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OBAMACARE CREATED BIG MEDICINE
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Matt Stoller
January 29, 2024
The Lever
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_ Looking at American health care is an exercise in despair, with
health conglomerates engaged in killing people for profit, with
endless 10-15 percent increases in annual premiums, and with judges
and policymakers not even knowing where to start. _
President Barack Obama signs the Affordable Care Act in 2010. (AP
Photo/J. Scott Applewhite) ,
The dominant trend of US social life over the last fifteen years is a
stagnating, and then declining, life span. There are many reasons for
this trend, such as violence, diet, suicide, drug addiction, and auto
accidents. But for many reasons, our monopolistic health care system
is a big part of the problem.
Monopolistic drug wholesalers
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the opioid crisis, and now, for the same reason, they are creating
shortages of prescription drugs. Untreated mental illness is
a significant factor
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elevated suicide rates. Not being able to get care when you need it is
associated with higher levels of death and permanent injury. More
fundamentally, knowing that there are no systems in place to protect
or care for you undermines any sense of hope.
It’s easy to describe what is happening as consistent with an
overall pessimistic tale about the U.S., one that is almost uniquely
American. The story goes that in the U.S., the richest country in the
world, citizens can’t get access to a doctor when they need it. Most
of Europe, and most countries globally, have universal health care,
and some have had it for more than a century. By contrast, we’ve
never had it here.
America almost achieved universal health care multiple times. Teddy
Roosevelt proposed it, so did Harry Truman, Richard Nixon, Jimmy
Carter, and Bill Clinton. They failed, largely because of the powerful
doctor lobby — the American Medical Association — standing against
it.
But if you look at the story from the perspective of most Americans
instead of the system at large, the story is not so rigid. For much of
the 20th century, the American health care system was one of very high
quality, with great doctors, hospitals, and an exceptionally
innovative, if overpriced, pharmaceutical system.
And access generally did increase, quite dramatically. We organized
our health care system by letting people collectively get together,
pool their money, and use this pool to pay for medical care when any
member needed it. From 1950 to 1965, the percentage of Americans with
surgical coverage jumped from 36 percent to 72 percent. In the 1960s,
as historian Alan Derickson noted, “health insecurity became the
exception rather than the rule.”
These pools are known as insurance companies, and today they represent
the classic dilemma of using ‘other people’s money’
that Brandeis noted
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the early 20th century. Even so, health insurance is very good to
have. And in 2010, the uninsured population in the U.S. was 45
million, or 15 percent of the country. That’s too many.
While there has also been frustration that insurers don’t cover what
they should, trying to penny pinch, and costing lives in the process,
for most Americans, the assumption was that the care is pretty good.
And it often was. So access, not quality, is the fulcrum for political
debate, along with some critiques of health insurers who refused to
fully cover necessary services.
Yet over the last twenty years, something fundamental in the American
health care system has changed. It’s not that people can’t get
insurance; indeed, America is more insured than it has ever been.
It’s that the underlying quality inside the health system is falling
apart. One obvious signpost, of course, is that doctors, distributors,
and pharmaceutical companies helped hook Americans on heroin-style
substances from the late 1990s onward, leading to the deaths of
hundreds of thousands of people. But it’s more than that scandal, as
gruesome as it is.
Americans spend more on care, and get less, than any other country.
And the reason for the dysfunctional care is that since the passage of
Obamacare, the firms who control our health care system have become
far bigger, and much more powerful.
The hospital sector, for instance, represents a third of health care
spending. Starting in the 1980s and accelerating after Obamacare,
hospital systems have merged
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giant monopolies, driving huge price hikes and increasingly poor
quality. Private equity has come into everything from ambulances to
urgent care to nursing homes. Monopolistic Group Purchasing
Organizations have created shortages
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hundreds of drugs, which reduce the equality of care. These are known
problems, and real.
But the one area where we’ve seen the emergence of a different and
fundamentally corrupt business model is the insurer space. In 2007,
for instance, UnitedHealth Group, one of the country’s biggest
insurers, had total revenues of $75 billion. In 2022, the firm, having
expanded far beyond insurance, had annual revenue of $325 billion. CVS
Health, which bought insurance giant Aetna in 2018, had a similar
trajectory, with $76 billion of revenue in 2007, and $322 billion in
2022.
