics, Robert Morris University

Overview

* Competitive bidding reduces the number of sellers and thereby reduces competition.

* Competitive bidding concentrates market power, which creates regional oligopolies and reduces quality of patient care. Primary among economic concerns: by eliminating nine out of ten suppliers in the market for durable medical equipment (DME), the industry would become more concentrated.

* The Centers for Medicare and Medicaid Services (CMS), the federal agency that oversees Medicare, misunderstands the structure of the market.

* The competitive bidding program forces an unsustainable business model on the DME industry. Ninety percent of providers were excluded from participating because they could not meet the bid. Those who qualify are forced to sustain prices for three years — an untenable position for any business.

http://www.aahomecare.org/

The concept that competition will always bring the lowest prices for comparable value is so thoroughly ingrained in capitalistic societies such as ours that sometimes even the government will abandon administered pricing in favor of market competition. In this instance, the Centers for Medicare and Medicaid Services (CMS) has begun to use competitive bidding to price medical equipment and supplies. Initially, prices will likely be lower, but for how long and at what cost?

To begin with, for three years the CMS business is going to ten percent of the bidders. What does that do to the other 90 percent of suppliers who are excluded? Many of them will exit the market, concentrating the successful bidders into oligopolies or even monopolies.

What will happen to the manufacturers whose products are not distributed by the successful bidders? If the non-government market is not large enough to sustain them, some also will go under.

What will happen to patients’ access to these essential medical products? Inevitably, successful bidders will not be inclined to cover rural and poverty-ridden urban areas. Also, since each category of equipment and supplies is bid separately, services for patients may end up being highly fragmented.

After three years of market concentration, who will be bidding for the new contracts? Certainly not those entities that have already folded. Those suppliers that low-balled the bids the first time around did so to eliminate the competition. Those remaining will certainly jack up their bids. In an oligopoly, collusion is not essential to get higher prices, though some in this industry are certainly not above colluding if it increases profits.

Public stewards who do their homework can obtain optimal value through negotiated administered pricing – paying legitimate costs plus fair profits. All manufacturers and suppliers should be allowed to compete based on the quality and accessibility of their products and services, but always at a fair, predetermined price.

We should replace our public stewards who are foolish enough to dash our health care system onto the rocks, lured by Lorelei’s song of market competition. Let’s start singing the song of social solidarity – a song that won’t lure anyone onto the shoals – and then maybe we’ll attract public stewards who actually care about the patient.