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In Monday morning’s oral argument at the Supreme Court, Solicitor General Donald Verrilli, Jr. juggled several legal balls in the air simultaneously while keeping a straight face. And he probably provided the most workable path for the Court to conclude that the Anti-Injunction Act (AIA) will not keep it from reaching a decision on the merits in the constitutional law challenges to the individual mandate under the Affordable Care Act (ACA).

Verrilli first had to insist that the 19th century AIA is a jurisdictional limit on courts, and not just a claims processing rule, regarding pre-enforcement challenges to the assessment or collection of any “tax” before it is due. As a general rule, the federal government does not want to concede its broad powers to collect revenue without facing early interference by prospective taxpayers. Nor did Verrilli want to abandon completely the Obama administration’s fading argument that the individual mandate still could be upheld as part of the constitutional powers of Congress to raise taxes and spend money to promote the general welfare (instead of as part of the power of Congress to regulate interstate commerce).

To the naked eye, it might appear that the government’s position was that the mandate was a “tax” when it needed to be one, and a “penalty” imposed to enforce the regulation of interstate commerce when it needed to be something else; i.e., for political reasons on one day, and for legal reasons on another day.

Think of the Decepticons in the “Transformers” movies and you’ve figured out how politically malleable, reversible, and misleading the Obama administration wants the mandate to be. Or just close your eyes and wish upon a falling star…

Nevertheless, Verrilli insisted that the precise language Congress used in the ACA and related provisions in the Internal Revenue Code is “determinative.” Then Justice Alito shot back, “…today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax.”

Verrilli explained that something (hint — the individual mandate and its penalties) can be a constitutional exercise of the taxing power, whether or not it is called a tax. But determining whether the court has jurisdiction relative to an AIA-based challenge requires construing the statutory text and its precise choice of words more closely.

In this case, Verrilli and the federal government (finally) decided to argue that the penalty for violating the individual mandate did not involve a “tax” that’s subject to the AIA.

The solicitor general also insisted that the ACA provides no other consequence apart from the tax penalty for someone who violates the individual mandate. Hence, he dismissed the argument made by the private appellees in this case that they were challenging only the individual mandate itself, and not enforcement of the related tax penalty. Verrilli concluded that if there was no penalty, then there would be no other legal obligation for someone to purchase minimum essential health coverage.

Chief Justice Roberts in particular seemed skeptical that the mandate alone could be enforced as a legal requirement without use of the accompanying tax penalty. “It seems very artificial to separate the punishment from the crime,” he observed.

The attorney for NFIB and other private plaintiffs, Greg Katsas, first tried to argue (without great success) that the AIA does not involve jurisdiction but rather procedural instructions to courts. He then pointed out more effectively that Congress separated out mandate exceptions from penalty exceptions (they applied to different categories of people, respectively). And he observed that Congress believed that at least some people would comply with the mandate simply because “it is the law.” (CBO actually based some of its questionable budget estimates on this premise.)

Another argument by Katsas appeared to fall flat (at least with Justices Kagan and Ginsburg): that the states were injured by the mandate because it would cause more people to enroll in their Medicaid programs than if they had a “voluntary” choice, and the states would have to spend more money than before to cover them.

Several other supportive arguments against holding that the AIA prevented further consideration of this case were filed in legal briefs with the Court but not highlighted specifically during oral argument. They include:

•    Congress determined in the ACA not to apply the full panoply of statutory rules governing taxes to the individual mandate penalty,

•    The Internal Revenue Code, in a number of  its sections, treats a penalty different than a tax, and

•    The federal government in the ACA tried to use the individual mandate to pay for its new regulatory impositions in an “off-budget” manner — without the political accountability that comes with new taxes.

The bottom line on the intersection of the ACA and AIA is: The tedious statutory construction analysis involved suggests that Congress did not intend to prohibit early consideration of this legal challenge to the individual mandate. And this case is Too Big to Fail to reach a decision on the merits by the Supreme Court later this year.

Next up: the individual mandate and the most important constitutional law issues in this case on Tuesday morning.

This morning at the Supreme Court’s legal tour of the Affordable Care Act (“If it’s Monday, it must be the Anti-Injunction Act”), the court-appointed amicus curiae Robert Long ran into multiple rounds of skepticism from almost all of the nine justices. The Court seemed particularly skeptical that the issue involving the individual mandate penalty was one of its “jurisdiction” to hear the case. Past Supreme Court decisions had been rather inconsistent in how it treated the AIA, particularly involving whether the federal government could “waive” its provisions in particular cases, or that courts could make “equitable exceptions” in unusual circumstances.

Justice Breyer focused less on the jurisdiction issue and more on how Congress had gone to great lengths in treating the individual mandate in the Affordable Care Act (ACA) as a “penalty” rather than a “tax.” Justice Kagan pointed out how other “fees and penalties” in the health law were placed in parts of the Internal Revenue Code where the AIA would apply. On the other hand, the individual mandate operated much more like a regulatory command, with a penalty attached to it.

Long’s response was that the penalty could not be separated from the mandate. In other words, one could not just be in violation of the mandate without also incurring the penalty. (Technically, that’s not quite right, because some people could be exempt from the penalties without being exempt from the mandate.) His better point was that the penalty was the sole means provided in the ACA for enforcing the minimum coverage mandate. He also pointed out that definition of a “tax” for purposes of the AIA barrier to lawsuits is different than the definition of a tax for purposes of determining the constitutional authority of Congress to impose an individual insurance coverage mandate.

Although Long relied heavily on language in the ACA that provided that the penalties under the individual mandate would be assessed and collected in the same manner as the taxes, Justice Breyer pointed out that Congress used other language that had nothing to do with the Internal Revenue Code and it did not use the word “tax” in connection with the ACA mandate.

Today’s 90-minute opener for three days of oral argument involves the dullest and most technical of issues: Can the Supreme Court even consider this case? Does it have jurisdiction?

In other words, after inviting everyone over for a gigantic constitutional law party, does it have to end shortly after serving a few hors d’oeuvres? What about that tasty main course involving the individual mandate?

Don’t worry. The argument will get better, and more interesting, tomorrow. And the Court appears unlikely to dismiss the case challenging the Affordable Care Act’s (ACA’s) individual mandate on jurisdictional grounds.

The technical issue up for argument today is whether or not the 19th century Anti-Injunction Act bars this legal challenge from proceeding until the individual mandate actually is implemented in January 2014, and its penalties for non-compliance begin to be enforced after April 15, 2015. The 1867 AIA (later amended) provides that no lawsuit to restrain the assessment or collection of any tax shall be maintained in any court by any person. In other words, pay first, then sue later.

Today’s oral argument was even more unusual because the federal government already has conceded the jurisdictional point in several federal appellate courts and in its briefs before the Supreme Court. Obama administration attorneys basically agree with the states and other private parties challenging the ACA on this issue—although for somewhat different reasons.

The administration used to say that the mandate was enforced by a “tax,” but then decided it was a “penalty”—depending on whether the issue involved jurisdiction or the constitutional authority of Congress to enact it. “A foolish consistency is the hobgoblin of small minds,” or at least antithetical to serving the political agenda of the Obama administration.

But because the 4th Circuit Court of Appeals upheld the AIA as a barrier to a similar lawsuit challenging the health law, the Supreme Court appointed an outside attorney to serve as a special amicus to argue for that position. The actual case before the Court today stems from the 11th Circuit court decision that overturned the individual mandate, and did not deal specifically with the AIA argument against doing so.

The respective attorneys have made a number of arguments for and against this case, but the key ones involve how the provisions for a “penalty” for violating the individual mandate were written by Congress in passing the ACA and how they should be interpreted. More on that in my next post.

Nick Schulz

Buck v. Bell curve

By Nick Schulz

March 26, 2012, 12:08 pm

Over the weekend, the Times ran one of the weirdest pieces discussing Charles Murray’s book Coming Apart. It’s hard to tell if the author of the piece has even read the book. Either way, the piece is so goofy it would be worth ignoring were it not for its interesting discussion of Carrie Buck and the landmark Supreme Court case Buck v. Bell that approved forced sterilization. I mention it first and foremost because AEI’s own Walter Berns wrote one of the most important papers on that case—legal eagles can find it here.

While they don’t talk about it now, American progressives loved forced sterilization back in the day. Progressive lion Oliver Wendell Holmes Jr. wrote the opinion in Buck v. Bell. In it he said, “the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” This is worth mentioning because supporters of the controversial contraception mandate under ObamaCare argue that the state has a strong public health interest in ensuring widespread availability of contraception in the same way it has an interest in, yup, widespread vaccinations. It’s funny how while history doesn’t repeat itself, it sure does rhyme.

