Monday, August 31, 2009

A public option?

I've got no objection in principle to government subsidies for day care. We routinely hear that this is something to which we do not devote enough resources. On that point, the story about Latasha Jackson in yesterday's Journal Sentinel is instructive. Unless the fraud that she engaged in was rampant, running day care centers on state dollars must be very lucrative. When the subject is oil companies and health insurers, a 10% margin is often seen as "obscene" and somehow "windfall."

To run a Jaguar convertible and live in a 7600 square foot house, she had to be doing a lot better than that on annual revenues that had only recently reached $800,000. Unless you are independently wealthy, you can't afford a house like that without an income well into six figures.

Now maybe she did it by fraud, but it would seem that the fraud would have to be a lot more than marginal. She'd have to be saving tons of money by blatantly violating standards of care or raking in money by billing for lots of kids that she didn't care for. If that's so, it shouldn't have been so hard to catch her.

If its not true, then day care reimbursements must be quite lucrative. I would be surprised if that were so, but the story does raise the question.

Almost more surprising was the throwaway fact that Jackson's boyfriend earned $88,000 driving a van for another day care center. $88,000 for driving a van! Certainly that must be a mistake.

I understand that some conservatives will argue that this is "what you get" from government programs. I won't go that far. There is fraud in the private sector as well.

But the Jackson story ought to make us pause when we hear the idea that the public provision of goods and services is "purer" and undertaken only with the public interest in mind. Certainly the state wanted to provide day care for low income persons. But it also wanted to respond to political pressures and to do so in a way that wouldn't run afoul of the political etiquette that governs almost anything that touches the city of Milwaukee. Regulators are not "customers" interested in getting the best care for the lowest dollar, but bureaucrats who enforce prefabricated rules and only those rules that are within their purview.

Of course, Jackson was a private provider but she seemed to be entirely dependent - and satiated - by state funds that deprived her real customers - the parents of the children she served - with any incentive to shop around for a cheaper provider.

Sunday, August 23, 2009

Sunday: Music & Theology

It's back to school time. The Law School begins classes on Wednesday. This semester I am offering my seminar on Law & Theology, so let's use a theological concept to select our Sunday music. I choose "theodicy" - the attempt to justify God or, to put it in another way, consider why a good God allows evil.

Theodicy is not a big part of the seminar. In fact, it tends not to come up much at all. But it is a great theme for something like this.

One reaction to the problem of evil in a world we believe to have been created by a good God, seen as early as Job, is anger. God is wrathful. God is capricious. God is a bullet. Or so said Johnette Napolitano and Concrete Blonde. I get the political subtext about guns and the po-lice, but talk about singing the hell out of something. The squeak around 1:42 is brilliant. ("I'm a high school grad/I'm over five foot three"). Napolitano's rendering of the sign of the cross (the penultimate but not - perhaps significantly - the final time) as a slash across the throat suggests our dilemna. Moving, as she does, from left to right, or as Pope Innocent III described it, from misery to grace suggests an answer, echoed by the way in which she crosses herself at the end. All of that was probably unintentional, but my late Mother the artist taught me that a work of art is limited by neither the artist's intent nor interpretation.

Yesterday evening, the Reddess and I stopped by Veteran's Park in Port Washington where Shark, Jr.'s band SuperOpus was playing at the Paul Watry 20th Birthday Party and Memorial Scholarship Fund. (Paul was killed in a hit and run three years.) SuperOpus plays music from the 90s including this song from Radiohead. The awful truth? You bring it on yourself. Or, as the video for the song suggests, the truth is too awful to know. (Incidentally, Chris nails the guitar solo and vocals.)

Some people see evil as an active force and a rather powerful one. I have always thought this song mocked its power and pretension, while acknowldging its seduction. Some people have claimed that it is influenced by Russian novelist Mikhail Bulgakov's allegorical novel of good and evil "The Master and Margarita" but I never knew that and haven't read the book. We have, on the one hand, the devil seeking to trick you into saying his name (because you don't know that he is behind whatever compels you) and, at the same time, just about begging you to do so. He needs you more than you need him. I pick the live version at Altamont because I prefer the way the band played the song during it's '69 tour to the recorded version and because I like the dog visiting at 5:42. Of course a guy got killed at Altamont (but - later - during "Under My Thunb") and the '60s CTB'd right then and there. It was, like, 1976 the next day.

