Tuesday, October 29, 2013

When Is A Mandate NOT A Mandate?...When It Was Designed Never To Be Enforced...

I wrote to President Obama a couple weeks ago, advising him to consider trading a budget resolution and a debt-ceiling increase for a one-year delay in the individual mandate. I suggested there were both solid political reasons and substantive reasons for doing so.

He never got back to me. I mean, I understand; he's been a little busy...

Then last week, without acknowledging that the roll-out of new federal health exchange has been a multi-dimensional disaster, The White House released the news that there will be a six-week delay in the enforcement of the individual mandate. People will have until March 31, 2014, to apply for qualified health coverage before facing a potential penalty.

What penalty?...

I have to say, it has been three years since I read (parts of...well, the personally-relevant parts of) the legislation itself. So I was rather surprised to catch a rant by Lawrence O'Donnell, former Senate staffer, TV consultant (he helped make The West Wing seem like it could really happen), and now host of The Last Word on MSNBC, in which he shattered all the silliness surrounding the "delay Obamacare" shenanigans of the Tea Party and the feckless, follow-any-shiny-object fixation of the media on the roll-out, by pointing out that there really isn't a mandate in the law, except on paper...because the mandate was designed never to be enforced.

First, O'Donnell showed a portion of a White House press conference, in which an intrepid correspondent asked Press Secretary Jay Carney if the recent roll-out snafu would be severe enough to warrant a one-year delay in PPACA's individual mandate, which requires that all individuals either sign up for a health plan or pay a penalty.

Carney gave an answer that would make a Jesuit proud . In short words and simple sentences, Carney said essentially this: "The law is very clear. Individuals will not be subject to a penalty if they live in a state which has refused to participate in Medicaid expansion, as many states with republican governors have done, or if they live in an area which does not provide them with access to affordable health coverage."

The reporter asked for clarification: Might this be taken to mean that someone who can't buy health coverage because the marketplace website doesn't work be considered to live in a place which doesn't have access to affordable health coverage?

Carney repeated his answer.

In other words, yes: if the exchange website isn't working, nobody will be penalized.

But here is the real gem. The law takes great pains to enumerate the fines that might be levied over time upon individuals or employer groups who do not take the steps required by law. Much has been written and reported on that subject.

But the agency tasked with collecting those fines is the Internal Revenue Service. And here's the guidance the law gives to the IRS, from page 131 of PPACA:

"Section 5000 A Title 26- IRS Code Chapter 48- Maintenance of minimum essential coverage:
(A) Waiver of criminal penalties-
     In the case of any failure by a taxpayer to timely pay any penalty imposed by this section, such taxpayer shall not be subject to any criminal prosecution or penalty with respect to such failure.
B) Limitation on liens and levies-
     The Secretary shall not-
          ( i) file notice of lien with respect to any property of a taxpayer by reason of any failure to pay the penalty imposed by this section , or (ii) levy on any such property with respect to such failure."

Okay, so, I'm not a lawyer, but I know how to read, and it sure seems to me that, written into the law, there is a "get out of jail free" card for anybody who might, for whatever reason, fail to comply with PPACA's mandate. And given that "taxpayer" is a term which can apply equally to an individual or a corporation (which, as I understand it, is now a person, too), it seems to me that the law pretty explicitly says that no one will ever be required to pay a fine for non-compliance with the PPACA mandate...ever.

So, when is a mandate not a mandate? When the law it's written into clearly and explicitly forbids the enforcement agency from ever collecting any fine, ot taking any other adverse action, against anyone who doesn't comply with the mandate. Ever.

I'm not sure how aware of this provision Our Friends In Government might want people to be of this little magic trick. I'm sure supporters of the law would rather not know that people can freely avoid signing up for a health plan, since there's no penalty for not doing so: that might affect enrollment.

And chances are opponents of the law won't want people to know about it. either. That would mean that some Republican lawmaker would have to take to the ramparts and insist that the law be changed to require the IRS to levy and collect those fines, liens and judgments...which, of course, would be tantamount to a Republican insisting that the government raise taxes.

