“If you like your plan, you can keep it” and other half truths

If you like your plan and you like your doctor, you won’t have to do a thing. You keep your plan. You keep your doctor.

President Barack Obama, press conference, June 23, 2009

It’s one of those statements that will live on political infamy — like when George H.W. Bush said, “Read my lips. No new taxes” during his 1988 campaign and then later decided to raise taxes. And, in Obama’s case, he kept repeating it or at least a version of it as late as 2012.

So did former Health and Human Services secretary Kathleen Sebelius.

The bottom line is that under the Affordable Care Act, if you like your doctor and plan, you can keep them.

HHS Secretary Kathleen Sebelius, June 14, 2010

Obviously there are millions of people who were unable to keep their old plans, and some people have had to switch doctors. And conservative opponents of the Patient Protection and Affordable Care Act of 2010 (a.k.a. PPACA or Obamacare) have gleefully pounced.

Millions of people have lost their health insurance. Millions of people can’t see their own doctors.

Americans for Prosperity ad

The Administration is recognizing the grim reality that more Americans have lost health insurance than gained it under Obamacare.

Senator Marco Rubio (R-FL), press release, December 19, 2013

Cutting through the rhetoric — what really happened

All of the quotes above are misleading and confuse the issues at hand. (They are, after all, from politicians and political groups, so no one should be surprised at the sleight of hand.) They are all half truths. So I will try to parse them out and get to the whole truth.

The PPACA includes a provision for grandfathering plans that were already in place as of the date the law was signed (March 23, 2010).

SEC. 1251. PRESERVATION <<NOTE: 42 USC 18011.>> OF RIGHT TO MAINTAIN EXISTING COVERAGE.

(a) No Changes to Existing Coverage.–
(1) In general.–Nothing in this Act (or an amendment made by this Act) shall be construed to require that an individual terminate coverage under a group health plan or health insurance coverage in which such individual was enrolled on the date of enactment of this Act.

Patient Protection and Affordable Care Act of 2010 (emphasis added)

Based on that, it certainly sounds like what Obama and Sebelius said was completely true. So, with this very clear provision in place, how did so many people end up “losing health insurance?”

Insurers misleading the public

Private health insurance companies have been running afoul of state insurance commissioners for how they have communicated to their subscribers about changes related to the Affordable Care Act. Health insurer Humana was fined by the Kentucky Department of Insurance in 2013 for sending out misleading policy amendment letters to 6,543 subscribers. The penalty was $65,430 — $10 per subscriber who received the misleading letter.

While nothing in the law requires insurers to discontinue plans that were in place before the law was enacted, there’s also nothing in the law that prohibits them from discontinuing these plans. And private insurers were discontinuing plans long before Obamacare.

Even the conservative Heritage Foundation acknowledges that is what happened in this case.

But since the enactment of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), insurers have been broadly prohibited from canceling or refusing to renew coverage. One of the few exceptions to that prohibition is if an insurer discontinues a particular plan or type of coverage. In such cases, the insurer must provide the affected individuals the option to enroll in any other applicable coverage that the insurer offers.

That is largely what happened with the 4.7 million plan cancellations that were reported at the end of 2013. The insurers were discontinuing their pre-Obamacare plans and offering policyholders replacement coverage that complied with Obamacare’s wide variety of new mandates and regulations.

The Heritage Foundation, “‘Junk’ Health Plans and Other Obamacare Insurance Myths,” February 11, 2014 (emphasis added)

This was no surprise

In June 2010, Obama administration officials from the Department of Health and Human Services predicted that exactly this would happen while writing the interim regulations for grandfathered plans.

Using these turnover estimates, a reasonable range for the percentage of individual policies that would terminate, and therefore relinquish their grandfather status, is 40 percent to 67 percent. These estimates assume that the policies that terminate are replaced by new individual policies, and that these new policies are not, by definition, grandfathered.

U.S. Department of Health and Human Services. “45 CFR Part 147: Interim Final Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a Grandfathered Health Plan Under the Patient Protection and Affordable Care Act.” Federal Register, Vol. 75 No. 116, June 17, 2010.

So, Obama and Sebelius should have known better than to over-promise, especially in a situation where the thing that they promised would not happen would happen in such a clear and obvious way. Experts were even predicting this scenario long before the interim rules were written.

In October 2013, the White House was forced to clarify — saying what they should have said all along.

Nothing in the Affordable Care Act forces people out of their health plans: The law allows plans that covered people at the time the law was enacted to continue to offer that same coverage to the same enrollees – nothing has changed and that coverage can continue into 2014.