Some emphasize the fallen nature of man. Something that has gotten us into a bind, often expressed as the idea that we have made ourselves into Gods. The spirit of this is evoked in Bob Dylan's "License to Kill." Best line: "Man worships/at the altar/ of a stagnant pool/and when he sees his/reflection/he's fufilled."

Then there is the view that complete understandig will elude us but that we can know enough to want to persevere; to say, using Christian imagery from the Annunciation, to say yes to the unfathomable. We are, in the end, born to it.

Would the public option be Freddie or the Post Office: Public Option Talk, part 5

In my occasional series on health care, I have argued that most of the arguments for a "public option" in the provision of health care either don't withstand scrutiny or are based on questionable assumptions. What doesn't withstand scrutiny is the claim that a public option is needed to "introduce" competition or to keep private insurers "honest" (i.e., an argument that competition among private insurers somehow can't do what competition does in the provision of every other good and service we buy), the assertion that insurer companies (through things like policy rescission) somehow have an ability to avoid their contractual obligations that no other provider of goods and services does, the notion that "profit" is rent and of no value and that administrative costs are irrational and gratuitous expenses that accomplish nothing, and the belief that the state would not ration care. The questionable assumptions are that it is possible for a centralized determination of what is and is not good practice and that such determinations are "better" when made by politicians as opposed to business people.

But, we are told, even if all of this is true, a public option will only be one choice among many. No need to fear it because we can simply ignore it.

That strikes me as unlikely. For it to even have a chance to be true, the public option would have to bear the following characteristics.

It must charge participants the cost of their insurance.
You can't simply fund a public option by imposing a tax on employers who don't provide private coverage. If the current proposal for an 8% tax is less than what it costs employers to insure their employees, they will drop coverage. Unless someone other than the taxpayer bears the cost of that, there will be little incentive to do otherwise. Employers don't drop coverage now because it will harm them in the labor market. Unless employees forced into the public option bear the burden of the hidden subsidy (i.e, the government charges you $4000 and undertakes the $10000 obligation that such coverage really costs), the private market will be decimated. Even if the public option turns out to provide inferior service, there will few or no competing private options left.

The public option cannot be allowed to lose money. If its costs exceed its revenues for - or in - any given year, it could not be permitted to ask Congress for money. It would have to go into the private market and borrow money. Indeed, as the President himself has acknowledged, it ought to be required to borrow its startup costs at competitive rates.

The public option cannot be backed by the credit of the federal government. Any law establishing a public option would have to expressly state that under no circumstances will the federal government guarantee the obligations of the public option. If that doesn't happen, we will wind up with something like Fannie or Freddie. It will be able to undercut the private market by borrowing at a preferred rate not based on its own financial capability but by the expectation that the government will bail it out. This type of arrangement, as we have come to see, has moral hazard written all over it. In fact, the mere possibility may be reason enough to oppose a public option since Congress could always "take back" its promise not to back up the public option's obligations. Remember there was no commitment to back up Fannie and Freddie, but everyone assumed it would happen. (And they were right.)

The public option cannot be too big to fail. A corollary of the foregoing is that it must be made clear that the public option will be permitted to fail. In other words, the law cannot create a "right" to enroll in the public option that it is independent of its ability to survive as a going concern, i.e., the law can create a public option; it can't create an individual right that it continue to be available.

Subsidies cannot be gamed in favor of the public option. Any system of reform - heck, my system of reform - would provide subsidies to purchase insurance. They cannot be weighted or designed in a way that makes them more valuable for use in purchasing insurance that approximates the public option.

Regulations cannot make private insurance impossible. A prime example would be guaranteed issue at community rates. If that is not combined with a mandate or an extremely strong incentives to insure, it basically destroys the concept of health insurance. That will run private insurers out of business and, although the public option will also bleed money, it will survive as the only game in town.

If a public option does not have all - and, I suspect, other - features, we don't have a truly competitive system. Off hand, I can't think of any public provision of goods and services in competition with private providers that have been structured i this way, so I am skeptical that ObamaCare will be.

But even if it is, there is a further danger with a public option. Supporters of things like public options and single payer systems like to talk about Medicare. Medicare is a prime example of a monopsonistic player throwing its weight around. It pays whatever it wants whenever it wants and gets away with it because it has a lot of insureds. As a result, it worries little about what it's paying for. Good for Medicare but not as bad for our health care system as it might otherwise be because not everyone is eligible for Medicare and costs can be shifted to other patients. Thus, you subsidize Medicare through your taxes and your insurance premiums and what you pay for health care.

