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Jonathan Halvorson

The Essential Bargain

The ACA has included a long series of bargains to achieve universal health care in the face of two forces: a multi-trillion dollar health care industry, and an implacable political opposition that refuses to bargain. Whatever the merits and blunders of the compromises taken, it should have come as no great surprise that the guidance released at the end of 2011 for the minimum benefit set (the “essential benefits”) was yet another compromise. It bowed to the existing authority of the states by allowing them leeway to decide the essential benefit package, despite the fact that the law itself seemed to intend a single national standard. There are limits, of course: ten categories of benefit must be covered (hospital, lab, maternity, dental, etc.) and the details on what is covered must be set by reference to one of four model plans:

• One of the three largest small group plans in the state by enrollment;
• One of the three largest state employee health plans by enrollment;
• One of the three largest federal employee health plan options by enrollment;
• The largest HMO plan offered in the state’s commercial market.

Predictably, immediate reactions were mostly negative. It was almost universally described as a “punt” by the administration, but a more accurate football metaphor is that the new guidance was a field goal. It’s certainly better than not scoring at all, and games can be decided by field goals. But it also means that your offense wasn’t good enough to close the deal on a touchdown. In that way, you can look at a field goal as one step closer to losing. For different reasons, that is exactly what some foes and supporters alike of the ACA will say about the new guidance.

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The Quantified Self: Making the Personal Public

“Only the shallow know themselves.” — Oscar Wilde

Human instrumentation is booming. FitBit can track the number of steps you take a day, how many miles you’ve walked, calories burned, your minutes asleep, and the number of times you woke up during the night. BodyMedia’s armbands are similar, as is the Philips DirectLife device. You can track your running habits with RunKeeper, your weight with a WiFi Withings scale that will Tweet to your friends, your moods on MoodJam or what makes you happy on TrackYourHappiness. Get even more obsessive about your sleep with Zeo, or about your baby’s sleep (or other biological) habits with TrixieTracker. Track your web browsing, your electric use (or here), your spending, your driving, how much you discard or recycle, your movements and location, your pulse, your illness symptoms, what music you listen to, your meditations, your Tweeting patterns. And, of course, publish it all — plus anything else you care to track manually (or on your smartphone) — on Daytum or mycrocosm or me-trics or elsewhere.

There are names for this craze or movement. Gary Wolf & Kevin Kelly call this the “quantified self” (see Wolf’s must-watch recent Ted talk and Wired articles on the subject) and have begun an international organization to connect self-quantifiers. The trend is related to physiological computing, personal informatics, and life logging.

There are all sorts of legal implications to these developments. We have already incorporated sensors into the penal system (e.g., ankle bracelets & alcohol monitors in cars). How will sensors and self-tracking integrate into other legal domains and doctrines? Proving an alibi becomes easier if you’re real-time streaming your GPS-tracked location to your friends. Will we someday subpoena emotion or mood data, pulse, or other sensor-provided information to challenge claims and defenses about emotional state, intentions, mens rea? Will we evolve contexts in which there is an obligation to track personal information — to prove one’s parenting abilities, for example?

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The HIT Hit: PPACA’s Health Insurance Tax

The 2010 health care law, the Patient Protection and Affordable Care Act (PPACA), hits small business with a barrage of inequities. Among the most egregious is the health insurance tax (HIT) launched by the law’s Section 9010. Ostensibly a tax on insurers, its real effect will be hundreds of billions of dollars of taxation on people who purchase coverage in the fully-insured market – mostly small business employers and employees and the self-employed. These are the people who usually generate around two-thirds of America’s new jobs.

In contrast, the HIT bypasses those who have coverage through self-insured plans – mostly big business, labor unions, and governments. Like PPACA’s essential health benefits and longstanding state benefit mandates, the HIT puts an anchor around the neck of small business while leaving larger organizations free to swim unburdened. And the anchor is a heavy one.

Over the first decade, the HIT will hit the fully-insured market with an estimated $87.4 billion tab, but that figure greatly understates the long-run financial impact. The tax is not implemented until the fourth year of the decade (2014) and is only fully implemented in 2018. The tax rises from $8 billion in 2014 to $14.3 billion in 2018 and in later years, even higher according to a complex (and at this point opaque) index, discussed below.

To put this in perspective, that $14.3 billion equals around 15 percent of the total small business expenditures on employee benefits in 2007. According to IRS data, proprietorships, partnerships, and corporations with up to $10 million in annual receipts deducted $96.8 billion that year for Employee Benefit Programs. An extra 15 percent or so constitutes an enormous blow to the ability of small businesses to compete against larger entities.

The HIT’s full magnitude will only become apparent in the second decade (2021-2030), when businesses and consumers experience 10 years of a premium-indexed, fully-implemented HIT. The second-decade cost is difficult to forecast, but may exceed $200 billion or even $300 billion. It all depends on how rapidly the law’s arcane index lifts the HIT beyond its $14.3 billion base in later years. There are two major sources of uncertainty in that index.Continue reading…

Essential Health Benefits: The Secretary’s Joystick

Beginning in 2014, the Patient Protection and Affordable Care Act (PPACA) hands the Secretary of the U.S. Department of Health and Human Services a joystick – the Essential Health Benefits (EHB) package – with the potential to rocket small-business health insurance premiums skyward. EHB is the menu of goods and services that must be covered under all exchange-purchased insurance plans and non-grandfathered small-group and individual insurance plans. By vesting one set of hands with control over EHB, small business faces permanent administrative uncertainty. At the same time, the brunt of EHB appears largely to bypass big business, unions, and governments.

The EHB requirements apply to policies purchased both in exchanges and in non-exchange small-group or individual markets. In the small-group and individual markets, annual or lifetime coverage limits on all EHB items are forbidden. And plans must have an actuarial value (AV) of at least 60 percent, meaning the plan’s total reimbursements must be at least 60 percent of the total qualifying health care costs incurred.

Section 1302 empowers the Secretary of HHS to define EHB, but gives little specificity beyond requiring that EHB include 10 general categories (e.g., ambulatory patient services) and “the items and services covered within the categories;” the Secretary is to also assure that EHB includes “benefits typically covered” by a “typical employer plan.” The meaning of these words in quotation marks is left to the Secretary (and future Secretaries) to define and redefine. The fluid definitions and concentrated discretion mean uncertainty, which carries a financial cost for small business.
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Vermont Chooses Single-Payer: Who Else Has an Appetite for Experimentation?

This past Monday, the Vermont Senate passed a Single-Payer bill. The House had already passed a similar bill and the governor is friendly to the legislation, so all that stands between Vermont and a single-payer law are a few formalities. At the moment, though, Vermont is alone in taking advantage of the Affordable Care Act to achieve universal coverage without private insurers. In fact, it isn’t clear that any other states are taking serious steps even toward a public option.

Massachusetts isn’t going there: it is doubling-down on its eponymous model that relies on private health plans, and seems hell bent on showing the nation that this model can work. The state just boasted that capitation rates will actually go down in 2012, allowing the program to grow enrollment without additional funding. It’s not difficult to imagine the feeling of responsibility weighing on administrators and Democratic officials there as they work to pull the levers of payment reform to reign in Partners HealthCare and other misbehavers.Continue reading…

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