But for now, I know. And if you've read this, you know. And we have friends. Let's educate them, shall we?...

Monday, October 14, 2013

What $634 Million (And Counting) Hasn't Taught The Federal Health Exchange: Customer Experience Matters

About a half-dozen years ago, I was asked to develop a small group market entry strategy for a prominent regional broker. That gig led to our design and development of what would now be called a prototype health exchange platform.

The broker client wanted us to be particularly solicitous of the insurer partner which would be involved in the project: a very large national health insurer. Because we were going to try something new, it was particularly important that the insurer see this as a good deal for them. Our task was to help to "heal their pain."

So we started by asking the insurer what their biggest problem was in dealing with smaller groups. Their answer involved the "paper chase" entailed in setting up new business. Their application process was all on paper. A whopping 80% of the new business applications the company received from small groups needed to be returned to the group at least once because something was incorrect or incomplete with either the group or employee application forms. And when the applications were finally completed and sent to small group underwriting, only about three percent of the applications actually resulted in new business.

Those dismal outcomes meant a horrific amount of inefficiency and waste in the sales and underwriting process. Could we find a way to assure that the insurer wouldn't receive any applications until the entire group, including employees, had filled out their forms completely and correctly, so that they'd be "scrubbed" before underwriting received them?

This is not that hard to do, as anybody who's ever bought anything on-line can attest. We broke the application process into stages, and the applicant couldn't proceed to the next stage until the previous stage had been completed. And only when the entire process was completed could the group receive any kind of binding quote.

We launched the site and waited. And waited. And waited, while applications barely trickled in. Business owners were almost  never moving past the first couple pages of the process. We contacted a few to find out why.

Turned out the customer had no interest in doing all the work up-front. They wanted to "window shop" before starting down the application path, and wanted to compare products and receive quotes, even basic ones, on the plans they were shopping for. If they liked what they saw, if the plans' basic quotes seemed reasonable compared to their current coverage, then they'd apply.

We made a quick fix, allowing groups to obtain basic quotes after providing the system with some very basic information. If they liked the product mix, then they could apply.

And we added a couple other features which enabled business owners or their agents to track the application process in real time, identify who within the group had completed their applications and who hadn't yet, and created personalized messages to the employes who hadn't completed the task yet, reminding them that we needed their applications. This reduced a lot of aggravation for agents and group officials.

The result was a flood of group applications...hundreds...in the first couple weeks after re-launch. Which created another problem: the insurer's underwriting department was swamped with more applications than the could handle. They begged us to turn the process off for awhile so they could catch up.

We learned a great lesson. What the insurer wanted from the process..."scrubbed" applications, filled out accurately and completely...was at odds with the customers' desire for transparency and freedom to shop. We fixed the problem...for less than $100,000...to put the customers' interests first...and opened the floodgates.

Customer experience matters.

This "true life adventure" is what came to mind as I read accounts of the missteps which have occurred with the launch of the Federal Health Exchange/Marketplace/Call-It-Whatever-You Want. In the first week or so, fewer than 5,000 people had successfully wound their way through the Exchange's bureaucratic obstacles to buy health coverage. Literally millions more have been frustrated by long waits, error messages, and system crashes.

Experts say these are not "glitches" which can be easily or quickly fixed. The problems are built into the system, the result of two things: 1) the need to fulfill the expectations of the multiple federal agencies which all have a "piece" of the exchange process, all of whom seem to require a bunch of information from applicants before the agencies can do their jobs, which results in; 2) applicants being required to enter a bunch of personal financial data into the system to open an account before they can begin to shop.

Let's pretend for a moment that as many as 20% of "shoppers" are seriously ready to apply for and purchase coverage when they access the exchange system (my estimate is high, I'll bet). That would mean that 80% of those "shoppers" are being required to send a flood of unnecessary data into the pipeline before they even get to begin "window shopping."

