By Maanasa Kona and Sabrina Corlette

Employer-sponsored insurance coverage (ESI) gives important protection for 160 million People. Nevertheless, the generosity of many of those plans is in decline, leaving many employees and their households with excessive out-of-pocket prices, relative to their revenue. Employers performing alone won’t be able to reverse this decline. Coverage change is required, however assessing what insurance policies will work is difficult. On this collection for CHIRblog, we assess proposed coverage choices designed to enhance the affordability of ESI, the state of the proof supporting or refuting the proposed coverage change, and alternatives for adoption. Within the first of the collection, we reviewed the first drivers of the erosion occurring in ESI and recognized three acknowledged coverage choices to enhance affordability: regulating costs, decreasing anti-competitive conduct, and bettering worth transparency. The second in our collection assessed the proof for direct and oblique regulation of supplier costs and choices for policymakers. This submit, the third our collection, explores coverage choices to restrict supplier consolidation and anti-competitive conduct.

As we mentioned within the first half of this collection, excessive and rising costs of well being care are a driving issue within the declining provide charges amongst employers and the will increase in enrollee cost-sharing in ESI plans. A major contributor to those rising costs is consolidation in well being care supplier markets, which palms giant well being methods outsized leverage when negotiating costs with insurers or third-party directors engaged on behalf of employers. As this negotiating energy will increase, the costs these well being methods set turn into increasingly more decoupled from the precise prices of offering companies.

The Extent of the Consolidation Downside and its Documented Results on Costs

For years, the well being care market has been experiencing important consolidation, and the COVID-19 pandemic has solely accelerated this development. Between 1998 and 2021, there have been greater than 1800 hospital mergers decreasing the variety of hospitals within the nation from 8000 to 6000. One examine discovered that costs at monopoly hospitals are typically 12 % greater than at hospitals which have 4 or extra rivals; hospitals which have lately merged with one other hospital inside a five-mile radius have raised their costs by about six %. One other examine discovered that hospitals which can be a part of a well being system cost a shocking 31 % extra for companies than hospitals that aren’t half of a bigger system.

Past hospital mergers, well being system acquisition of doctor practices can be on the rise and a trigger for concern. In response to American Medical Affiliation information, the proportion of physicians employed in practices not less than partly owned by a hospital elevated from 16 % in 2008 to about 40 % in 2020. A systematic assessment of 15 research on the consequences of such vertical integration discovered that these sorts of acquisitions can considerably improve well being care costs. Considered one of these research finds that the sufferers of a vertically built-in doctor pay about six % extra than sufferers of unbiased physicians whereas experiencing no enchancment within the high quality of their care. Actually, one examine even discovered an improve in post-procedure problems for sufferers who’re handled by vertically built-in physicians. Past inflicting will increase in unit costs, vertically built-in physicians may inflate general well being care prices by referring their sufferers to pricier hospital-based imaging and outpatient departments as a substitute of extra inexpensive freestanding imaging amenities and ambulatory surgical facilities. Moreover, doctor teams which were acquired by hospitals and well being methods usually begin including on outpatient facility charges on prime of their skilled service price.

Coverage Methods to Curb Supplier Consolidation

What’s the Federal Authorities Doing About Supplier Consolidation?

The Federal Commerce Fee (FTC) and U.S. Division of Justice share the duty for imposing antitrust legal guidelines on the federal stage. The FTC specifically has lately expressed elevated curiosity in ramping up oversight over well being care suppliers. In 2020, the FTC ordered six insurance coverage firms to submit information that may assist the FTC examine the influence of hospital and doctor group mergers on costs and well being outcomes. In 2022, following President Biden’s government order supporting the enforcement of antitrust legal guidelines to forestall consolidation and anticompetitive conduct in well being care markets, the FTC efficiently blocked 4 hospital mergers.

Regardless of these elevated efforts, important gaps stay in FTC’s oversight over hospital mergers. Usually talking, the FTC has tried to dam solely about one % of mergers within the well being care market. Apart from useful resource constraints, there are a number of causes that the FTC’s oversight is so restricted. First, FTC is just notified about hospital mergers which have a price of $101 million or greater. Ninety % of personal fairness takeovers or investments fall beneath this threshold. Second, FTC is prohibited from imposing antitrust legal guidelines towards any non-profit hospitals, which make up about 45 % of the hospitals within the nation. Third, FTC’s present pointers solely concentrate on mergers inside one geographic area, excluding cross-market mergers, which made up greater than half the mergers within the final 10 years. Early in 2022, the FTC and  the Division of Justice launched a joint public inquiry to replace its common merger pointers (not particular to hospital mergers), and it stays to be seen whether or not they are going to replace the hospital merger pointers to incorporate cross-market offers.

Fourth, the FTC has restricted capability to behave in states which have “Certificates of Public Benefit” or COPA legal guidelines that successfully immunize hospital mergers from federal antitrust legal guidelines and exchange them with (usually cursory) state oversight. Research of previous COPAs have discovered that they’ve resulted in will increase of business inpatient costs and declines in high quality of care. There’s additionally rising proof that Clinically Built-in Community or CINs, the place a bunch of well being care suppliers contract with each other to achieve sure high quality and value targets with out formally merging, may end up in the identical worth will increase as mergers however fly “under-the-radar” by way of triggering antitrust oversight.

What Can States Do About Supplier Consolidation?