UnitedHealthcare is not just an insurer, it employs around 50,000
physicians, it sells software. CVS is the largest pharmacy chain in
the country and has a network of clinics, while Humana is now the
biggest provider of home health care services in the country. Insurers
control home health agencies, ambulance providers, and data management
firms, as well as pharmaceutical middlemen.
Consider a few recent stories about how these firms operate. Last
year, _ProPublica_ and _The Capitol Forum_ did two investigations
into the health insurance industry. In one story
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their reporters profiled a UnitedHealthcare customer named Christopher
McNaughton who suffers from a crippling case of ulcerative colitis and
requires expensive medicine. UnitedHealthcare didn’t want to pay, so
it rejected claims paying for McNaughton’s care, deeming it “not
medically necessary” and lying about what his own doctor said.
McNaughton’s doctor fought for him, he sued, and he was able to keep
paying for medicine and stay alive. But it was horrific.
In another, separate story, reporters found that Cigna, encouraged by
private equity, engineered its system
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that customers who filed claims for care would be automatically
rejected. This practice, of denying care to those who paid for it, is
likely industry wide.
One might ask why customers would buy insurance from firms who
automatically deny claims. Once again, it’s a monopoly issue. Today,
three quarters of markets are highly concentrated
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and almost half have one insurer with more than 50 percent of the
market. Most people can’t choose their insurer, their employer
chooses for them. And it’s compelling to buy from a big insurer,
because it’s more likely a local doctor and hospital are in their
local network, at better rates. McNaughton, after years of lawsuits,
still buys his insurance from UnitedHealthcare.
Other People’s Money
What is weird about the American health care fiasco exposed
by _ProPublica_ and _The Capitol Forum_ is that we had supposedly
addressed it.
Fourteen years ago, America had a bitter debate over health care
access, and President Barack Obama won his fight for what was
ostensibly universal care. There were also supposedly rules about
denying people coverage. In 2010, the United States Congress passed
the Affordable Care Act (ACA), and President Obama signed it into law.
This law was largely targeted at the payers in the system — insurers
— and not so much providers — the entities who deliver care, such
as hospitals, doctors, clinics, pharmaceutical companies, ambulances,
etc.
The passage of this law was fraught. Obama didn’t want to let
private health insurers sabotage his health care crusade the way they
had Bill Clinton’s attempts in the early 1990s, the so-called
‘HillaryCare.’ The strategy Obama chose was to co-opt insurers
with sticks and carrots.
The stick was that if they didn’t get on board, they’d be punished
with a genuine national system that might push them out of the market.
The carrots were more extensive. The law forced millions of people to
become customers of these private insurers. It also expanded the
health insurance program for the poor, known as Medicaid, which could
be profitable for private insurers. Finally, Obama didn’t stop
private insurers from privatizing Medicare, which remains enormously
profitable for them. So the insurers got on board.
Despite these concessions, health policy wonks generally liked what
Obama had done, because it took on the main problem which was, as they
saw it, access. Obamacare was designed to expand health insurance
coverage to most people who didn’t have it, and in that sense, it
delivered. The number of uninsured Americans dropped from 45 million
to 27 million
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just a few years.
And yet, something was off. Obama had promised on the campaign trail
that he would sign a universal health care bill into law, and one that
would “cut the cost of a typical family’s premium by up to $2,500
a year.” In 2004, the average insured family of four paid $11,192
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health care costs; by 2022 that amount
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$30,260. That increase in cost for a family of four is the price of a
small car, every single year.
And that’s because prices have gone up, and not because there are
more doctors, beds, or care. While Obamacare did expand access, it
didn’t address the key problem in the U.S. health care system:
monopoly power. So prices kept rising. And still are.
To understand how it went so wrong, it helps to look at the one key
place where policymakers tried to impose real cost controls on
insurers, and how that attempt backfired.