So right now, the exchange pipeline is the focus of a "perfect storm:" the pipeline is choked with a lot of unnecessary data, which creates a lot of error messages and system crashes; federal agencies don't really know what 20% of the data they receive will be meaningful to them down the line; and most importantly, those who are seeking health coverage, and who will be paying for it...the customers...are getting frustrated, and will begin staying away by the millions.

The "What? Me worry?" attitude of HHS Secretary Sibelius and the rest of the Administration compounds the problem. They say, "these are little things which can be easily fixed." Customers continue to be frustrated. Word gets out that the federal exchange is a pain to work with. Insurers are frustrated that the flood of new applicants they've been told to expect aren't materializing. Nobody's happy. When an Administration official finally says, a month or three from now, "Everything's fixed; all are welcome," who's going to believe them?

It's a real clown show, which lends additional credibility to my confidence that, contrary to the fears of many insurers and brokers, the federal exchange will not be a particularly formidable "competitor" with the private sector (though the small number of  state exchanges may be a different story). The government doesn't know how to sell nothin'. Bureaucracies are good at following rules, not at serving customers...and especially not at anticipating their needs. These are not new lessons, but the current fiasco is yet another case in point.

What is really quite infuriating is that CGI Federal, the big-systems-consulting firm which won the (sole source) federal contract to build the exchange, and which might have been expected to bring at least some market savvy to the process, could be either so clueless or so cynical that they were unable to see this coming.

CGI is a big firm with a knack for obtaining big government contracts. It is possible that negotiating the procurement bureaucracy is more at the core of the firm's competency than its ability to do the job.

And of course, CGI can hardly be considered solely to blame. The fact that two-thirds of states blew off the implementation of their own exchanges in deference to the federal government, significantly affected the scale of the engagement...though not necessarily the complexity. And with all the political intrigue surrounding the implementation of Obamacare, consultants were reportedly unable to begin writing code until about six months ago. This makes the federal government, and particularly the HHS Department's Center For Consumer Information And Insurance Oversight (CCIIO), which "owns" the federal exchange, a consultant's ideal client: deeply troubled, under a tight deadline, with no particularly definitive idea about how to achieve its goals, but with very deep pockets.

Those deep, deep pockets have clearly been necessary. Because, while the original budget for building the federal exchange was "not to exceed" $94 million, by the time of launch, CGI and its subcontractors had been paid over $634 million for the work they've done to date...on a platform which doesn't work. And they stand to be paid a couple hundred more to correct problems at "the front end" of the exchange and to build out "the back end" administrative functions necessary to the ongoing management of the exchanges.

How many of those hundreds of millions of dollars were actually spent on user testing? Probably none. When development projects come under a time crunch, one of the first casualties is often user testing. And from CGI's perspective, the "user" is their client. The way to keep revenue flowing is to keep the client happy, and to get paid for putting out fires...even if they're fires you set yourself. Anyone who's uncomfortably watched "House Of Lies" on Showtime knows that most big consulting firms' core competency is selling services, not necessarily solving problems.

I'd like to think this is an expensive object lesson for CCIIO: people matter more than bureaucracies. The market matters more than rules.

Probably not though...When politics and greed team up, it's always the regular people who get it in the teeth...




Thursday, October 3, 2013

Dear President Obama...Give Your Opponents A Delay Of The Individual Mandate...And Watch 'Em Choke On it...

Dear President Obama:

We haven't met. For several years, as your PPACA was being formulated, I tried to share some advice with you about elements having to do with small business, health exchanges, and how to handle the issue of a mandate. You didn't take me up on any of it, but that's okay; I'm a consultant, so I'm used to giving folks advice that they're free to ignore.

I'm not a big fan of the law. I think it's an object lesson in political overreach, and too much of it depends for its effectiveness on organizations, advisory panels, and technical capabilities which don't exist yet.

But I will give you credit: the insurance reforms you put in place are generally helpful to real people. And the exchanges, though you're having some problems, are going to change forever (hopefully for the better) the way health coverage is bought and sold; I'm a big fan of that.