Over at WaPo’s Wonkblog, Sarah Kliff attempts to highlight “What Paul Ryan learned from Obamacare.” In particular, Sarah draws a comparison between the competitive bidding process found in Ryan’s Path to Prosperity and the version in Obama’s ACA. She also points to some possible drawbacks (in addition to some possible upsides):

Under the Ryan budget, private plans would send the government an estimate of the premiums they would charge for insurance coverage that is at least as generous as the standard Medicare benefit package. The second-lowest of those “bids” would set the benchmark for how much premium support seniors receive. Seniors could spend that support on traditional Medicare, a less-expensive private plan (and receive a rebate), or a more-costly coverage package (and pay the difference). If this sounds familiar, that’s because it’s the same process the Affordable Care Act uses to set premiums on the exchanges that launch in 2014. There, insurance subsidies are tethered to the cost of the exchange’s second-cheapest (or “silver”) health insurance plan. A person who wants to purchase a more expensive plan would have to foot the bill for the difference. …

Competitive bidding has certainly shown some savings success. One Government Accountability Office report on competitive bidding for “durable medical equipment,” things such as prosthetics and wheelchairs, found that a demonstration project in two locations “saved Medicare $7.5 million and saved beneficiaries $1.9 million — without significantly affecting beneficiary access.” A second round of that demonstration project, which wrapped up last summer, dropped the prices of some Medicare equipment 35 percent. This is a program that some supporters of the health reform law, such as Zeke Emanuel, have advocated expanding.  …

Patient groups have contended that competitive bidding can be harmful to beneficiaries, curtailing access and choice to specific benefits. There’s some concern about adverse selection: Health insurance plans could structure a less-expensive benefit package in a way that would attract only the healthiest seniors, potentially leaving traditional Medicare with the sicker patients. Many members of Congress have opposed the expansion of competitive bidding and pursued repeal legislation, often out of worry for what it would mean for local businesses that supply Medicare products. That means that Medicare’s competitive bidding projects often get delayed, sometimes indefinitely.

I decided to give AEI health policy scholar Joe Antos a crack at responding. Antos said that in the “broad sense” Kliff was correct, but saying Ryan and Obama agree on how to structure a competitive market was a real stretch. Here’s why:

1. The exchanges will have some kind of a bidding process, but it could be heavily managed by the exchange. California has already made it clear that it will select a limited number of plans that will be allowed to offer coverage on the exchange, and other plans will be excluded even though they meet all other criteria. Other states will take more of a hands-off approach, but even in those cases their offerings will be heavily regulated thanks to the essential benefits requirement, the medical loss ratio test, and numerous other regulations spawned by ACA. Ryan’s approach is far less regulatory, although within the current Medicare framework which already limits the kinds of plans that can be offered. For example, plans that offer tiered provider networks are heavily discouraged by HHS, so there are no such plans in Medicare Advantage even though they are the rule in under-65 insurance.

2. “Second lowest” has a different meaning for Ryan and for ACA. Under Ryan, the Medicare subsidy is set according to the second lowest cost plan in a geographic area. Under ACA, the second lowest silver plan probably will not be the second lowest plan available in the market. “Bronze” plans are supposed to cover the same benefits (in general) as silver plans, but they pay 60% of the actuarial value of the full benefit compared with 70% for silver. Unless a silver plan has a very tight provider network or has taken other actions to cut cost, virtually any bronze plan would be less expensive than any silver plan.

3. The problem with competitive bidding is that a poorly designed process can result in substandard care or can lead to a monopolized market, but a well-designed process is also not complaint free. The DME case is a good example: small suppliers in the local market often cannot compete with the big chains, who may not have a store front operation nearby. The trade-off is more personal (although not necessarily technically better) service for higher federal cost. Politicians who fight off well-designed competitive bidding projects in Medicare are protecting local businesses but not necessarily doing the patients a favor.

Paul Krugman says the opponents of the Affordable Care Act are liars. According to Mr. Krugman, “To understand the lies, you first have to understand the truth. How would ObamaRomneycare change American healthcare?  For most people the answer is, not at all. In particular, those receiving good health benefits from employers would keep them” (emphasis added).

I don’t wish to put words into Mr. Krugman’s mouth, but this claim sounds remarkably similar to President Obama’s oft-repeated promise “If you like your healthcare plan, you can keep your healthcare plan.” But even at the time it was uttered in August 2009, PolitiFact.com scored this claim as only half true. When pressed on this promise, President Obama gave a lengthy answer that PolitiFact summarized as follows: “Obama’s saying that the government will not force employers to change their health plans.” That was then, this is now. What we know now that the law has actually been passed and some of the regulations have been written, is that President Obama’s 2009 assertion is factually false.

One can quibble over whether the president was lying when he made this claim (which implies knowingly stating a falsehood) or was merely mistaken in guessing the contents of the final bill and attendant regulations. But for Mr. Krugman to, in essence, repeat this claim in 2012 is a flagrant falsehood. If Mr. Krugman is so ignorant of the projected effects of the Affordable Care Act, as codified in official estimates issued by the Congressional Budget Office, the Medicare actuary, and the regulations issued by the Obama administration himself, then he has no business pontificating about the “truth” of the Affordable Care Act on the pages of the New York Times. If he is aware of these projected impacts, then an impartial observer might be forgiven for concluding that he is lying. You be the judge.

Millions of Americans will be adversely affected by Obamacare, such as the 7.4 million elderly individuals who will lose their Medicare Advantage Plans by 2017, according to the Medicare actuary. But let me focus only on employer-based coverage, since that is where Mr. Krugman makes his most concrete (i.e., empirically testable) claim. If you like your current health plan, can you keep it? To borrow a phrase from Mr. Krugman, “For most people the answer is, not at all.” This, of course, is the precise opposite of what Mr. Krugman and the president have asserted. They would have you believe that most of the 169 million Americans with employer-based health coverage will be able to keep their current coverage (if they like it). Nothing could be further from the truth.

First, every single health plan in America, even those that are “grandfathered” from having to comply with the thicket of Obamacare regulations, has been forced to make changes in coverage. These include prohibition of pre-existing condition exclusions, prohibition on excessive waiting periods, no lifetime or annual limits, and prohibition on rescissions, each of which will add to the premium cost of insurance (if such provisions were cost-free, employers would have added them years ago).

Second, federal regulators have projected that only one in three small employers (under 100 employees) and half of large employers will remain grandfathered by 2013. In short, official government figures explicitly acknowledge that more than half of all employees will not be able to keep their current coverage. The grandfathering rules are far too strict to allow this. Worse, the regulators further concede that as few as one in five small employers and one in three large employers might qualify for grandfathered plan status under the rules they have issued. In that case, more than two-thirds of workers will have lost their current coverage by 2013.

Finally, looking beyond 2013, the restrictions on grandfathered plans are sufficiently binding that proponents of the ACA fully concede that “eventually, if the ACA remains in effect, grandfathered plans will disappear.” Knowing all this, do you feel confident in your ability to keep your current coverage? More to the point, does a claim that ObamaRomneycare will not change American healthcare for “most” people sound even remotely truthful?

Paul Krugman has no monopoly on deceptiveness when it comes to the Affordable Care Act. Just this week, Jonathan Tobin has observed: ‎”President Obama’s willingness to falsify the facts about a personal tragedy in order to make a political point speaks volumes about not only his cynicism but also his character. It’s important to remember that this is no misunderstanding but rather a bald-faced lie.”

But perhaps Mr. Krugman could set an example to which his students and readers could aspire.

Mr. Krugman, lying in the public square is despicable, inexcusable behavior. Please stop.

Christopher J. Conover is a research scholar at Duke University’s Center for Health Policy and Inequalities Research, an adjunct scholar at AEI and affiliated senior scholar at the Mercatus Center at George Mason University. His new book American Health Economy Illustrated, was released in February 2012 by AEI Press.

Rep. Paul Ryan’s new budget has been generally well received on the right. Among its most important features, the proposal would make the tax code less injurious to economic growth by making it flatter and simpler. It would also revamp Medicare to give markets and competition a real shot at holding down costs while improving value.

But there are some gripes among conservatives and libertarians. Some I agree with, some I don’t. I wish Ryan’s Path to Prosperity included Social Security reform as well as more clarity on reducing tax expenditures. And Republicans really need to reach some consensus on a comprehensive replacement for Obamacare.

But perhaps the most widespread complaint on the right is that the PTP “takes too long.” Indeed, the budget would not balance for three decades, adding trillions in new debt during that period. One reason why: Ryan’s Medicare premium support reforms wouldn’t kick in until 2023 and only affect those under 55 today.

But why not start those reforms earlier, especially since Medicare would continue to be an option for seniors? Certainly the earlier you begin, the more money you would potentially save—and the faster you would reduce the distorting aspects that fee-for-service Medicare has on U.S. healthcare overall.

