Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Making the Case for the Public Plan, Part II: Public Option as Private Benchmark
Ezra Klein has given a nice explanation of the advantages of public options in our health insurance ecosystem. He summarizes three different types of options that could develop, including a "trigger plan" (which be "triggered into existence [where] the private insurance market" failed), a "weak public plan" (which "couldn't use the low rates that Medicare sets" and would just act as another insurer) and a "strong public plan" (which would basically be modeled on Medicare). Klein argues that, whatever public plan were adopted, "The existence of another option changes the market. Individuals will have access to private insurers, but they'll no longer be stuck with them."
I agree with Klein that a public option can help us achieve the trifecta of health reform--increasing access, reducing costs, and improving quality. Tyler Cowen challenged Klein today, and I'll try to answer Cowen. First, Cowen argues that the public plan will be very expensive, for if "public and private plans are to coexist, the public plan must be attracting the higher-cost customers, namely the higher medical risks." Even if that's the case, other industrialized nations have used prospective and retrospective risk adjustment to level the playing field between plans. As I noted yesterday, even private health insurance lobbies have conceded that "spread[ing] costs for the highest-risk individuals" is necessary to guarantee coverage for all. Risk-adjustment should not be seen as a subsidy---rather, it's a way to keep a level playing field between the public and private plans.
Private insurers' apparent acceptance of risk-adjustment may seem irrational if you think that they are only in the business of trying to gain the healthiest customers and shed the sickest. Tempting as it is, that cream-skimming is only one part of the broad range of things that insurers do. Many large insurers make substantial "administrative services only" revenue--for example, by administering self-insured employers' plans. (In that way they avoid financial risk from sick insures--that risk is assumed by the employer funding the plan). Risk adjustment would further reduce their incentives to avoid people with pre-existing conditions. In terms of quality, private insurers can compete with the public plan on several dimensions, including identifying good providers, incentivizing best practices, and fairly determining access to treatment and payments for providers.
It's that last function---coverage and payment determinations---where the public plan really has a chance at improving insurance for everyone. Today's default for private insurers is secrecy in pricing, and opaque "gotchas" buried in thick plan documents. As Uwe Reinhardt has noted,
Whatever an insurer’s base for paying hospitals might be, the dollar level of payments is negotiated annually between each insurer and each hospital. . . . These actual dollar payments have traditionally been kept as strict, proprietary trade secrets by both the hospitals and the insurers. Recently Aetna announced that it will make public the actual payment rates it has negotiated with physicians in the Cincinnati area. That this small, tentative step toward transparency made national news speaks volumes about the state of price-transparency in U.S. health care.
Medicare's payment determinations are complicated, but at least they are done openly. A public plan should offer the same types of baselines here that Medicare currently offers in its National Coverage Determinations, which are routinely followed by private insurers. Private insurers heretofore have had little incentive to clearly explain what the exact consequences of cost-sharing in the face of illness would be. Competition from a public plan that had no profit motive to obscure those consequences might lead to "truth in labeling" like the proposed disclosure chart appearing below:
As Tim Greaney has argued, the public plan is "a benchmark to hold up against private plans' quality and cost performance." Cowen focuses on cost competition between the public and private plans, and suggests that competition from the public plan may lead insurers to get even sneakier to offer plans at lower costs. (Cowen claims that "'cruelty and capriciousness' would be a comparative advantage of the private companies and maybe it would be milked more strongly in a more competitive environment."). But more transparent quality competition could help euthanize gotcha capitalism in health care, where it really has no place.
Greaney reminds us that private insurance in many parts of the country simply is not a competitive market:
[A] majority of the country is served by a few dominant insurers. (In 16 states, one insurer accounts for more than 50 percent of private enrollment; in 36 states, three insurers have more than 65 percent of enrollment). Likewise, because of lax antitrust enforcement, most markets are characterized by dominant hospital systems and little competition among high-end physician specialists.
After fighting providers in the late 1990s, many private insurers scared by the "managed care backlash" have cozily upped their premiums and provider payments in tandem. A strong public option can shake up that status quo.
Finally, the public option has a clear incentive to keep people healthy. While churn among private insurers' customers leaves them little incentive to keep their insureds' healthy, the public options' insureds will eventually be entering the Medicare program. As cost-benefit analysis influences the public option, any benefits it achieves by skimping on preventive care may well need to be budgetarily balanced against the ensuing bad health outcomes imposed on the Medicare program. Similar incentives led to extraordinary improvements in the VA program.
In short, private insurers often dominate their markets, their plans are often opaque, and they have little incentive to invest in their customers' health for the long term. A public option will help us begin to address all those problems.
PS: Tyler Cowen responds here and asks: "do the more competitive [insurance] markets offer superior performance?" A 2001 piece by Tami Mark and Rosanna Coffey concluded that "The fragmentation of the health care market and the hesitancy of governments and private organizations to provide detailed information across markets and providers creates serious obstacles to the study of health plan competition." I'm afraid that's probably still the case, but I have been compiling some sources I'll be blogging later this week.
Given the extraordinary differences between the health care market and other markets, I don't know if the usual economic theory really applies well. More empirically grounded work could be quite relevant and counterintuitive. For example, a piece by Scanlon et al. in Health Services Research last year concluded that "The strategies that promote competition among HMOs in the current market setting may not lead to improved HMO quality. It is possible that price competition dominates, with purchasers and consumers preferring lower premiums at the expense of improved quality, as measured by HEDIS and CAHPS. It is also possible that the fragmentation associated with competition hinders quality improvement." On the other hand, if the public option is sufficiently transparent, it may create pressure for all insurers to compete on the basis of quality. Posted
by Frank Pasquale [link]