But everyone will be eligible for a public option and it will have more bodies than Medicare. When it throws its weight around, there will be less opportunity for cost shifting but what cost shifting does occur will increase the costs of private plans while lowering the costs of the public option, thus driving patients into the public option. As private plans lose patients to the monopsonistic purchaser, their costs are further increased. This is classic monopolization of a market.

Here's the twist. While the public option operates as a monopsonistic buyer, it will also - as it is successful - operate as a monopolistic provider of insurance. The resulting equilibrium will be a noncompetitive - or much less competitive - one. It will probably mean - as it does in single payer and public dominated plans abroad - less care more evenly distributed. The new equilibrium might be more "fair" but far less effective for those who are sick. This is why I would rather facilitate competitive markets with subsidies for those who can't afford to participate.

Of course, there are other possible scenarios. Opponents of strict enforcement of antitrust laws to avoid the creation of monopolies and oligopolies generally argue that, if the noncompetitive equilibrium is less than optimal, new entrants will come in as long as there are not insurmountable barriers to entry. Thus, even if the public option pushes out private providers, they can come back should the public option not meet the needs of the market. That could be the case here and the pushback against the Canadian system might be seen as an example of that.

The problem is that the high degree of regulation and extensive mandates that seem to be contemplated in ObamaCare are barriers to entry.

The other possibility is that the public option is almost immediately seen as inferior. That's the irony of President Obama's reference to the Post Office. FedEx and UPS survive because the Post Office is so bad that it can survive only with massive federal subsidies. (In fairness, there is probably a certain amount of subsidy to rural areas in play here.) Is Obama suggesting that the public option will that be bad? Not intentionally.

That people are concerned about the possibility of a public option destroying the private sector is, of course, borne out by the statements of candidate Obama and so many others that a public option is how "we get to" single payer. It is difficult to see how what Obama and Tammy Baldwin offered as an argument for this plan are "phony" and "dishonest" "distortions" when noted by its opponents.

I guess someone has "gotten wee-wee'ed up."

Thursday, August 20, 2009

A health care question?

Before I get back to the health care debate, a thought experiment. Who among us would chose European or Canadian health care if it meant that the technologies and medicines developed in the United States were unavailable to us? Put aside - for a moment - whether you think this is a "false choice"? Can't we at least agree that these systems would be awful without American technology?

Monday, August 17, 2009

Aks not

Eugene Kane "wonders" what it means if you "ask" about African Americans pronouncing the word as "ax." He is for proper pronunciation but scolds about not singling out particular ethnic groups for incorrect usage and pronunciation, noting that nobody cares about midwesterners who love "da Bears." That is, of course, a lousy example. It is quite common to make fun of that particular pronunciation. Especially north of the 42/30.

But I have a different point.

Mostly, I want to plug a fascinating book about linguistics for a general audience (that would be me) by Seth Lerer called Inventing English. A lot of improper usage and pronunciation (and I don't hesitate to call it improper)have roots in what once was considered to be, as Kane puts it, "the Kings English."

It turns out that "ax" (actually "aks") may be one of them. In fact, it appears that the King's English was exactly what it was. It seems that our verb "ask" replaced the Old English "acsian" through deliberate (as opposed to accidental)metatheis, i.e., twisting the order of sounds. (An accidental example would be saying pasghetti instead of spaghetti.) Sometimes these old vestiges of the language hang on as variations and variations are often regional, spreading by, as it were, word of mouth. It's not that modern speakers can't keep their Olde English straight from the modern version. They haven't the slightest idea why they grew up with an outmoded form.

These pronunciations (or even grammatical forms such as use of a phrase like "she be sick" which has roots, Lerer argues, in certain creole dialects)are "wrong" but they stem from what used to be right. Hanging on to "ax" instead of "ask" has been popular in the American south and, for that reason, among African Americans (and, as Kane says, among "corn-fed" whites if we can be permitted the occasional condescention). To use another example, go back to my initial post on Irish Fest and listen to Delores O'Riordan sing about how she liked it when she was "out dere." Gaelic has no "th" sound and Irish speakers of English often choose not to pronounce it - or at least not very clearly. It's not that they can't or even that they don't know that they should. It's not that Gaelic sticks to "simple" sounds (it has more individual sounds than English). It's that this is what they heard around the kitchen table.