And is there any legit reason why someone retiring today—who will likely receive three times more in medical services than what they paid in payroll taxes—shouldn’t be part of the solution rather than continuing to be part of the problem? Talk about shared responsibility. There’s no economic reason for waiting, only political: to keep current and near retirees at bay with delay. But that approach a) raises doubts about Ryan’s confidence in the efficacy of reform, b) undercuts Ryan’s arguments that a debt crisis is just around the corner, and c) places too much confidence in the priorities of future Washington legislators.

So I basically agree with this criticism. But let me add a few things:

– If Ryan’s plan was using more realistic growth assumptions, it would balance sooner.

– Even with CBO’s slow growth economic assumptions, PTP quickly gets debt-to-GDP on a downward trajectory, 62% by 2022, 53% by 2030. Though, again, if we had faster growth from tax reform, the downward debt trajectory would be steeper.

– I don’t think financial markets need to see a balanced budget in five years as much as they need to see the United States on the right path to fiscal sustainability and solvency. And the Path to Prosperity does that.

 

The Willis Report of Employers is out and it has some major implications for Obamacare:

– Employers report that their healthcare costs have increased by about 2-5%—mainly due to new mandates in the new health law such as requirements that young adults can continue coverage under their parents’ policies, first dollar coverage of routine services, and the removal of annual lifetime limits for “essential health benefits.”

– More than half of the employer respondents expect to pass on these ACA-endowed rising costs to employees.

– Moreover, fewer than 30% of employers say they were able to maintain grandfathered status of their healthcare plans. This rapid loss of grandfathered status far outpaces Obamacare’s original estimates of what would happen. The preamble to the June 2010 regulations noted that by the end of 2011, the Obama administration expected 78% of employers would retain grandfathered status. By the end of 2012, they forecast that 62% would still be grandfathered, and by the end of 2013, 49% would retain their grandfathered status.

The new report states: “The accelerated loss of grandfathered status suggests that employers have had to make many plan changes to offset cost increases, and perhaps employers have been more willing to give up grandfathered status in order to take other steps to control costs.”

The upshot: If you like your health plan, you won’t be able to keep it.

The increasingly despotic Syrian government is restricting access to healthcare for opposition areas. Even worse, President Assad’s intelligence operatives are targeting hospitals to identify opposition figures and their families who have been injured in clashes.

What is less well-known is that in the desperate opposition areas, some of the drugs making it through are not actually any good. Medicine smuggling has been a major trading activity across most of the Middle East over the past three decades; over the past eight years, the trade has localized and some of those smugglers have started making their own counterfeit products. While police actions in 2009 shut down many of these groups and imprisoned several dozen of the worst perpetrators, some of these criminals are now out of jail. They are taking advantage of chaos in Syria, and to a lesser extent in Egypt, to increase their revenue.

Sources in the region tell me that fake analgesics and antibiotics are the main problems, but all forms of drugs in the region may be suspect.

Americans have the highest health spending on the planet. Why? Because they can afford to do so. What few people realize is that the United States has increased its standard of living vis-à-vis its biggest competitors despite rising health expenditures (figure 1.6c).

It may seem trivial to observe that Americans spend more on healthcare because they can afford it. But it gets to the heart of an important question: Why are we so preoccupied with rising health costs in the first place? From the standpoint of the average American’s welfare—measured in terms of their standard of living—what really matters is how much they have to spend on everything else once healthcare has been purchased. We can approximate this standard of living by simply subtracting national health expenditures from the rest of GDP and then dividing by population. To make these comparisons, I have relied on Penn World Table estimates of GDP per capita, which have been carefully constructed to produce a standardized metric of living standards that allows for meaningful comparisons across countries and over time. That is, in these comparisons, a 2005 dollar has equivalent general purchasing power across each of the years and countries shown.

In the United States, real (inflation-adjusted) healthcare spending per capita has been rising faster than real GDP per capita for as long as we can measure it (back to 1929). Consequently, healthcare absorbs a growing share of GDP. But the same has been true for all our major competitors for as long as we can measure it (back to 1960). For purposes of discussion, I’m defining the nation’s major competitors as the rest of the countries in the G7 (Japan, Germany, UK, France, Italy, and Canada) since these represent our major industrialized trading partners. Countries such as China and India surely will grow in importance in the decade ahead, but right now their standard of living is far behind that of the United States.

The United States for many decades has enjoyed a far higher standard of living than in the rest of the G7. In 1960, non-health GDP per capita in Japan was 62 percent lower than in the United States. The rest of the G7 also lagged behind the United States, though by not quite as much (ranging from 43 percent lower in Italy to 19 percent lower in Canada, the country whose standard of living came closest to that of the United States). This should come as no surprise: the United States emerged as the world’s strongest industrial power after World War II, an advantage that could easily have been predicted to persist only 15 years later.

But here’s what may surprise many readers: in real dollar terms, the U.S. margin of advantage in non-health spending increased between 1960 and 2007 for every single G7 country except Japan. Moreover, even since 1980, this U.S. margin of advantage increased for every country except the UK (which saw a minuscule decline in this metric). This means that even countries which experienced a lower growth rate than the United States in real health spending per capita lost ground to the United States in their real non-health standard of living. How could that be? The absolute increase in real U.S. GDP per capita was more than enough to absorb the absolute increase in its real health spending per capita during the same period.

A concrete illustration will make this clearer. From 1980-2007, U.S. health spending per capita grew by 4.3 percent a year. In Germany, this increase was only 2.5 percent a year. One might suppose that this large difference in health spending growth rates would have allowed Germany to catch up with the United States in terms of its non-health GDP per capita. That is, if Americans were spending more on healthcare, they must be spending less on everything else. But that’s not what happened. Between 1980 and 2007, the difference between U.S. and German health spending per capita grew by more than $3,000 (i.e., Americans spent $528 apiece more than Germans in 1980, but by 2007, this difference had grown to $3,078). Had non-health GDP per capita grown by identical amounts in each country, this would have reduced the U.S. non-health standard of living by more than $3,000 vis-a-vis Germany. But the rise in U.S. GDP per capita instead was so large that it not only covered the $3,000 in added health spending, but increased the U.S. margin of advantage over Germany in non-health spending by nearly $4,000! This illustrates the enormous power of a growing economy: Americans literally were able to have their cake and eat it too.

This is a critically important truth: the United States spends more on healthcare in large part because it can afford to do so. And unless the United States suffers a sharp decline in its GDP growth compared to its competitors, this pattern can persist for many decades. Even today, the margin of advantage I have been describing remains so large that even for Canada (where the U.S. margin of advantage is smallest within the G7), the United States could afford to increase its health spending by 50 percent without entirely eradicating Americans’ higher non-health standard of living relative to Canadians.

A rich country has to spend its income in some fashion. Would critics of the U.S. health system feel better if all the extra income that found its way into the healthcare system had instead been devoted to buying pet food, lottery tickets, or fancier cars? Put another way: which would you rather be? The country that spent more on healthcare because its booming economy gave it the means to do so? Or the country whose growth in healthcare was constrained by lower economic growth? This is not to argue that we cannot and should not find ways to get rid of avoidable health spending where feasible. But it puts into perspective where the United States really sits relative to its competitors. The United States is not doing nearly as badly as some critics have alleged. Moreover, these figures raise serious questions about whether we really wish to go down the same path as other European social welfare states.

Christopher J. Conover will be hosting an event at AEI on Tuesday, February 28, “Bad Medicine: The Misconceptions Driving the Health Care Debate” (RSVP here). The charts shown in this blog post are based on his new book, American Health Economy Illustrated, to be released this month by AEI Press. See PowerPoint version of Figure 1.6c. and Excel spreadsheet containing international comparisons of GDP and health spending per capita from 1960-2008 for data, sources, and methods.

How to find safe drugs in emerging markets

By Roger Bate and Julissa Milligan

February 24, 2012, 1:30 pm

Buying medicine while traveling overseas can be intimidating and dangerous, but some medicine retailers are safer than others. If you have to buy drugs in the developing world, here’s two ways to minimize your health risk.

The two key factors to consider when purchasing drugs overseas are price and the retail outlet. Purchasing a Coke in Nairobi, Kenya and New York is a similar experience; the surroundings are different, but the drink and salesman are identical for all practical purposes. But buying medicine is vastly different; in Nairobi, prescriptions are often optional, and you can buy your antibiotics and Coca-Cola in exactly the same way. In New York, on the other hand, the process is very different.

The market in Nairobi is more varied too. Ten pharmacies may carry hundreds of different brands of the same types of medicines, especially antibiotics and antimalarials. Prices can range from under a dollar for a locally made version of an older medicine to over thirty dollars for a newer drug type made by a Western innovator. It is easy for customers to compare prices—and expensive Western innovator medicines are generally of higher quality.

Analyzing medicines purchased from two main types of pharmacies, my recent working paper provides an initial look into how quality varies by pharmacy type. I find large pharmacies (either a substantial stand alone organization or, more likely, chain pharmacies) typically sell better quality drugs than their smaller counterparts. This makes sense—large organizations will be much more concerned with their reputation and likely to have systems to monitor medicine orders. Companies like Nairobi’s 65 CFW Shops, or the Apollo pharmacy chain, which operates over 1,000 shops across India, compensate to some degree for the lack of government oversight out of self-interest—to the benefit of the patient.