The provision of the law most hated by payers during the Obamacare
fight was known as the Medical Loss Ratio
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a provision authored by then-Senator Al Franken, which required
insurers to spend a certain minimum percentage of the premiums they
collect on medical care compared to administrative costs (including
executive salaries). For some plans, the minimum was 80 percent, for
others it was 85 percent. If insurers spent below that amount, they
would have to mail the difference out as a rebate to customers.
The Medical Loss ratio was essentially a public utility rate
regulation capping profits for private health insurers. And it made a
lot of sense, intuitively. Payers could make some money, but they
would have to spend on care. If they didn’t spend what they
collected, they had to return extra money, which means they had an
incentive to lower prices.
At first, this provision seemed to work. The health care nonprofit KFF
reported that consumers saved an average of 7.5 percent on their
health insurance within the first few years, as payers mailed out
hundreds of millions
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dollars every year to customers.
After the passage of the Affordable Care Act in 2010, health insurance
companies pursued a variety of strategies to increase profits. They
focused on different kinds of products, especially Medicare Advantage
plans targeted at older Americans. And they sought to buy up rivals,
hoping to bulk up.
Aetna tried to buy Cigna, and Anthem sought to combine with Humana.
These were so-called horizontal mergers, which is to say, firms
seeking to combine with rivals who sold the same products they did.
Their goal was to simply grow their way out of the problem. If you can
only make a 15 or 20 percent margin, well, at least you can still
increase your revenue. In both cases, however, the Obama antitrust
division sued, and won.
So insurance company executives figured out another strategy. Why not
become more than a health insurance business? After all, if you’re
both a payer and a provider, you can tap into that other 85 percent by
directing insurance money to providers you control.
And so a new kind of merger trend in health care accelerated. Not
horizontal acquisitions, but what are called vertical mergers. Health
insurance giants stopped trying to buy each other, and started to buy
or be bought by entities with whom they negotiate to buy services. It
was “payers” buying or being bought by “providers.”
Before the Medical Loss Ratio, “payers,” which is to say insurers
whose job was to buy billions of dollars of goods and services for
their customers, sort of had an incentive to hold costs down. They
usually did this by being jerks to customers, denying them care they
needed.
But once the government capped insurer profits at 15 percent of
insurance revenue, these firms had a different incentive. They sought
higher revenue and higher spending, instead of cost controls. They
also wanted to buy providers so they could get access to that other 85
percent of the revenue. What better way to make money than by being
both the buyer and the seller?
Richard G. Frank and Conrad Milhaupt from Brookings noted
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trend last year. Payers could buy providers, and then send revenue to
related businesses. The two firms leading the charge were UnitedHealth
Group and CVS. UnitedHealth, one of the big four insurers, formed a
subsidiary in 2011 right after the passage of Obamacare called Optum.
Optum began rolling up physician’s practices, software and analytics
firms, medical clinics, and pharmaceutical middlemen.
In 2018, CVS, which owned large pharmacy chains and the pharmacy
benefit manager
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health insurer Aetna. Earlier this year, CVS completed its acquisition
of Signify Health and Oak Street. In 2018, Cigna bought Express
Scripts, the largest pharmacy benefit manager in the country.
Humana bought
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a health care delivery firm. Elevance, formerly Anthem, became a
pharmacy benefit manager, and cut deals with a large number of medical
providers.
In 2019, UnitedHealth sent 18 percent of its payer revenue to itself,
while CVS’s Aetna sent 13 percent to its own clinics and pharmacies.
That number has no doubt increased dramatically over the last three
years.
The Need For A Glass-Steagall In Health Care
There have been hundreds of acquisitions since the Affordable Care Act
was signed, and the American health care system is now a whole
different beast. Talking about insurers, or pharmacy benefit managers,
or drug store chains, or doctor practices in isolation, simply
doesn’t make sense anymore.
We are dominated by health care conglomerates. A few years ago, the
Drug Channels Institute showed this dynamic with an infamous chart,
purely in the drug middleman space, mapping out immense and confusing
consolidation
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The shift in the practice of American medicine has been fundamental.