States might observe the FTC’s lead and improve their very own oversight of supplier consolidation. A latest examine discovered that states with stronger antitrust legal guidelines have been extra prone to scrutinize hospital mergers. The examine identifies eight states with sturdy legal guidelines together with Oregon, which lately enacted laws to set up “essentially the most complete well being care merger assessment processes within the nation.” Oregon’s merger assessment authority permits it to scrutinize proposed offers that may in any other case fall beneath the FTC’s $101 million threshold. Nevertheless, the examine famous that having sturdy antitrust legal guidelines, whereas obligatory, is in the end inadequate, provided that even in states with sturdy legal guidelines, most challenged mergers finally succeeded.

Nineteen states presently have COPA legal guidelines in place, whereas 5 states have repealed their COPA legal guidelines. The remaining nineteen states might repeal their COPA legal guidelines and permit federal antitrust enforcement to supervise a better proportion of mergers than they presently do. Wanting repealing COPA legal guidelines, state regulators in control of processing COPA purposes might scrutinize candidates extra strictly. Just lately in New York, a COPA software fell by way of seemingly as a result of the merged entity would have had a mixed share of practically two-thirds of the commercially insured inpatient companies in a single county.

States additionally probably have the authority to assessment supplier mergers by way of their group profit necessities for nonprofit hospitals and certificates of want (CON) legal guidelines, which require hospitals to acquire state approval earlier than establishing or increasing their companies. Nevertheless, leveraging CON legal guidelines generally is a double-edged sword as a result of these legal guidelines have additionally been criticized at occasions for stifling completion by serving as a barrier to market entry.

Coverage Methods to Promote Competitors

Anticompetitive contract clauses

Whereas growing scrutiny over mergers and acquisitions is necessary, consultants at a Bipartisan Coverage Middle panel on taming well being care costs famous that it may be too late for some markets which have already undergone important consolidation. In these markets, you will need to limit hospitals which have already amassed important negotiating leverage from utilizing that leverage to push for anti-competitive contractual language. Specialists have recognized six several types of contract clauses which have the potential to extend well being care costs, 5 of which favor suppliers:

• Gag clauses prohibit insurers or employers contracting with a supplier from releasing provider-specific worth or high quality data. Congress enacted the Consolidated Appropriations Act in 2020 banning gag clauses throughout all states.
• Non-compete clauses block doctor staff from competing with their employer for a sure period of time inside a sure geographic space.
• All-or-nothing clauses require insurers to contract with all amenities inside a well being system in the event that they wish to embody anybody facility within the system.
• Anti-tiering/steering clauses require insurers to put any facility or doctor related to the well being system in essentially the most most well-liked or lowest cost-sharing tier and prohibits insurers from implementing value-based insurance coverage design to steer sufferers away from these suppliers.
• Unique contracting clauses prohibit insurers from contracting with any competing suppliers.

Whereas the majority of states have some restrictions on non-compete clauses, only a few states presently have legal guidelines in place to limit all-or nothing, anti-tiering/steering, or unique contracting clauses. Nevertheless, insurers, employer teams and state attorneys common have had some success difficult these anticompetitive clauses in courtroom. For instance, a belief offering worker advantages to unions, a bunch of self-funded employers and the California AG efficiently reached a settlement requiring the massive well being care system Sutter Well being to stop using all-or-nothing contract clauses and anticompetitive bundling of companies.

Insurers and third-party directors performing on behalf of employers can use a state’s sturdy stance towards anti-competitive language as leverage throughout negotiations with giant well being methods to drive down costs. Nevertheless, there’s some proof that dominant well being methods would possibly have the ability to skirt such bans by both solely extracting the settlement orally or, by say, requiring solely a minimal distinction in cost-sharing to get round any anti-tiering clause prohibitions. Specialists discover that states may be higher off combining restrictions towards anti-competitive contract clauses with enhanced supplier price assessment processes that give the state the flexibility to assessment insurer-provider contracts to make sure they don’t seem to be anticompetitive. For instance, Rhode Island offers its insurance coverage commissioner the authority to assessment insurer-provider contracts and reject people who lead to unreasonable worth will increase.

Certificates of Want (CON) Legal guidelines

About half the states presently have CON legal guidelines in place, which require hospitals to accumulate the state’s approval earlier than beginning or increasing a brand new service. There’s some disagreement amongst consultants on whether or not these insurance policies promote or inhibit competitors. Critics of CON legal guidelines blame them for creating limitations to market entry for brand spanking new contributors, however there are conflicting research on the matter. Some present that CON legal guidelines have diminished the variety of obtainable suppliers, and different present that they’ve enhanced competitors by “limiting extreme enlargement by incumbents.” States with CON legal guidelines and excessive ranges of market consolidation might probably repurpose them to curb anticompetitive conduct by sturdy incumbents and to watch merger exercise whereas limiting their influence on new market entrants.

Wanting Ahead

In a assessment of the three essential coverage choices to curb well being care prices—worth regulation, selling competitors, and bettering worth transparency—the Congressional Funds Workplace ranked efforts to ban consolidation and enhance competitors as having a extra modest influence than worth regulation. They venture that insurance policies selling competitors are prone to have a “small influence” on well being care costs—about one to 3 % within the first 10 years with the potential for extra financial savings after 10 years, as a result of it may take time for these efforts to indicate outcomes. It’s onerous to place the toothpaste again within the tube on the subject of market consolidation within the well being care sector. As talked about above, plenty of markets are already closely consolidated, and worth regulation stays essentially the most promising path to curbing well being care costs. Nevertheless, for some markets, it’s not too late to beef up the assessment of mergers, and in all markets, regulators can proceed to be vigilant about anticompetitive contracting whereas discovering methods to maintain the door open to new entrants. Stopping consolidation and bettering competitors stay necessary instruments within the toolkit for policymakers seeking to curb rising well being care prices.