Kaiser Health News
October 5, 2010
Health Care Providers, Insurers: Accountable Care Organizations Bring Legal Worries
By Jenny Gold and Phil Galewitz
Doctors and hospitals eager to pursue a new model of health care being promoted by the Obama administration are raising concerns that they could run afoul of antitrust and anti-fraud laws, while insurers are warning that the new arrangements could lead to higher prices for medical care.
A key part of the health overhaul law encourages the development of "accountable care organizations" that would allow doctors to team up with each other and hospitals in new ways to provide medical services. Health care providers want to make sure their ACOs won't be accused of stifling competition or trying to fix prices when they bargain with insurance companies. Insurers, meanwhile, are expressing concern that providers could use the leverage of ACOs to demand higher prices.
Whether ACOs – which are just a concept for now – can be made to work could determine whether the health care law ultimately succeeds in lowering costs and improving care for consumers.
The federal health program for the elderly and disabled is due to start trying out ACOs in 2012, and some providers are scrambling to figure out how to apply the idea to privately insured patients as well. The antitrust rules mostly concern the private insurance market; in Medicare, the government sets the payment rates.
But America's Health Insurance Plans, the insurers' trade group, warned government officials against being too accommodating. It said in a recent letter that ACOs won't help consumers "if they are mere vehicles for price fixing or aggregating market power, and the antitrust agencies must continue their efforts in this area, using enforcement, guidance, and other tools."
Cory Capps, an economist at Bates White Economic Consulting, said, "We could end up in the worst world," one in which the delivery of care isn't made more efficient but providers accumulate "greater pricing power."
Susan DeSanti, director of policy planning at the FTC, said that the agency is working with CMS on the issues, and that guidance on ACOs will be issued to reduce uncertainty. "The antitrust laws are actually consistent with the goals of ACOs," she said. "The antitrust laws encourage collaborations when they are going to produce good things for consumers, like improved health care, and the only caveat is that the creation of market power shouldn't go along with that. But antitrust is not a barrier here."
Humana Medical Director Dr. Tom James said the insurer wants to show that "health plans have a role with ACOs," adding that it's important that ACOs be seen as more than cost-cutters. "If not done right, it could give the whole movement a bad name," he said. "We learned that with HMOs in the 1990s."
Comment: The Patient Protection and Affordable Care Act (ACA) promises us greater affordability through the establishment of accountable care organizations (ACOs). By adopting an as-yet-to-be-defined team approach to health care, the organizations purportedly would improve quality while controlling costs, theoretically by eliminating the excess services demonstrated by the Dartmouth Atlas (even though our much greater problem is under-utilization as demonstrated by Commonwealth, RAND, and others).
Who will be making the decisions on the structure and then the operations of these teams? Will it be altruistic members of the medical, hospital, and policy communities? Very unlikely, based on the history of the HMOs. Although the original HMOs were designed with the intent of providing optimal patient care (through a team approach!), the enabling legislation that brought a surge in managed care also brought out the entrepreneurial minds that replaced health care altruism with a business ethic of health care.
There is absolutely no doubt that the same will occur now, and actually has already begun. The entrepreneurs will be in control before the altruists can develop a process to fulfill the vision for a health care utopia. Although the teams will be designed along business lines, purportedly to control costs, the motivation of those in control will be to make money. Even if the teams are not owned by passive investors, the physicians and hospital administrators will still be manipulating the structure and operations to serve their own interests first.
The vision of various teams competing with each other by offering higher quality and lower costs is a fantasy. These teams will use their oligopolistic and monopolistic powers to drive costs up. Markets do work very well for those who are able to pervert them. Just look at the perversions of the private insurance industry that has helped to orchestrate the most expensive health system in the world, while squandering the opportunities to bring some measure of quality to our system.
Congress and the Obama administration have brought us ACOs, and you would think that they would feel some obligation as government stewards to provide guidance and oversight. But what has been their response? Susan DeSanti of the Federal Trade Commission said that "the antitrust laws encourage collaborations," and that "antitrust is not a barrier here."
As Cory Capps of Bates White Economic Consulting stated, "We could end up in the worst world," one in which the delivery of care isn't made more efficient but providers accumulate "greater pricing power."
The tragedy is that all of the attention that has been diverted to these ill-defined and perversely-incentivized ACOs has distracted our nation's policy makers from seriously considering reform that actually would achieve our goal of quality, affordable care for everyone - an improved Medicare for all. Focus, folks.