The best way to ensure that the drugs you ingest in the developing world are safe is to bring drugs purchased at home with you—no regulatory agency in an emerging market is as thorough as the U.S. Food and Drug Administration. But if you’re in a pickle, you can minimize your risk by choosing brands you know, purchasing innovator products, and finding large pharmacies that are part of a recognized pharmacy chain. This finding has important implications for policymakers as well—perhaps a crucial step to improving drug quality is to encourage the growth of pharmacy franchises.

Foreign aid creates deadly market distortions

By Julissa Milligan

February 24, 2012, 10:53 am

Obama’s upcoming budget cuts to American foreign aid target some of the best foreign aid programs (according to AEI’s Roger Bate), and worse, reward groups whose programs are less effective, less transparent—and potentially deadly. Funding programs like the Global Fund’s Affordable Medicines Facility – malaria (AMFm) is not only fiscally unwise—it has deprived patients, particularly children, of life-saving medicines.

The Global Fund’s AMFm program subsidizes the cost of artemisinin combination therapies (ACTs), the best malaria treatments available, in order to increase access to these drugs for patients in the developing world. Although malaria is primarily a childhood disease, 70 percent of the Global Fund’s antimalarial orders are for adult doses. The Global Fund’s massive medicine orders dominate global antimalarial drug purchases, sometimes override existing demand-driven supply chains. Companies catering to the Global Fund ignore existing customers, in some cases leading to empty pharmacies across Africa and Asia. These are projected to worsen in 2012.

While these problems are deeply disconcerting, the core issue is that the program discourages the antimalarial market from functioning properly. The AMFm’s subsidy creates incentives for pharmacies and first-line buyers participating in the subsidy program to turn a profit by selling the drugs above the subsidized cost. Without adequate oversight, this imbalance could lead to theft on a massive scale. The pricing asymmetries in the antimalarial market have created opportunities for hefty profits for those willing to sell subsidized ACTs to non-registered pharmacies or smuggle them across international borders.

In a preliminary analysis, Roger Bate, Lorraine Mooney, and I find that AMFm drug diversion is an acute problem. Stolen products were sold in 11 out of 14 cities studied. In all five AMFm countries surveyed, non-participating pharmacies were selling subsidized drugs. In 2 out of 5, more than half the pharmacies surveyed sold stolen medicines.

Theft is equally prevalent in non-AMFm countries: AMFm products were available for purchase in at least 6 of 9 countries studied. In two countries, more than half the pharmacies surveyed sold AMFm drugs.

Medicine diversion is not only worrying because it defeats the purpose of the subsidy—putting high-quality medicines in the hands of patients who need them most—it also undermines the rule of law in countries with low judicial capacity. The limited evidence available suggests that this program has opened up new avenues for corruption, attracted criminal gangs, and shored up revenues for narcotics traders. By creating perverse incentives for misbehavior and failing to compensate with adequate oversight, the AMFm program provides easy opportunities for theft. By inflating demand and disrupting markets, it may permanently damage markets, to the detriment of the patients who rely on these markets to provide lifesaving drugs.

Obama trusts foreign and unaccountable bureaucrats more than transparent U.S. entities.

Last week, the White House announced its proposed budget for FY 2013′s global health expenditure, set to begin on October 1. The headline is a reduction in funding of 3.5 percent, or $310.4m ($8,826.5m FY2012, $8,516.1m FY 2013). While no doubt conservatives in Congress will want the budget cut further, they should also challenge the priorities in this budget.

The budget for the U.S. malaria program is to be cut by 4.8 percent, and the tuberculosis program by 10 percent. Yet the former is the best-performing U.S. health program, and the latter its most underfunded. At the same time as these U.S. programs are cut, multilateral initiatives such as the vaccine alliance (GAVI) and the Global Fund have their budgets increase by a staggering 45 percent and 27 percent respectively. Both are good initiatives but both, especially the latter, have problems.

As I have pointed out on numerous occasions, the Fund is working with unaccountable, corrupt, and inefficient United Nations bureaucrats and continues to work with corrupt nations (something the U.S. malaria and TB programs do not), even after they are exposed as such. As other nations withheld money from the Fund last year due to corruption allegations, and the Fund’s head was forced out because his decisions were to be subjected to better scrutiny, Obama decides to increase U.S. taxpayer support.

One wonders what those working in the U.S. malaria program must think when their stellar work is rewarded with cuts, while corrupt multilaterals get more funding. European leaders may publicly applaud Obama’s support of these multilateral initiatives, but secretly they’ll be pleased that Obama is bailing them out.

Conservatives in Congress should demand no increase in the budget to the Global Fund (and a 50 percent cut if Global Fund doesn’t properly address the corruption problems), rather than the increase Obama proposes.

Congressional conservatives should also, as a sign of their desire to assist the less fortunate, demand the reinstatement of the U.S. government’s desired malaria budget and an increase in the TB budget. They can do this, save more lives, and cut the budget more than Obama proposes.

The 2013 budget President Obama released this week once again abdicates the responsibility we have to save Medicare from fiscal insolvency. Responsible reform would ensure that seniors would continue to have access to the care they need without bankrupting younger generations who foot the bill. As I explain here, the budget’s proposed “savings” in the form of provider payment cuts have almost no chance of passing Congress. Moreover, piling on cuts to the Affordable Care Act’s looming burden on hospitals and nursing homes will only make it more difficult for seniors to get the care they need.

A new AEI report released today is a reminder that effective, bipartisan solutions exist. The report finds that competitive bidding, a reform proposal to Medicare that introduces market pressures to lower prices, can save $339 billion over a decade, even accounting for the unrealistic cuts in payments to doctors and hospitals imposed by the Affordable Care Act. Competitive bidding does this without compromising affordable health premiums or endangering care for seniors.

This is the same approach taken by Senator Ron Wyden (D-Oregon) and Representative Paul Ryan (R-Wisconsin) in their bipartisan Medicare reform proposal. Unsurprisingly, the president ignored this bipartisan proposal, just as he ignored his own Simpson/Bowles deficit reduction commission. The contrast between serious proposals to save entitlements and the president’s politicized budget could not be clearer.

To pay for the increases in federal health spending promised 75 years from now, federal income taxes that year would have to be 175 percent higher than they are today. If you don’t like that idea, how about tripling the 15.3 percent bite that Uncle Sam takes out of every worker’s paycheck? Or, if you would prefer to spread the increase across all federal revenue sources, it would require that each one be increased by 75 percent (figure 20.7a).

As I’ve explained repeatedly, the alternative fiscal scenario is the most credible current projection of how much we will have to pay for Medicare, Medicaid, and Exchange subsidies under the Affordable Care Act. Even the actuarial experts who work for the government do not believe the baseline forecast. Yet the percentages I cite above greatly underestimate the size of the tax rate increases actually needed to raise the revenue to cover these promises, since they do not take into account the behavioral effects of higher taxes. I assure you that increasing federal income tax rates by 175 percent will not produce a 175 percent rise in income tax revenues. So think of all these figures as very conservative estimates of the tax increases looming over the horizon should we fail to get health entitlements under control.

Ask all your friends how comfortable they would feel imposing such punishing tax levels on their grandchildren. And if there’s no public sentiment for raising taxes by the gargantuan amounts required, then why are today’s policymakers making such promises? And if there’s no credible way we can tax our way out of this mess, why hasn’t the president offered a bold plan to substantially dial down on our promises (e.g., increase the Medicare retirement age) or fundamentally reform Medicare? The economy assuredly is a critical issue in the upcoming election. But well-informed voters also should be demanding that those wishing to inhabit the Oval Office answer some very tough questions about health entitlements as well.

Christopher J. Conover is a research scholar at Duke University’s Center for Health Policy and Inequalities Research, an adjunct scholar at AEI, and affiliated senior scholar at the Mercatus Center at George Mason University. The charts shown are from his new book American Health Economy Illustrated, to be released later this month by AEI Press. See PowerPoint version of Figure 20.7a and Excel spreadsheet containing projected federal healthcare obligations for data, sources, and methods.

Attention, children and grandchildren of Baby Boomers: save early and save often. Within 75 years, the average monthly premiums required for Medicare and out-of-pocket spending for Medicare-covered services (i.e., deductibles and coinsurance) will equal the average monthly Social Security check (figure 20.7b).

You heard that right. A typical senior counting on Social Security to pay for food, clothing, and shelter will be out of luck. That is, even assuming that Uncle Sam honors the promise to keep sending out Social Security checks, virtually every penny of the average check will be wiped out by the amount seniors will need to pay their premiums for Medicare Part B (outpatient services) and Part D (prescription drugs) and the average amount of cost-sharing paid by a typical senior for deductibles and the 20 percent coinsurance required on Part B services.