The politically correct - and boring - response to this is to argue that all usages are equally valid. In some sense, they may be (although sometimes these changes served a linguistic purpose) but language doesn't exist in a vacuum. We don't speak Olde English anymore and English is not Gaelic. (To his credit, Kane avoids that.) Nor is it helpful to "wonder" whether - but to never to actually say that - worrying about such things may reflect your inner racist. (He pretty much went for the Full Monty there.)

Sometimes these pronunciations and usages can be valid when we are speaking informally. (I am told that my mother-in-law used to return to her "corn-fed" southern usages when reprimanding her children.)But it is perfectly appropriate to insist upon what has become standard pronunciation and usages when context requires it.

But the reasons that people "talk wrong" - and the ways in which nonstandard language can have its own special delights - are far more fascinating than simple ignorance. I enjoyed Lerer's book and, if this post held any interest for you, I highly recommend it.

Sunday, August 16, 2009

Irishfest - The Scattering

Back to Irishfest in a few minutes. I'll be pouring beer somewhere between 3 and 6 with some other conservative lawyers. Come start a fight. Or better yet, as someone told me last night, "if you have good food, good drink and smart talk, you've got a lot."

Karen and I did manage to catch the local Milwaukee band Whiskey of the Damned yesterday and they are very good with a great way of taking requests. "Write it on a twenty dollar bill and pass it up here. I'll play the hell out of it." Got to get that one to Shark, Jr. who is forming a 90s retro band. (They are going to be good.)

But for those of you who won't make it or did, but want more. I offer a few acts that weren't in Milwaukee this weekend.

The Reddess and I are big fans of the lefty band Black 47.

The Corrs are fantastic and incredibly easy to watch. Here they are with one of Jimi Hendrix' best songs.

And with Bono. You got to give a guy credit for bringing flowers to a walk on.

But there is no leaving without Whiskey in the Jar.

There's a line for our new world. "I first produced my pistol/then produced my rapier/I said stand and deliver/or the devil he may take you." (Or, in another version "for I am a bold deceiver.")

Sounds like Obamanomics. Go nuts.

Saturday, August 15, 2009

Of Profit and Public Options: Public Option Talk, part 4

There are two things that proponents of public health care systems are loath to admit. The first is that they all ration care. As noted above, that doesn't distinguish them from a system in which care is privately provided, but the "rationing" that occurs in the latter is by agreement between the insured and insurer. People decide, either individually or through their employer, how much care - how much coverage - to purchase. It is true that these transactions are distorted in the US through operation of the tax code and that individual choices about how much to spend are distorted by heavy reliance on third party payment. The US does not have an efficient market for health care. But, however distorted (often by regulation and government policy), the nature of coverage (and the degree of "rationing" if that's even the right word to use) emerges from a market. Your employer provides chooses that degree of insurance that will attract employees and that can be justified by the labor market.

The advantage of this system is that it does not need to presume that there is an omniscient body (i.e., the government) that has the abililty to decide how much and what kind of care should be provided. President Obama's statement of an equivalence between "an insurance company" and "government" interfering in your health care is false. If an insurance company (or your employer) does not provide the type of coverage that employees want, there are other employers and other insurers. People vote with their dollars and that is what determines the degree and type of care.

The disadvantage of such a system is that it is affected by ability to pay and those without resources can be left to the sometimes less generous care offered by government programs and charity. (In the US, that problem is exacerbated by the fact of employer provided coverage - a system that is entirely a result of government policy.)

One way of solving that problem would be to subsidize the ability of those without the means to participate in the market. (In the US, the problem would also be helped greatly by migrating away from employer-dependent coverage.)But public health care goes beyond that, seeking to eliminate or further constrict the market. Either through a public payment or heavy regulation, it seeks to have decisions about the amount of coverage and what can be covered made by the government. Proponents tend to believe that this type of centralized ("top down") unsullied by considerations of profit will be "purer" and "fairer" than market decisions on these things.

There are at least two problems with this view. The first is that we know that government decisionmaking is almost never a product of disinterested consideration of the public interest. Just as market outcomes can be affected by the initial allocation of resources and incomplete information, political outcomes are affected by parties with more intense interests than the general public, the effectively opaque nature of much state decisionmaking and the self interest of state actors. (Thus, my frequent references to public choice theory.)

The second problem is that the notion that a single entity can decide what type of coverage is best and what forms of care constitute the "best practice" and are "effective" is highly suspect. Much of our back and forth about private and public decisions revolves around the relative competencies of public and private entities. But proponents of markets don't have to presume that any single market participant is competent. Markets permit - and even anticipate - failure. In addition, competence is forged from competition. Even the best intentioned human beings benefit from incentives. Every year, I see law students who really want to do well, but who only actually do well when they appreciate what it takes to match the competition.