White House spokesperson Jessica Santillo, cited by USA Today, October 29, 2013

Yet for the people whose plans were canceled, Santillo’s more accurate explanation is a distinction without a difference.

Americans losing their doctors

A contract dispute close to home

Here in the Greater Indianapolis area where I live, we are home to Anthem Blue Cross and Blue Shield, one of the nation’s largest health plans. (I was employed there from 2008 to 2012.) But we also have some major hospital systems. The two largest are Indiana University Health and St. Vincent Health.

When Anthem began offering its health plans for Indiana in the federal exchange on HealthCare.gov, the company knew it was going to be competing not only with the only other exchange player (a non-profit called MDWise that is partly owned by Indiana University Health) but also with the individual mandate penalty for not buying insurance at all. So, in order to keep premiums on the exchange plans to a minimum, it offered low reimbursement rates to physicians and hospital systems participating in the exchange plans. Although the third- and fourth-largest hospital systems in the area (Community Health Network and Franciscan St. Francis Health Network) accepted the lower reimbursement rates, Indiana University Health and St. Vincent Health balked at the low reimbursement rates, leaving them out of network for anyone choosing an Anthem plan on the exchange. The MDWise plans on the exchange were priced comparably but included Indiana University Health and St. Vincent Health.

Perhaps more disconcerting to many Americans than having their plans discontinued was not always being able to keep their in-network physicians. But can this really be blamed on Obamacare?

Not in the slightest. There is nothing in the law that explicitly addressed this one way or another. The PPACA did not require people to change physicians, but it also did not explicitly require physicians to participate in any particular health plan. And contract disputes between physicians, hospitals, and health plans have been going on forever.

By 2000, many providers were pushing plans for large payment rate increases and more favorable contract terms, such as reimbursement based on a percentage of charges, to recover ground previously lost to health plans. Providers also experimented with more aggressive bargaining tactics, such as contract terminations or threatened terminations, to seek new contracts. Negotiations in a number of cases degenerated into bitter public disputes. Providers’ negotiating success emboldened other providers to push back and contract showdowns became commonplace across the country during 2000-01.

White, et al. “Getting Along or Going Along? Health Plan-Provider Contract Showdowns Subside.” Center for Studying Health System Change, Issue Brief No. 74, January 2004 (emphasis added).

The other side of the coin

Up until this point, I’ve been very critical of the Obama administration’s messaging for being imprecise or perhaps even deliberately misleading. But the opposition was also misleading.

When it came to keeping a current plan or a current doctor, Obama promised something that the law could not deliver. But it would also be misleading to blame the PPACA for a problem that was going on before it was passed and would have continued to happen whether it was passed or not.

When Sen. Rubio said “more Americans have lost health insurance than gained it under Obamacare,” he was making a doubly misleading statement.

First of all, the timing of his statement (December 19, 2013) was a premature assessment of the enrollment period that was still going until March 31, 2014. So it would not be surprising by that point in time that few people had enrolled…especially given the early technical problems with HealthCare.gov. By the time the 2014 enrollment deadline arrived, 7.1 million people had enrolled in private health plans on the exchanges — and, the last time I checked, that’s more than 4.7 million. And that doesn’t include the people who became newly eligible for Medicaid in the states that opted to expand it.

Secondly, those who had their plans cancelled did not lose their health insurance in the sense that they became uninsured. Their existing plans were discontinued, and they were left with many options to choose a new plan in order to remain insured. If a shoe manufacturer stops making your favorite brand of shoes, does that mean that you’ve become shoeless? No, you can just buy a different brand of shoes. That’s how free markets work. In fact, it’s a fairly safe bet that many of the 4.7 million who had their plans discontinued became part of the 7.1 million new enrollees in exchange plans.

If the PPACA had been written in a more explicit way that forced insurers to maintain plans that were in place before March 23, 2010 or forced physicians to participate in plans in which they did not find the contract terms acceptable, then the Republicans could have rightly accused Congress of overreaching and micromanaging these contractual relationships. So there was no realistic solution available to this problem. A single-payer system might have allowed nearly everyone to keep their current doctors (who’s going to go out of network when there’s only one payer?), but it also would have terminated EVERYONE’S health insurance plans. But any policy that addresses the cost drivers in the health care system and reforms the insurance market is bound to be at least a little disruptive. And that’s not a bad thing because some disruption was needed. The Obama administration’s mistake was to over-promise.

What have we learned?