You simply cannot hang a shingle and become an independent doctor or
pharmacist, because it is impossible to get reimbursed in any
reasonable manner. Becoming a doctor today means you are going to be
an employee of a giant conglomerate or hospital chain.
And the prices for consumers, whether through premiums, deductibles,
co-insurance, or any of the other sadistic methods dreamed up by
health care actuaries, are higher and more confusing. Health care
benefits increasingly include consulting services to help navigate
health care benefits, which is insane. And that’s if you’re well
off.
The heart of the problem is that there is a conflict of interest
between being a payer and being a provider. If I’m choosing to spend
money on behalf of a customer, and I’m also on the other side of the
transaction, I have an incentive to steer that purchase to where I
benefit, and not solely for the benefit of the customer.
To address these kinds of conflicts, in previous eras in history,
we’ve regulated industries to prohibit certain forms of vertical
integration. (_30 Rock_’s clip
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explains conceptually what these kinds of mergers do.)
In the 1990s, for instance, when pharmaceutical firms owned
pharmaceutical middlemen, the FTC forced them to divest
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pharmacy benefit managers to make sure they would have no incentive to
promote certain drugs over others. There are also a host of laws, like
anti-price steering provisions, anti-kickback laws, and laws like the
Robinson-Patman Act, that block conflicts of interest across a variety
of industries. The Glass-Steagall regime was one such law in banking
that kept investment and commercial banking apart — but there
have been many others
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Over time, economists and policymakers came to think of vertical
mergers as harmless, or even efficiency-enhancing. So when the
Affordable Care Act passed, Congress didn’t do much to prohibit
conflicts of interest, as the goal was access to a system that most
wonks thought was pretty good. Instead, Congress capped insurer
profits through the Medical Loss Ratio.
But without prohibiting the combo of providers and payers, this
well-meaning public utility profit cap, combined with new demand for
insurance, instead fostered a dramatic roll-up of power. Today, CVS
and UnitedHealth Group are health care tyrants, and everyone else must
keep pace, either through mergers or other aggressive merger-like
contracting practices.
So what are the costs of this vertically integrated hell-space? The
underlying quality of care is declining as health care conglomerates
focus on exploiting conflicts of interest. Consider three legal
actions in recent years.
In March 2022, CVS Health was sued
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the False Claims Act for fraud. A whistleblower alleges that CVS was
lying to its insurance customers, forcing them to buy more expensive
brand name drugs when cheaper generic drugs were available. The reason
CVS would lie to customers is that it would get payments on the
back-end from pharmaceutical producers whose products it had helped
sell. Many customers couldn’t afford those higher prices, even
though the government had paid for CVS to give them a Medicare drug
plan that covered the costs.
Similarly, last March, Ohio Attorney General David Yost sued
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Express Scripts subsidiary, as well as Humana Pharmacy Solutions,
calling these firms “modern gangsters” for raising prices on
people who needed medicine, and cutting revenue to independent
pharmacists.
Yost wasn’t the only aggressive regulator. Oklahoma Insurance
Commissioner Glen Mulready threatened
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strip CVS of its right to operate
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the state as a pharmaceutical middleman because the firm forced
patients to use its poor quality mail-order and retail pharmacies
instead of their preferred pharmacies, and then lied about it.
All three of these actions came about because the entity was a payer,
aka it was buying things for a client, as well as a provider, which is
to say, it was selling stuff to that client. And it’s getting worse,
because the judiciary doesn’t recognize the threat of such vertical
mergers.
CVS’ Purchase Of Signify
Another cost is low-level forms of fraud and monopolization,
especially where we spend the most on health care: the elderly. Since
the early 2000s, the U.S. has been privatizing the Medicare system.
Most people above 65 now have their health insurance paid for by the
government, but choose from among multiple private plans, in what is
known as the Medicare Advantage program.
The Medicare Advantage market has rapidly become one of the largest
sources of spending for the federal government, accounting for $361
billion of federal spending in 2021, and is expected to grow
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an astounding $943 billion by 2031 as the population ages. Along with
this growth is waste. Taxpayers overpaid Medicare Advantage health
insurers by as much as $25 billion
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alone, meaning nearly 8 percent of all spending in the program could
have been overpayment.