Currently, such typical Medicare costs (which do not even include elderly spending on private Medicare supplemental policies or spending on services not covered by Medicare) absorb 30 percent of the typical Social Security check. This is a sea change in the fiscal plight of seniors, and one more reason it is regrettable that the president elected to duck America’s “humongous healthcare problem” in his most recent State of the Union address.

Admittedly, under “current law” the Medicare cost burden facing seniors will grow “only” by about three-fifths between now and 2085. But few people believe current law will stick. According to the Medicare Trustees, “current-law costs are almost certainly understated as a result of the substantial physician payment reductions required under current law and are further understated if the productivity adjustments to other Medicare price updates under the Affordable Care Act cannot be continued in the long range.” This is why the Medicare actuary developed an “alternative fiscal scenario” whose results also are reported in the latest Medicare Trustees report. The most recent report issued by the Congressional Budget Office confirms the credibility of those alternative projections. CBO systematically reviewed all the evidence from Medicare’s past demonstration projects on disease management, care coordination, and value-based payment. This is the same laundry list of ideas that was stuffed into the Affordable Care Act in the expectation that surely one of these might actually bend the cost curve. This expectation appears to have been a triumph of hope over experience, as the CBO analysis concluded “In nearly every program involving disease management and care coordination, spending was either unchanged or increased relative to the spending that would have occurred in the absence of the program.” There was exactly one value-based purchasing program (out of four) that saved money.

Also, the 20 percent of seniors who rely exclusively on Social Security income in retirement are subject to lower premiums and cost sharing than others, so the picture for them will not be quite as bleak as shown. Nevertheless, future seniors with supplemental retirement savings who rely on Social Security to help pay at least some bills will be in for a rude awakening.

In short, there are two reasons policymakers need to take seriously the Wyden-Ryan bipartisan proposal to address Medicare’s long-term fiscal unsustainability. Financing the projected growth in Medicare over the next 75 years (which will rise from 3.6 percent of GDP in 2010 to 10.6 percent of GDP by 2085 under the alternative fiscal scenario) will require levels of federal taxation that are unprecedented in this country. There is no public opinion evidence I’ve seen that a majority of Americans (or even close to a majority) wish to be taxed at such levels. Moreover, the Affordable Care Act actually made the challenge of solving the Medicare entitlements crisis much greater by diverting a half trillion in potential savings and using these to expand coverage rather than shore up Medicare. But even if Congress magically could find a way to obtain the revenues to pay for Uncle Sam’s share, there is the inconvenient truth that a substantial fraction of seniors will simply be unable to afford their share of the massive increases in Medicare spending they will face.

The claim that 20-somethings are more likely to believe they will see flying saucers than collect from Social Security is exaggerated. Nevertheless, until and unless policymakers step up to the plate on this issue, those in their twenties (and especially their children) might do well to save as if Social Security will not be around. Should the Supreme Court strike down the Affordable Care Act this June, it might give policymakers a serendipitous opportunity for a do-over.

Christopher J. Conover is a research scholar at Duke University’s Center for Health Policy and Inequalities Research, an adjunct scholar at AEI, and an affiliated senior scholar at the Mercatus Center at George Mason University. The charts shown are from his new book American Health Economy Illustrated, to be released in February 2012 by AEI Press. See PowerPoint version of Figure 20.7b and Excel spreadsheet containing estimated Medicare cost sharing obligations as a percentage of average Social Security benefit, 2010 and 2085 for data, sources, and methods.

Roger Bate

Malaria death estimate doubles

By Roger Bate

February 3, 2012, 1:27 pm

A new study published in the Lancet medical journal estimates that the actual number of malaria deaths is double previous estimates.

This is obviously sad news, but the advances made over the past few years are real (whatever the baseline disease rate one chooses). However, it means that failures in existing programs must be combated with renewed vigor, as I point out in my new outlook published next week.

Roger Bate

Fake drug scandal, winding down?

By Roger Bate

January 27, 2012, 5:49 pm

The saga over the quality of medicines produced by Indian company Ranbaxy looks to be coming to a close. Back in 2004 and 2005, a Ranbaxy whistleblower contacted me to provide information about quality infringements at one of Ranbaxy’s plants. Despite FDA warnings and the WHO’s awareness of the problem, the problem was not fully resolved.

Ranbaxy is a good company and it is endeavoring to set things right. But its problems demonstrate the cost of not successfully inculcating good standards through all levels of management. My reading of the infringements made by Ranbaxy staff suggests that they may have saved the company at most a few thousand dollars from their regulation-infringing cost-cutting. Yet the loss of business has now run in the millions of dollars—and who knows what the cost of poor quality medicines has been to patients. It should be noted that none of the drugs the FDA tested failed quality control. But, as drug experts explain to me, there are some flaws it is hard to test for; it is possible dangerous products slipped through, especially if the production processes are careless.

The United States now sources 80 percent of its intermediate drug chemicals from overseas, a growing number from China. Chinese companies probably suffer worse quality control problems than most of the large Indian companies—but so far no whistleblowers have emerged. I expect many more Ranbaxy-type problems to crop up in the near future, with the likelihood of serious implications for at least some American patients.

News is filtering in about another fatal incidence of fake drugs, this time lethal heart medication in Pakistan. In my forthcoming book “Phake: The Deadly World of Falsified and Substandard Medicine,” I discuss the kinds of dangers the poor in emerging markets face every day from bogus medicines of all varieties. Counterfeiters don’t care what your disease or condition is, they just care that they can make a pill look like the drug you need. Lethal fakes of painkillers, antibiotics, hyper-tensives, heart medication, and every other type of medicine exist and, in some instances, dominate markets. But while our risk is lower, even in North America it is not zero. In 2006-7, 149 Americans died from fake heparin, a blood thinner. A couple of years earlier Vancouver native Marcia Bergeron died from a fatal arrhythmia brought on by heavy metal contaminants in her bogus heart medicine—exactly the alleged cause of death of the patients in Pakistan.

Back in January 2010, I wrote that the best evidence suggested that the so-called “game changers” included as part of the health reform legislation were unlikely to do much to restrain healthcare costs. The main reason that policies such as disease management and preventive care wouldn’t save much money is that it costs money to apply these methods to every patient, but only a relative few will benefit from them. Furthermore, it is hard to predict who those patients will be.

Now, following a review of experimental demonstration projects on disease management, care coordination, and value-based payment in Medicare, the Congressional Budget Office reports: “CBO reviewed the outcomes of 10 major demonstrations that have been evaluated by independent researchers. The evaluations show that most programs have not reduced Medicare spending.” Some demonstration projects fared better than others. For instance, programs promoting stronger patient–doctor interaction were more likely to generate savings, but even most projects of this type didn’t break even.

If we knew then what we know now—that the long-term care programs added to healthcare reform to sweeten the budget numbers were unsustainable, and that so-called game changers such as disease management didn’t change the game much at all—it is almost certain that the Affordable Care Act would not have passed through Congress.

What makes this all so galling is that we did know then what we know now: there were plenty of people raising warnings regarding these issues, but Congress and the Obama administration chose to ignore them.

Extraordinary. The president’s State of the Union address made no mention of what is purportedly his signature domestic policy achievement: the Affordable Care Act. In fact, the speech nearly ducked entirely the single largest problem most in need of the forward-looking bipartisan team effort repeatedly invoked by the president: America’s “humongous healthcare problem.” According to the Congressional Budget Office’s latest long-term spending projections, the federal government is slated to increase in size by more than 40 percent (relative to the economy) over the next 75 years. Fully 100 percent of that increase can be attributed to growth in federally-financed healthcare entitlements (figure 20.7c).

Of course, these estimates only represent CBO’s “extended baseline scenario.” Moreover, they exclude the 40 percent or so of Medicaid spending that is paid for by the states as well as non-mandatory health spending such as public health. Inclusion of these missing components would add several more percentage points of GDP to the totals shown.

More importantly, the CBO, like the Centers for Medicare and Medicaid Services and even the Medicare Trustees, recognizes that some of the vaunted “savings” promised in the Affordable Care Act are unlikely to come to fruition. For example, Congress for a decade now has repeatedly granted physicians a temporary reprieve from spending cuts mandated by the Balanced Budget Act of 1997. To comply with such statutory requirements now would require a nearly 30 percent reduction in physician fees paid by Medicare. In light of the devastating consequences to access that would result from imposition of such draconian reductions, no one seriously believes they will ever happen. Under a more realistic alternative fiscal scenario that assumes no physician fee reduction and other companion adjustments to how Medicare constraints really would play out as well as other assumptions, CBO projects that federal spending will have climbed to 75.9 percent of the economy by 2085!