Health policy is complicated, and all politicians have to speak in sound bites to explain themselves to the public by way of the news media. Also, what’s not written into a law may just be as important as what is written.

Politicians of all stripes will always be motivated to spin what a particular bill or law actually does. Those who support it will over-promise its benefits, and those who oppose it will exaggerate its flaws. That goes for any kind of legislation, not just the PPACA.

Obamacare under assault from disingenuous people looking for loopholes and political gain

I cannot think of a statute in our nation’s history that has ever been under such constant assault and sabotage after being passed than the Patient Protection and Affordable Care Act of 2010. In attempting to give states more control over their own destinies, Congress might have accidentally created enormous loopholes that undermine the law’s effectiveness. Perhaps they were overestimating conservatives’ sense of decency. In a truly stunning and baffling court decision, a 3-member panel of the D.C. Circuit Court of Appeals ruled 2-1 that subsidies for health insurance could only be granted through exchanges set up by states since that was the letter of the law. And, since most states refused to set up their own exchanges (usually the states run by Republican legislatures and governors), residents of those states had to use the federal exchange. Even the judges themselves knew they were helping people to get off on a technicality.

We reach this conclusion, frankly, with reluctance. District of Columbia Appeals Court judge Thomas Griffith

Fortunately, the 4th Circuit Court of Appeals in Richmond correctly interpreted Congress’s intent (perhaps they were paying attention during the debate over the bill) and ruled differently.

What they may not do is rely on our help to deny to millions of Americans desperately-needed health insurance through a tortured, nonsensical construction of a federal statute whose manifest purpose, as revealed by the wholeness and coherence of its text and structure, could not be more clear. 4th Circuit Senior Circuit Judge Andre Davis

So this seems like an issue destined for the Supreme Court if the 11-member appeals panel in the D.C. Circuit doesn’t overturn it themselves. I wouldn’t overreact to it yet.

The Healthy Indiana Plan 2.0 as a form of Medicaid expansion: Part 1 – Background

On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act (which you might know better as “Obamacare”) into law. Unless you have been in a coma for the past five years, you probably know that this is a controversial law that the GOP has been trying unsuccessfully to repeal ever since that day.

In addition to the legislative attempts to repeal the law, a landmark Supreme Court case (National Federation of Independent Business v. Sebelius) challenged the constitutionality of the law’s mandate that individuals purchase health insurance or pay a penalty.

On June 28, 2012, the Supreme Court ruled on the case, deciding 5-4 in favor of former Secretary of Health and Human Services Kathleen Sebelius, which meant the law would be upheld.

Although the case was mostly a victory for Obamacare, part of the Supreme Court’s ruling did weaken one important provision of the law that required states to implement an expansion of Medicaid to adults with incomes up to 133 percent of the federal poverty level. The court ruled that the federal government could not compel states to participate in the Medicaid expansion if the state legislatures and governors did not want to.

What followed was a split along partisan lines — basically the states with Democratic governors and legislatures implemented the Medicaid expansion, and states with Republican governors and legislatures (and states with divided governments) opted out. One of those opt-out states was my home state of Indiana.

In 2008, Indiana (at that time under Governor Mitch Daniels) implemented a Medicaid waiver program called the Healthy Indiana Plan, or HIP. HIP was based on principles of health savings accounts and high-deductible health plans, which are generally favored by conservatives over more comprehensive health coverage requirements. You can read more details about how HIP originally worked here.

The original HIP program did not meet the standards of essential health benefits required under the Affordable Care Act, and it capped enrollment based on a fixed budget rather than allowing anyone who met the income guidelines to enroll, so there was concern that the program would be suspended…it has been temporarily extended through 2014 to allow time for Indiana and the federal government to determine where to go from here.

Now Indiana Governor Mike Pence has proposed using a modified version of the Healthy Indiana Plan (known as HIP 2.0) to substitute for expanding traditional Medicaid under the Affordable Care Act. He has been negotiating with the U.S. Department of Health and Human Services about this for some time now, and it is widely believed that they will be able to reach some sort of compromise.

Pence has received criticism from both the left and the right for his approach. (He has also received bipartisan praise.) But my real question is whether HIP 2.0 is good public policy. I’ll explore in more detail how both version of HIP were designed and the policy implications of that in Part 2.