The largest health insurance companies, unsurprisingly, have been
capturing the market to monopolize profits. The Top 4 plan providers
control
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62 percent of Medicare Advantage plans, with even greater
concentration
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local levels.
And it’s getting worse, precisely because of the lack of a
separation between payers and providers. Last year, CVS Health
acquired one of the critical cogs in the Medicare overpayment scheme
— the dominant “in-home evaluation” company Signify Health —
in an $8 billion deal. This acquisition is a classic payer-provider
conflict of interest.
Signify Health is the number-one provider of in-home health
evaluations for Medicare Advantage patients. Signify has a network of
over 10,000 traveling nurse practitioners and physicians across the
country who drive to Medicare Advantage patients’ houses to perform
in-home evaluations that generally last around an hour, supposedly
trying to help with preventative care.
Signify charges Medicare Advantage plans around $330 per patient
visit. Why are the plans willing to pay $330 per visit for a one-hour
service that may not actually lead to improved care or lower costs
through preventative care? The answer lies in the way Medicare
Advantage plans are paid. Since Medicare Advantage pays out a fixed
amount per patient, and patients can have vastly different expected
costs depending on their preexisting conditions, Medicare developed a
system to compensate Medicare Advantage plans for taking on riskier
patients.
The health status of a patient is called a risk score, which is
calculated using a formula that considers all diagnosis and existing
conditions of a patient. For example, if a patient has diabetes, all
else equal, that patient will have a higher risk score than a patient
without diabetes, and the government will pay the Medicare Advantage
plan more per month for insuring that patient.
This intuitively makes sense, but in practice can lead to abuses of
the system where plans attempt to make their patient populations
appear less healthy than they actually are. As it turns out,
Signify’s annual visits are an excellent opportunity to
“diagnose” patients, and there have been accusations that Signify
pushes their doctors to aggressively diagnose conditions so that plans
can be paid for patient conditions that they have no intention of
proactively treating.
This is not simply idle speculation. In October 2022, the DOJ sued
CIGNA
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alleging these practices are fraudulent. The DOJ’s complaint alleges
“diagnoses codes were based solely on forms completed by vendors
retained and paid by CIGNA to conduct in-home assessments of plan
members.”
This brings us to CVS’s acquisition of Signify. Although Signify has
already faced allegations of pushing hard to diagnose patients with
conditions that would drive up risk scores, it is inevitable that it
would have even more incentives to drive up risk scores under the
ownership of CVS.
Currently, Signify can be motivated to push higher risk scores to
please its customers (insurance companies getting paid by the federal
government). However, Signify as an independent company at least has a
layer of separation from the profits received by these customers from
increasing risk scores.
Once Signify is owned by CVS, a risk score that increases payments
from the Center for Medicare and Medicaid Services to CVS’s insurer
subsidiary Aetna will directly benefit the corporate entity. CVS
management will know this and be incentivized to push Signify’s
clinicians to diagnose more aggressively, driving increased revenue
and costing the federal government and taxpayers.
Signify is the largest in-home evaluation provider in the country,
with its only significant competition coming from its much smaller
competitor Matrix Medical Network. Signify’s largest customers
besides Aetna (CVS) are Humana and UnitedHealth. These massive
vertically integrated health care companies are likely to have the
bargaining power to remain important customers of Signify. After all,
Signify will need additional volume besides just Aetna customers to
profitably maintain its 10,000 clinician network.
The real victims will be smaller Medicare Advantage plans that
threaten to bring competition to the Medicare Advantage market.
Currently, Signify is incentivized to work with all health plans in
order to maximize in-home health evaluation volume and revenue. After
the deal, CVS will have the ability to monitor upstart Medicare
Advantage plans and either explicitly refuse to service plans that
threaten to take market share or provide a degraded or more expensive
product to slow their growth.