One might suppose that a looming fiscal tsunami of that magnitude might be front and center in a president’s efforts to even-handedly describe the state of the union and what he planned to do about it. But, judging from the laundry list of new spending initiatives proposed by the president, he is not particularly alarmed by this massive increase in the size of government. There appeared to be not a single problem on his list of priorities for which additional federal spending was not his suggested solution. That attitude does not bode well for making any progress on health entitlements. To be fair, the president did say he would be willing to contemplate addressing the Medicare and Medicaid entitlements problem if and only if Congress were willing to raise taxes on the 1 percent of Americans who already pay (again, according to the CBO) 29.5 percent of all federal taxes. Perhaps I misunderstood, but the president appeared to be saying that if Congress were unwilling to play the game according to his rules, the president would be happy to pick up his marbles and go home. It is hard to picture President Lincoln telling Congress he would be willing to address the attack on Fort Sumter only if he first got from them a pet piece of legislation, or FDR insisting on approval of one more component of the New Deal before he would lift a finger to respond to the attack on Pearl Harbor. Admittedly, the impact is much further in the future, but having the federal government sop up so much of GDP within 75 years would have adverse consequences that arguably would rival the nation’s being split in two or facing a Nazi empire in Europe.

More stunning still is that a serious bipartisan proposal to address the Medicare problem just recently got put on the table by House Budget Committee Chairman Representative Paul Ryan and Senator Ron Wyden. Instead of hectoring Congress to learn a lesson from the U.S. military on teamwork, the president might have invoked the Wyden-Ryan proposal as a living, breathing example of the kind of teamwork that will be essential to resolve the entitlements tsunami. Readers can judge for themselves why the president failed to do so. What we can be certain of is that unless and until the country has a president willing to confront this problem squarely, our nation’s best days may no longer lie ahead.

Christopher J. Conover is a research scholar at Duke University’s Center for Health Policy and Inequalities Research, an adjunct scholar at AEI and affiliated senior scholar at the Mercatus Center at George Mason University. The charts shown are from his new book American Health Economy Illustrated, to be released in January 2012 by AEI Press. See PowerPoint version of Figure 20.7c. All figures were obtained from supporting tables from the CBO’s most recent Long Term Budget Outlook.

Michael Greve is a first-rate constitutional scholar, so I take on his argument that “the states will lose on Medicaid” with some trepidation. I’m no lawyer, so I’m in no position to quarrel with his legal argument. But I do know a thing or two about the Medicaid program and my analysis of the Affordable Care Act (ACA) leads to a very different conclusion. In my simple man-on-the-street view, states face a relatively simple (albeit stark) choice when it comes to Medicaid. They can either accept the new Medicaid spending required under the ACA or they can reject the “deal” offered by Congress, in which case they must forego all federal funding of Medicaid. This includes not only the very generous federal funding of some of the eligibility expansions (90 percent in perpetuity after 2020) but also whatever federal matching funds they had come to rely on for traditional Medicaid prior to ACA. No matter how we measure the burden of Medicaid for the average state, ACA increases the burden compared to what would have happened under the status quo (before ACA Medicaid expansions begin). But to reject Medicaid would impose obligations that are astronomically higher (figure 5.5c).

I have provided estimates for the three best measures of the Medicaid burden facing each state. All the changes shown are relative to a 2011 baseline, which are the latest official figures available through the National Association of State Budget Officers. The first commonly used metric (reported by NASBO itself in its annual state budget reports) is Medicaid as a percentage of the entire state budget inclusive of federal funds. In 2011, that average burden was 23.6 percent of state spending. Without ACA, I estimate that by the year 2019 the burden would increase by more than one-quarter simply because Medicaid spending routinely grows faster than state expenditures in general. With the ACA however, the increase in that burden would be more than 45 percent. If states reject the ACA, the increase would be just under 30 percent since states thereby avoid all the costs associated with increasing eligibility levels to 133 percent of poverty. In that regard, this metric does not accurately convey the enormous leverage Congress has attempted to wield to get states to do its bidding.

A better metric for that purpose is state Medicaid revenues as a percentage of own source state revenue. According to NASBO, federal funds currently make up more than one-third of the typical state’s budget and more than three-fifths of Medicaid. Own source revenues consists of all the other non-federal dollars in a state’s budget, whether these be obtained through general revenues, user or excise taxes, or even intergovernmental transfers from local governments to state government. These are revenues that for the most part have to be raised from a state’s own citizens. Currently, state revenues for Medicaid constitute 13.4 percent of all own source revenues. Under the status quo, however, this share will rise by 44 percent between 2011 and 2019, while under the ACA, it will rise by 52 percent. Thus, ACA is essentially forcing states to swallow an increase in their Medicaid burden that will be about one-fifth larger than it would have been under the status quo (i.e., 8.2 percentage points above the 44.7 percentage point increase states would have expected to accept under the current rules of the road). Here the consequences of rejecting Medicaid become more stark: this burden would increase 247 percent for the average state electing not to accept the conditions laid out in the ACA. Perhaps the analogy is a bad one, but in my non-lawyer’s view of the world, this is roughly equivalent to the neighborhood kid asking for a $20 “donation” by threatening to inflict $250 damage on your property if you decline. Is such a donation voluntary or coerced?

The choices look even more bleak when we consider the last measure of Medicaid burden: State Medicaid revenues per resident. Leaving aside the federal tax dollars shipped to the U.S. Treasury to bankroll Uncle Sam’s matching contributions, the average state collected $477 per capita to pay for the state share of Medicaid. Under the status quo, that will grow to nearly $930 by 2019, a 95 percent increase; under the ACA, it will more than double. But what happens to the average state electing to reject ACA? State Medicaid revenues per resident will balloon by 371 percent! Imagine you had a mortgage and were expecting to pay $9,500 a year for 30 years. The bank advises you that it would like to change the terms of your loan and charge you $10,600 instead; if you refuse, you have come up with a balloon payment of $37,000 to avoid losing your house. Would you feel that acceding to these new terms was voluntary?

These figures are state averages. For curiosity, I looked at the lowest income state, Mississippi, and a very high income state, New York, discovering that their state Medicaid revenues per residents would climb 654 percent and 523 percent respectively were they to reject ACA. I do not pretend to know the precise dividing line between coercion and a voluntary agreement. But thinking about this in the context of everyday life, if this is not coercion, what is?

One could argue that states long ago put themselves in this bind by agreeing to Medicaid in the first place. That may be true, but the Medicare actuary states that “in terms of the magnitude of changes to the program’s projected expenditures and enrollment, it is likely that the Affordable Care Act will be the largest legislative change to Medicaid since the program’s inception.” In that regard, the incremental magnitude of the increased expenditures expected of states is different than under previous Medicaid expansions. Moreover, having observed the policy process over decades, I can report repeated instances in which Medicaid expansion always was the default option in any state discussions of how to cover the uninsured. Medicaid rules notwithstanding, it was a no-brainer to opt for a coverage vehicle in which Uncle Sam would pick up 60 percent or more of the tab for whatever expansion was under discussion. This perverse incentive works at the federal level as well. Given that the states would always be on the hook for roughly half of the projected cost, it was always less expensive for Congress to generously expand Medicaid eligibility by ratcheting up the mandatory eligibility or benefits required under Medicaid than to contemplate any sort of subsidized coverage program fully financed from federal tax coffers. Thus, both sides of the federalism divide have been jointly culpable in slowly but surely ratcheting up Medicaid’s share of GDP sevenfold between its inception in 1966 and 2019, when ACA is fully implemented.

The problem with salami tactics like those encouraged through federal matching programs such as Medicaid is that eventually we will run out of salami. It’s very generous for the federal government to offer 90 percent matching in perpetuity for those newly eligible under the ACA. But it is not at all clear Uncle Sam is in a position to fund this promise, especially in light of the fiscal tsunami posed by Medicare in the decades ahead. And even Michael Greve would concede that the federal government is absolutely under no legal or constitutional obligation to honor the commitment codified in the ACA. Should Uncle Sam renege on this promise, the burden on states will be even more onerous than I have already described. In that context, perhaps the Supreme Court will do everyone a favor by halting this charade before Uncle Sam is forced by fiscal pressures to admit to the states a promise was made that federal taxpayers cannot afford.

Christopher J. Conover is a research scholar at Duke University’s Center for Health Policy and Inequalities Research and an adjunct scholar at AEI. The charts shown are from his new book American Health Economy Illustrated, to be released in January 2012 by AEI Press. See PowerPoint version of Figure 5.5c and Excel spreadsheet containing the estimated impact of the Affordable Care Act on state Medicaid expenditures for data, sources, and methods.


In last week’s blog post, I showed that both ambulatory care and health facilities spending, relative to the national average, rose more quickly in Massachusetts during the Romney administration than did such spending in Texas under Governor Rick Perry or in Utah under Governor Jon Huntsman. In this article, I use newly-released figures from the Centers for Medicare and Medicaid Services to show what was happening to state health spending per resident in the New England states surrounding Massachusetts. It turns out that while Romney governed Massachusetts (2003-2007), health spending per resident was rising faster than the national average throughout New England, with the notable exception of Vermont (figure 12.6j).