Want to save babies? Focus on improving women’s health, not picketing Planned Parenthood

Family planning is an important part of women’s health. And reproductive health includes access to abortion that I believe should be safe, legal, and rare. I’ve spent a lot of my time trying to bring down the rate of abortions. And it has been my experience that good family planning and good medical care brings down the rate of abortion. Keeping women and men in ignorance and denied the access to services actually increases the rate of abortion. — Secretary of State Hillary Clinton, Testimony before House Foreign Affairs Committee, 2009

It wasn’t too long ago that I stumbled upon an anti-abortion protest outside of a Planned Parenthood clinic that was across the street from my shopping destination. Even though I adamantly disagree with the protesters and doubt that they understand all of the non-abortion services that Planned Parenthood provides, I think their hearts were in the right place. They want to protect fetuses that they consider to be babies.

To further their efforts, pro-life groups have fought to pass anti-abortion laws (which are frequently overturned in court as unconstitutional, most famously in Planned Parenthood v. Casey) and opened crisis pregnancy centers that show ultrasound images to pregnant women (a tactic proven to be ineffective at reducing induced abortions).

I’d like to suggest that if their real goal is to save the lives of babies in the USA — both born and unborn — they might want to focus their energies elsewhere.

Good news/bad news from the USA

First, the good news from the USA. In 2011, induced abortion rates in the United States fell to their lowest since the landmark Roe v. Wade decision. Another good sign is a declining infant mortality rate…reported at 6.05 deaths before the first birthday per 1,000 live births in 2011, which was a 12 percent drop from 2005. So we’re getting a little better at this. The bad news is that better is still not very good by international standards.

In 2008, the United States ranked 27th in infant mortality rate among Organization for Economic Cooperation and Development countries, and a previous report linked the United States’ relatively unfavorable infant mortality ranking to its higher percentage of preterm births. Despite the recent infant mortality decline, comparing the 2011 U.S. infant mortality rate with the 2008 international rankings would still have the United States ranked 27th. — U.S. Centers for Disease Control and prevention, NCHS Data Brief, April 2013 (emphasis added)

 

Not getting much value

US not getting much value

Despite spending more than any other nation on earth for health care per capita, the United States (depicted on the far righthand side of the chart) still lags behind many other countries in terms of infant mortality and abortion rates. Although the United States is not the worst performer on the list in terms of abortion and infant mortality, countries like Mexico and Estonia spend far less on health care per person. Please note that lower numbers for all variables always indicate better performance in this chart.

But is more health spending the answer? A quick glance at the data would suggest not, since the United States has the highest health care spending on earth, both in real dollars and as a percentage of gross domestic product.

In terms of the unborn, even though the U.S. abortion rate is dropping, it’s still too high. In 2008, the United States reported a rate of 20 induced abortions per 1,000 women ages 15-44. Germany, the top performing country, reported only 7.

What’s interesting is the inverse correlation between restrictive abortion laws and the number of abortions…especially the number of unsafe abortions. That is, the more restrictive a country’s abortion laws are, the more abortions occur. And they are of the unsafe, back-alley variety that endangers women’s lives.

Although the legal status of abortion and risk associated with the procedure are not perfectly correlated, it is well documented that morbidity and mortality resulting from abortion tend to be high in countries and regions characterized by restrictive abortion laws, and is very low when these are liberal…We found that the proportion of women living under liberal abortion laws is inversely associated with the abortion rate in the subregions of the world. — Sedgh, G. et al. “Induced abortion: incidence and trends worldwide from 1995 to 2008,” from The Lancet, 2012

It’s worth pointing out that the study classifies the U.S. as having liberal abortion laws, but obviously the people picketing outside of Planned Parenthood are hoping to change that.

So what’s a country to do?

Just because the United States spends more on health care by far than any other nation in the world doesn’t mean we’ve been spending the money very wisely. Indeed 31 percent of U.S. healthcare spending is on administrative costs.

But Sedgh, G. and colleagues offer an idea.

Other studies have found that abortion incidence is inversely associated with the level of contraceptive use, especially where fertility rates are holding steady, and there is a positive correlation between unmet need for contraception and abortion levels. — Sedgh, G. et al. “Induced abortion: incidence and trends worldwide from 1995 to 2008,” from The Lancet, 2012

And if you don’t believe that, there’s this:

The United Nations Population Fund (UNFPA) has calculated that funding which provides modern contraceptive services in developing countries ($7.1 billion in 2003) prevents 187 million unintended pregnancies, 60 million unplanned births, 105 million induced abortions, 22 million spontaneous abortions, and 215,000 pregnancy-related deaths each year. — John Lomoy, Organization for Economic Cooperation and Development

Fortunately, the Patient Protection and Affordable Care Act (that is, Obamacare) goes a long way in improving access to contraception and other women’s preventive health programs that can also reduce infant mortality rates.