But the problems don’t stop there. CVS can spy on rivals with the
data it is collecting through Signature. The incentives are obvious
— CVS will have all of the data collected from Signify’s in-home
evaluations, meaning it will know which patients are likely to be the
most profitable as Medicare Advantage customers.
Remember, CVS will have data around each patient’s conditions and
diagnoses contributing to risk scores, and have its own data around
the expected profitability of patients with specific risk scores and
profiles. This could lead to Aetna targeting specific patients of its
competitors, making it even more difficult for small Medicare
Advantage plans to compete.
Aetna could also use Signify data in areas where it does not currently
offer Medicare Advantage plans to decide whether to enter that area to
offer plans. This would lead to areas with less expected profitability
missing out on competition from Aetna that it would otherwise have
received.
More broadly, this acquisition adds another stream of highly sensitive
data into the health care conglomerate CVS. CVS already controls the
largest pharmacy benefit manager in the country, the largest chain of
pharmacies in the country, one of the largest health insurance
providers in the country, and a growing chain of primary care
providers through its Minute Clinic Brand. The pharmacy down the road
will now be collecting health data from millions of in-home
evaluations across the country.
So What Now?
Why didn’t the Antitrust Division challenge this acquisition? Well
in 2022, the Antitrust Division tried to do something about vertical
consolidation, suing to block UnitedHealth Group’s purchase of
Change Health, which is a dominant payment network within the health
care system. But Judge Carl Nichols ruled against the DOJ
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partly on the grounds that vertical mergers are usually not harmful.
UnitedHealth wouldn’t want to jeopardize its reputation by taking
advantage of customers by spying on them, the judge claimed.
So it’s possible that when analyzing the Signify merger or other
similar acquisitions, the Antitrust Division is leery of a vertical
merger challenge, for fear of losing again and wasting resources.
Or perhaps there is a bigger game afoot. Let’s return to the initial
story, the denial of care by UnitedHealth of a customer with
ulcerative colitis. Antitrust enforcers have realized that these
episodes show a dangerous conflict of interest in the health
conglomerate business model.
“What are the chances,” asked _The Capitol Forum_, “that a
doctor who may have disagreed with UnitedHealth in the past would
continue to do so if he or she works for UnitedHealth, a large
employer of physicians and other health care providers?” Perhaps a
broader monopolization claim, a case like that against Google for its
conflicts of interest in the adtech ecosystem, is in the works.
But we don’t have to rely on antitrust enforcers. There’s also a
broader political backlash brewing. Anger over Obamacare has
dissipated, and politicians are beginning to cooperate to learn about
and address middlemen in health care.
A contact in the space told me that when he watches hearings, he can
see that Senators are much better versed in how pharmacy benefit
managers work today than they were even a year before. House
Republicans are leading a serious and credible investigation into
pharmaceutical middlemen. Oklahoma and Ohio are Republican states, and
they are the most aggressive regulators in the country, with Indiana
leading on hospital costs. The Federal Trade Commission is
investigating pharmacy benefit managers.
So there’s reason for hope.
Still, looking at American health care is an exercise in despair, with
health conglomerates engaged in killing people for profit, with
endless 10-15 percent increases in annual premiums, and with judges
and policymakers not even knowing where to start. But we’ve now
moved beyond the progressive frame of thinking the problem is merely
access to insurance, and have come to realize that the underlying
ability to deliver care is falling apart.
It’s only a matter of time before we start to reimpose some sort of
structural prohibitions on the industry. It’s too ugly a system, and
there are too many people dying not to try.
_Editor’s note: This story was originally printed on __Matt
Stoller’s newsletter_ BIG_,_ [[link removed]]_
where he explores the politics of monopoly power. _
_Matt Stoller is Research Director for the American Economic Liberties
Project. His first book Goliath, published by Simon and Schuster, was
released in October._
_The Lever is a nonpartisan, reader-supported investigative news
outlet that holds accountable the people and corporations manipulating
the levers of power. The organization was founded in 2020 by David
Sirota, an award-winning journalist and Oscar-nominated writer who
served as the presidential campaign speechwriter for Bernie Sanders._
* Obamacare
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* health insurance
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* Big Pharma
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* hospitals
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