That said, only New Hampshire outpaced Massachusetts in terms of the rate at which health spending per person outstripped the rate of growth in per capita health spending for the nation as a whole. In short, Governor Romney did not “bend the cost curve” even relative to his peers in the region. The above figures take into account any border-crossing that might otherwise have artificially inflated health spending in Massachusetts relative to much more isolated states such as Utah and Texas. Nevertheless, my earlier observation still holds true: governors have control over some, but not all of their state health expenditures.

But it is important to recognize that differences in economic growth may play an important role in determining the relative rates of spending growth across states. Indeed, when we compare per capita health spending across countries, for example, roughly 90 percent of the differences can be attributed to differences in GDP per capita. Thus, another measure we might use to gauge the relative performance of states relates to the burden of health spending on its citizens. Did the relative burden of health spending rise or fall during the Romney administration? It is easier to answer this question than to figure out what it means. Our rough measure of this burden is calculated using resident health spending as a percentage of gross state product. I again have indexed this burden so you can see how it rises or falls relative to the national average (the national burden rose from 11.6 percent of GDP in 1991 to 14.9 percent by 2009). Note that at the state level, we only track personal healthcare expenditures, i.e., spending on hospitals, physicians, pharmaceuticals, etc., but this excludes spending on Medicaid, Medicare, and private health insurance administrative expenses, as well as spending on public health, medical research, and health-related construction. Once again, the burden of spending rose more quickly in Massachusetts than in the nation overall, although there were other states in the region (Maine, New Hampshire, and Rhode Island) where this burden rose just as quickly.

What conclusions can we draw from this? First, the states that did the most to expand health insurance coverage (Maine and Massachusetts) experienced the greatest increase in health spending per capita. It may seem intuitively obvious that expanded coverage is not self-financing, but there were many reformers who argued the opposite on grounds that the uninsured incur all sorts of avoidable costs due to their delaying and deferring needed care. Such arguments were made even though we have long known that compared to people with full-year private coverage, annual health spending for the full-year uninsured is less than half as high. This figure takes into account all sources of payment, including subsidized care for the uninsured as well as their out-of-pocket spending. Thus, even though the uninsured admittedly have greater use of the ER than those with private insurance and a higher rate of medically avoidable hospital admissions, they nevertheless have lower spending overall. What is apparent from the Massachusetts numbers is that universal coverage is not a free lunch. Expanding coverage inevitably will cost more as the spending of those who previously were uninsured gradually rises towards the average level of those with public or private coverage. Thus, the policy question is whether the benefits of universal coverage are worth these added costs. Vermont might be viewed as a counter-example, except that the state’s Health Care Affordability Act did not take effect until 2007. Thus, the state’s relative deceleration in health spending actually began several years before this law took effect and the spending curve flattened out post-2007. Even if relative spending had declined slightly post-2007, remember that all of these trends are relative to the national average: a slightly declining line merely means that health spending grew less slowly than elsewhere, not that it actually declined.

Second, rising incomes cannot explain the relative rise in health spending in Massachusetts. The figures showing a rising burden imply that the state’s health spending grew faster than the state’s economy. But in fairness to Governor Romney, the health burden in Massachusetts had been rising for many years prior to his coming into office. At best he failed to slow that growth. On the other hand, the relative burden declined post-2007, which some might want to attribute to “Romneycare.” As I explain in a forthcoming piece in The American next week, there really is no good way of determining whether this decline was related to Romneycare or the recession (or some combination).

Third, these figures reinforce my earlier observations about health services regulation. Having spent much of the past decade looking at such regulations in detail, I do not believe it is accidental that the six states shown generally rank among the most regulated states in the country (MA=49, RI=47, VT=44, CT=36, ME=35, NH=4, where 50 denotes the most regulated state in the country). While a definitive conclusion would require a careful analysis of time series data that relate changes in health services regulation to changes in health spending, this strong—albeit imperfect—correlation between health regulation and health spending seems unlikely to be purely coincidental.

Healthcare spending may not be the most important issue in the 2012 election. But whoever is elected president in 2012 will have to begin addressing the very serious issue of healthcare entitlements, as these commitments are the ones making the biggest contribution to the fiscal tsunami we will face if we take no action. Mitt Romney assuredly expanded coverage in his state, but the result was faster-than-average growth in the state’s health expenditures and faster-than-average growth in the burden of health spending relative to the state’s income. All indications are that the Affordable Care Act will play out in similar fashion. Massachusetts voters might have viewed this as a fair trade, but voters will have to decide whether the incremental gains in coverage under the ACA are worth the multitude of adverse effects being left in its wake.

Christopher J. Conover is a research scholar at Duke University’s Center for Health Policy and Inequalities Research and an adjunct scholar at AEI. The charts shown are from his new book American Health Economy Illustrated, to be released in January 2012 by AEI Press. See PowerPoint versions of Figure 12.6j and Figure 12.6k and Excel spreadsheet containing indexes for a) health spending per resident; b) Medicaid spending per resident; c) resident health spending as a percentage of gross state product, and d) resident health spending by type of service for data, sources, and methods.

Mitt Romney has been attacked by many for his record on healthcare while he was governor of Massachusetts. But with three governors in the Republican race, it is useful to compare the track records of all three as they relate to health spending. No matter how the figures are sliced and diced, it is clear that health spending, relative to the national average, rose more quickly during the Romney administration than during either the administrations of Governor Rick Perry or Governor Jon Huntsman. For example, ambulatory healthcare spending per capita was declining relative to the national average when Governor Romney first took office, but has steadily increased every year since then, climbing from 19 percent above the national average in 2003 to 29 percent above the national average by 2007 (figure 12.6c).

In contrast, ambulatory health spending in Texas was steadily declining prior to the arrival of Governor Rick Perry and continued to do so for the first four years of his term. Subsequently, it has risen only slightly, from a low point of 8.8 percent below the U.S. average in 2006 to being 6.3 percent below the average by 2009. Jon Huntsman inherited a somewhat similar situation except that relative spending already had begun to rise slightly before he took office and continued to rise for his first two years, followed by a noticeable relative decline.

The pattern for health facilities is somewhat different, but the big-picture result is the same. In this case, Governor Romney inherited rising relative expenditures on health facilities, which fell slightly in his second year, but then continued to rise (figure 12.6d).

Governor Rick Perry inherited relatively stable health facilities expenditures (i.e., rising at about the same rate as the rest of the nation). Relative spending has declined in subsequent years. Governor Huntsman inherited a stable pattern of health facilities expenditures which continued throughout his tenure.

What conclusions can we draw from this? First, the figures shown focus on the gross domestic product attributable to the two large categories of health spending shown and divides this amount by state population to obtain per capita estimates. This is similar but not equivalent to each state’s expenditures on these services. It reflects sales generated within a state, but not necessarily only to that state’s residents. Thus, it is not an exact measure of how much Massachusetts residents spend relative to those in Texas. But it is a rough approximation. And unless there is a great deal of year-to-year variation in the fraction of cross-border spending by a state’s residents, the trends in per capita health-related GDP should approximately mirror trends in health spending. It would be quite unusual for per capita health-related GDP to be steadily rising when correctly measured health spending of that state’s residents was falling, for example.

Second, the figures only include spending on ambulatory care services (including services of physicians, dentists, and other health professionals) and spending on health facilities. Notably excluded are spending on prescription drugs and durable medical equipment (which account for one seventh of national health spending), among other things. So the figures admittedly do not provide the whole picture of health spending, but they do include the lion’s share of medical costs.

Third, state governors clearly are not responsible for aggregate health spending in their state. That said, state policy most assuredly has some effect on health spending. Medicaid spending accounts for nearly one fourth of state government spending, exceeding the amounts spent on elementary and secondary education. Even though the federal government contributes a larger share of Medicaid spending than state and local governments, state policymakers historically have had a great deal of discretion over eligibility standards, benefits, and payment rates. Likewise, in most states, state employees, dependents, and retirees typically constitute the largest single group obtaining employer-sponsored health insurance. All told, state and local policymakers control more than one quarter of health spending through Medicaid, state employee health benefits, and other categorical health spending (e.g., local health departments). Thus, gubernatorial health policy decisions most assuredly have some impact on trends in health spending.

As well, there are vast differences across states in their degree of health services regulation, with some states requiring the state’s permission for every hospital bed built and others imposing no state restrictions whatsoever on health facilities expenditures. Here the story gets quite interesting. As of 2009, Utah had the 13th least regulated health system in the country whereas Massachusetts had the second most regulated health system and Texas was in between, having the 29th most regulated system. As one example, Utah and Texas eliminated their certificate-of-need restrictions on hospitals in the mid-1980s, whereas Massachusetts not only retained its CON program, but made the program even more stringent two years after enacting their health reform law. One would be hard put to infer from the figures shown above either that the Massachusetts CON program was effective in restraining spending or that failure to have CON programs has led to an “explosion” in health spending in either Utah or Texas.