Cutting through the clutter

Unfortunately for a lot of born and unborn babies, the pro-life crowd has spread a lot of misinformation about the impact of the Affordable Care Act’s women’s preventive health provisions.

To be clear, Obamacare does not provide any funding for abortions, nor does any other federal program due to the Hyde Amendment. Even the Medicaid funds that Planned Parenthood receives are specifically for the non-abortion services it provides…just like any other health provider that provides these services.

The Supreme Court recently heard arguments in the Sebelius v. Hobby Lobby Inc. case in which Hobby Lobby argued that the law’s required coverage of emergency contraception (Plan B and Ella) violated their religious beliefs, and they should not be required to include it in their employees’ insurance plans. Pro-life groups have inaccurately referred to Plan B and Ella as abortifacients, probably for political reasons. In reality, even traditional birth control pills can prevent implantation in the uterus (not just conception), so the distinction is totally made up.

What’s the real story?

It is hard to say precisely what is prompting the pro-life movement to back policies that are so counterproductive to reducing the number of abortions, infant mortality and deaths among pregnant women. I have a few hypotheses:

  1. An overly simplistic view of policy. If you tell someone that something they abhor is legal, the intuitive response would be to say, “We should try to change that law” because they don’t want it to happen anymore. Of course, sometimes reality is counterintuitive. When abortion is not legal, desperate women still get abortions…it’s just that they are of the unsafe, back-alley variety. Conservatives who oppose gun control measures should understand this line of reasoning: if you make performing an abortion a crime, then only criminals will perform abortions.
  2. Unspoken motivations. Access to contraception and abortion has been a major step forward for the rights of women, and conservatives tend to be uncomfortable with that. Sure, the early feminists like Elizabeth Cady Stanton and Susan B. Anthony opposed abortion, but the abortions they opposed were unsafe and coerced by men. They had no concept of abortion in the way we think of it today as a safe medical procedure initiated by the woman.
  3. Political wedge issues. Politics is a very ugly business sometimes, and if you can portray your opponents are murderers, that’s pretty effective. That’s precisely what the GOP has done with the abortion issue, and religious conservatives have overwhelmingly rewarded them for it, often voting against their economic interests to vote for pro-life candidates.

Don’t fall for it. The data shows overwhelmingly the pro-life crowd is (perhaps unintentionally) harming the babies they claim to cherish.

Never underestimate procrastination

With only a few days left to go before the March 31 deadline, there was real cause for concern that enrollment on the health insurance exchanges would not come anywhere close to the goal of 7 million enrollees. After all, between October 1 and March 21, fewer than 6 million Americans had enrolled. Some had revised the goals down to 6 million…a major blow. But more than 1 million Americans jumped on, as they often do, at the last minute, enabling the exchanges to exceed the original goal of 7 million. It just goes to show that it’s human nature to procrastinate.

New HealthCare.gov ads smartly target young, athletic types who feel invincible

For all of the SNAFUs with the website and all of the delayed mandates, one thing that the Department of Health and Human Services has gotten right is the advertising.

New HealthCare.gov ads include retired basketball stars Earvin “Magic” Johnson and Alonzo Mourning as spokespeople to encourage young, healthy people to sign up for health coverage in the marketplace.

With new rules prohibiting insurers from discriminating on the basis of pre-existing conditions, it’s easy to get older, sicker people to sign up for health coverage because they obviously need it. But it’s harder to get young, invincible people to see the value in purchasing health insurance since they don’t use much health care. But it’s also critically important to get them into the risk pool because, without them, there is a high risk of adverse selection in the risk pools, driving up insurance premiums for everyone. That’s why the much-maligned individual mandate is so important and also entirely inadequate.

While a bunch of young men on a basketball court probably can’t relate to cancer treatment, they can often relate to sports injuries. So it’s obvious why athletes are compelling spokespeople for this cause.

But why Johnson and Mourning instead of current players who are more relevant? Without going into their stories explicitly, many basketball fans understand that these men became seriously ill during their NBA careers. Johnson famously announced his HIV diagnosis in 1991, and Mourning’s career was also cut short by a rare kidney disease that required a transplant and ended his career. Both men had an air of invincibility but were faced with life-and-death circumstances. Both are survivors, and both required expensive medical treatments that most young people don’t think about.

So these ads are a stroke of genius by HHS. Will they be enough to close the gap of young, healthy people? Probably not. But they could definitely move the needle.