But now you're sorta stuck. The "Loyal Opposition" has closed down the Government, and we're nearing a debt ceiling crisis, and the parties are pretty dug in on their respective positions. Not cool...

I'm not in your shoes, but I HAVE had some experience in political negotiations with recalcitrant adversaries. And I've found that, in some circumstances, a good tactic is to give my opponents what they want, and watch them choke on it.. This might be one of those times.

If I WERE in your shoes, here's what I'd consider: I'd trade away a one-year suspension of the individual mandate in exchange for a clean Budget Resolution AND a long-term fix of the debt-ceiling. It would either break the impasse, or show your opponents up as complete dopes (as if more evidence were necessary).
And it would be a good deal for you. Here's why:

1) The big reason, of course, is that it would enable you and yours to get the country on a better long-term financial footing. That, I think, is the desired result. I hope you have the long-term interests of the country at stake, and this isn't just a penis-measuring contest. I'll take your word that it's not;

2) You've already pretty much unilaterally granted temporary exemptions to certain key constituencies...and big ones. Big Labor. Big Business. Even employers with more than 50 employees. So you've set a precedent; you WILL compromise PPACA when you deem it to be in your interests to do so. Right now, it's the little guys, individuals and small businesses...who are set up to take it in the teeth because of the mandate. These are the folks who most need the help that PPACA purports to provide. Why not give the little guys that same break you've already given most of the Big Guys?;

3) You already know that the Government is not currently in a position to administer the effects of the mandate effectively. You're relying on "self-reporting" income to the IRS as it relates to calculating taxpayer subsidies. And the means you wish to use to enforce the mandate...specifically, fines on those who don't purchase coverage...are hard to understand and currently impossible to administer. Seems to me a good time to give in on a point...when you don't know how you're going to follow through on it anyway;

4) Granting an exemption from the mandate will not keep anybody who WANTS to buy health care coverage from shopping for and obtaining coverage via the exchanges, be they public or private. I have argued (unsuccessfully, so far) that the vast majority of Americans WANT to have health coverage, and will buy it (especially with the help of subsidies) if it's available. My advice years ago was that, before you drop the hammer of a mandate, it would be wise to make sure the voluntary marketplace is working as well as it can, THEN drop the hammer on the relatively small number of folks who could buy coverage, and have it available, but choose not to purchase it. Judging by the early volume of folks rushing to check out the exchanges, there are PLENTY of folks who are looking to purchase coverage, and are willing to pay for it;

5) Your experts keep telling you that the mandate is necessary to get everyone "into the pool," that the young and healthy MUST buy into the system in great numbers in order to subsidize those who are not so young and not so healthy. The demographics of the "young invincibles" suggest that, even if they all signed up tomorrow, you'd still be short of break-even by about fifty percent, if your goal is six healthy people for every one of the one percent of big utilizers, and three healthy people for the top five percent of utilizers. The numbers never HAVE worked. And if you buy Item #4, and you let everybody who wants to buy coverage in the voluntary marketplace to do so, the sting of the mandate might not hurt so much, and;

6) A year from now, the exchanges will be operating a lot better, you'll have at least a few million folks signed up, we'll know better who they are, what rates they're paying, and have a few insights into their utilization of services. You'll simply have a much better story to tell...and maybe you'll have figured out how actually to administer the mandate.

To me, this looks like a pretty good deal for you. You right the country. Everybody who wants to buy health coverage can do so. You have time to get systems operating properly. An additional few million people get covered. You "cave" on one matter of "principle" which might be based on faulty assumptions anyway...But it seems to me that principle has sorta flown out the window a ling time ago.

I recognize that this argument might be entirely too sensible to succeed in Washington. But if you think about it for about 60 seconds, I think you'll see the value.

And imagine the looks on your adversaries' faces when they figure out you've gotten everything you wanted in exchange for bargaining away something which is of relatively little value, and might even make your signature legislative achievement better.

Don't thank me, JJP