Healthcare spending is surely not the most important issue in the 2012 election. But for those who care about this issue, the available evidence suggests that Jon Huntsman and Rick Perry boast much better records than Mitt Romney in holding down health expenditures.

Christopher J. Conover is a research scholar at Duke University’s Center for Health Policy and Inequalities Research and an adjunct scholar at AEI. The charts shown are from his new book American Health Economy Illustrated, to be released in January 2012 by AEI Press. See PowerPoint versions of Figure 12.6c and Figure 12.6d and Excel spreadsheets on a) total population, total GDP, GDP for ambulatory health care services, and GDP for hospitals and nursing & residential facilities; b) per capita GDP, ambulatory healthcare services, and hospitals and nursing & residential facilities, and c) index per capita amounts for these measures of merit for data, sources, and methods.

The initial debate over premium-support-style reform of Medicare, as most recently embodied by last week’s Ryan-Wyden proposal, remains largely driven by ideological passions, oversimplified budgetary scoring models, and policy concepts devoid of structural details. Hence, it too quickly descends into the sort of no-holds-barred fight for political dominance that Butch Cassidy faced when challenged by Harvey Logan for control of the Hole-in-the-Wall gang in the 1969 movie, “Butch Cassidy and the Sundance Kid.”

If only the president and Congress could settle Medicare reform issues as quickly and as elegantly! Perhaps we should take a little more time to re-examine past assumptions, determine priorities, and present tradeoffs more honestly. Most of all, let’s stop assuming that we can get from point A to point Z without spelling out and using many more letters of the health policy alphabet to settle on some rules of engagement. The Ryan-Wyden proposal makes an honest effort to start this process at the “high-concept” level. But even that political movie will need a more detailed script that begins to answer at least 13 more questions.

Consider what remains mostly unknown, uncertain, or unresolved—if not simply airbrushed out of the fuzzy picture—regarding a baker’s dozen of elements of a premium support plan that could be implemented, made operational, and not contradict its promises:

(1)    Is the primary policy goal of premium support (or other Medicare reform alternatives) to achieve more efficient and higher-value health care? Or is it simply to lower the future rate of growth of Medicare spending? Or, more cravenly, just to keep currently happy beneficiaries reassured of little if any disruption to their existing health care arrangements? If we pretend that none of those goals are in any conflict with each other, the resulting prescription for solving several simultaneous equations remains likely to be contradictory, unaffordable, and unsustainable.

(2)    Clearer answers to resolve the tradeoffs between those major policy goals and their relative order of precedence will go a long way in determining other settings for the various elements of premium support. For example, promising too many “guarantees” to beneficiaries of generous benefits, limited cost sharing, protective regulation, and standardized coverage will negate other policy objectives. They will conflict with efforts to achieve lower Medicare spending growth rates, reduce tax burdens on younger workers, shrink massive budget deficits, and increase choice and competition through better private plan alternatives.

(3)    Just how “low-income” will low-income Medicare beneficiaries needing greater premium support turn out to be? Ryan-Wyden tends to start drawing special assistance income-level ceilings at dual-eligible seniors covered by Medicaid as well Medicare. Subsidies that creep further up the income ladder will hit younger taxpayers harder and reduce beneficiary incentives to make more cost-conscious care and coverage choices on the margin.

(4)     Recent rhetorical boasts that a reformed Medicare program under Ryan-Wyden will provide the “toughest consumer protections” ever might send a chill down the spines of those hoping for more differentiated coverage choices and more vigorous competition among Medicare insurers and health care providers. Ensuring necessary regulation is not the same as reupholstering traditional Medicare regulation with additional layers of edicts from CMS.

(5)    Competitive bidding mechanisms conceptually should determine relative levels of premium support by taxpayers in different health care market areas. But they need clear operating rules guided by key policy goals. If the foremost goal is lower costs, setting the winning bid price at the least-costly one submitted might drive down premiums over time, at the risk of failing to ensure sufficient capacity to serve all beneficiaries. At the opposite end, using competitive bidding to arrive at an “average” price of subsidized coverage based on all bids would keep more “competitors” in business, more beneficiaries happy, and the traditional Medicare program more insulated from competition. But that would come at the expense of reduced pressure for greater efficiency gains and resulting higher Medicare costs to be picked up mostly by taxpayers, and increasingly by Medicare premium payers as well. Ryan-Wyden suggests that it might favor using the lower of the second-lowest bid in a market area, or the cost of traditional Medicare fee-for-service (FFS), to set the premium support amount. The 1999 bipartisan Medicare commission’s model relied more on an enrollment-weighted average of all competitive bids. (Is anyone else out in Medicare nerd land considering a reverse second-item auction, if not a Dutch auction, but for the unfortunate imagery of reduced plan choices?)

(6)    The tradeoffs between taxpayer costs, Medicare spending levels, beneficiary insulation from market–based price tags, and relative stability on the supply side of health care also will shape such policy design decisions. What percentage of total Medicare premiums will be subsidized (the 1999 bipartisan commission started at 88 percent)?

(7)    Could a supplemental tier of separately-priced benefits also be offered by private insurers that first must follow bidding rules in selling an initial common core of standard Medicare benefits?

(8)    How much variation (“actuarial equivalence”) will be allowed in offering basic benefits?

(9)    How might levels of premium support be adjusted downward in later years (to meet budgetary targets)?

(10)    What degree of means testing for access to greater taxpayer subsidies will prove both economically necessary and politically tolerable?

(11)    The power of competitive pressure unleashed through a premium support reform might be shaped by design factors  that could overcome the ingrained inertia of most Medicare beneficiaries to choose one plan and stick with it as long as possible. For example, initial random assignment of newly eligible Medicare enrollees into both private plans and Medicare FFS—as a default setting subject to informed consent and opt-out guarantees—might reduce the passive bias of the current program toward enrollment in the dominant incumbent option, the traditional FFS public program. On the other hand, the limits of political tolerance will be tested by premium spikes in Medicare FFS in some markets where it is less cost-competitive, or by the absence of private plan options in other areas (such as several rural states represented by members of the Senate Finance Committee?) where limited health care provider options make network contracting by private insurers less viable.

(12)    Another unaddressed issue in many premium-support-style proposals involves how the administrative managers of Medicare FFS might be empowered (i.e., turned loose) to adjust their program configurations to respond to new competitive pressure from private plan alternatives. Political resistance to untying the hands of government  “bureaucrats” in order to allow them to act like managers seeking to retain or expand market share (if not “profits”) is strongest among the many micromanagers of Medicare on Capitol Hill. But it also strikes a chord among risk-averse FFS beneficiaries. On balance, level-playing-field competition between the public and private faces of Medicare requires that past constraints on the former’s flexibility to adjust premiums, cost sharing, and benefits, plus selectively contract with providers, should be relaxed from congressional shackles as long as sufficient disclosure of new policies and practices is ensured and the FFS program is broken up into regional, if not smaller, units.

(13)    The biggest challenge may involve the need to deliver Medicare cost savings soon enough and large enough. That would mean applying premium support to newly eligible enrollees earlier rather than later, or even to current enrollees, so that the “benefits” of  competitive cost pressures make a difference before fiscal pressures overwhelm the program another ten years from now. The Ryan-Wyden plan, like most other “reform” proposals, takes a dive on this issue, even though this contradicts the purported message that choice and competitive should be good for everyone, not just new beneficiaries much further over the election year horizon.

The above policy menu is complex and relatively uncharted. It certainly merits much more discussion, initial experimentation, and careful monitoring, but those uncertainties should not dissuade policymakers from allowing it to unfold sooner rather than later. (Even health policy analysts at several Washington-based think tanks have gotten into the Medicare reform act, under the nomenclature of “defined contribution” financing for Medicare.) What is more certain is not only that the status quo is unsustainable, but that a more cautious move in the direction of premium support should and could  have started over a decade ago, as proposed both by a majority of a 1999 presidential commission and in several bills offered by then-senators John Breaux and Bill First.

In any case, the public service done by Representative Ryan and Senator Wyden is not to offer the ideal, intricately-designed version of Medicare reform, but rather to help unlock the mostly stale policy discussion about how to avoid dealing with the growing mismatch between our past political promises to older Americans and our future institutional and economic capabilities to deliver them through traditional mechanisms.  Medicare is destined to change substantially, by necessity. Ryan and Wyden suggest a pathway for doing this more intelligently, compassionately, and sustainably, in accord with our broader values and the rest of a hopefully more competitive and market-driven health care system. But there’s lots more heavy lifting and serious work ahead than just a quick “clean and jerk” move toward more exaggeration, wishful thinking, and blame-shifting. Denial is no longer an option.


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