Similarly, proponents of markets don't have to assume the public spiritedness of any market participant. As Adam Smith said, "[i]t is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest." Economic rent and sharp practices are disciplined and eliminated by competition and (I freely admit) by certain forms of regulation which permit efficient operation of the market (e.g., enforcement of contracts).

Of course, it is not true that public systems can be totally imperious and the public can provide a certain amount of corrective feedback (by, for example, voting the bastards out), but this participation is more indirect, delayed and attenuated than that of the market place. It takes longer to happen. A vote is a blunt instrument (markets permit thousands and thousands of choices, while elections only permit us to change a handful of people who are responsible for many things other than health care) and voters must make their infrequent and limited choice on many matters other than health care.

Of course, proponents of ObamaCare claim that he market will survive its implementation. Is that true? Watch this space.

Thursday, August 13, 2009

Why Obama is losing the health care debate

Before continuing my posts on a public option for health coverage, I wanted to stop and comment on the concept of universal coverage. In response to my last post, an anonymous poster says that universal coverage contributes to higher life expectancies in other countries. My response to that is that (please take note)it might, although we should keep a few things in mind. First, most developed countries other than the US claim to have universal coverage. But that doesn't mean that everyone gets the same health care (they don't) and it doesn't mean that, in the US, there are people who get no health care (there aren't). In addition, for most of these countries, life expectancy clusters between 77 and 80. The difference between them could be attributed to health care, but it could be wholly unrelated.

We do know that when we look at things that the health care unambiguously delivers, i.e., timely care, good survival rates and medical innovations, the US system is unrivaled - and much of the innovation that leads to these things is then adopted by other countries which do not themselves produce them.

My conclusion - and I think it is a reasonable one - is that our current system does many things well for the overwhelming majority of people. So, to borrow from what has become an accepted part of the Hippocratic oath (although some say it was not there originally) - "first, do no harm." The reason that the President is losing the health care debate (indeed, may have already irrevocably lost it) is that his ambition largely dismisses that advice.

If there were nothing to lose, then the proposed centralization of "best practices, "pay for a (uniform concept of)performance," federally standardized coverages, and a public option that may undercut private alternatives and dampen incentives for innovation even as it results in greater equality wouldn't bother people.

But there is something to lose. The awful and immoral health care system that is portrayed by our friends on the left is not the health care system as experienced by somewhere between 75 and 90% of Americans. If you don't begin your thinking by acknowledging that, you aren't going to get anywhere.

And Obama hasn't. The problem is not that "special interests" (a much abused term) are unfairly frightening people. It's that people have reason to be frightened. Like Mrs. Clinton before him, Obama is making the perfect the enemy of the good.

This isn't to say that universal coverage isn't a laudable goal (we should seek it) or that there is no room for improvement. But folks are understandably reluctant to throw the baby out with the bath water. The President has consistently failed to take that concern seriously. He knows it is a problem. This is why he began by claiming that no one would be forced out of their current coverage before he had to acknowledge that he only meant that the government wouldn't mandate such an outcome, although it might very well occur. His speculation about "red pills" and "blue pills" and pain killers instead of treatment for those who are too old or too sick plays into what everyone knows are the weaknesses of public health plans.

Fairly or not, folks on the left blame the "Harry and Louise" ads for killing HillaryCare. However you view those ads, it may not have taken even that to kill ObamaCare. Somehow this guy doesn't seem so formidable. It turns out that he's not "like God" after all.

Wednesday, August 12, 2009

Irishfest - The Gathering

Tomorrow begins Irishfest. I am about half Irish and the Reddess is about just barely out of Galway. Irish culture fascinates me because it is at once God-haunted and remarkably earthy. We love our words. In those ways, it represents a quintessential strain in Catholicism.

But we want to focos on the music. One of the best artists of eration is Delores O'Riordan and her band, the Cranberries. She has managed to write one of the best (if not the best) anti-war anthems (and, yes, they are important just as we must honor warriors) in Zombie.

But she also wrote a wonderful song about families. Not foolishly sentimental and not mindlessly transgressive. Listen to this - really listen - and see if you don't cry. We Boomers love our popular music. This is as good as anything our idols ever produced.

Public option talk, part 3.

To get back to the subject of my last post, anyone who tells you that public health care plans do not ration care or that ObamaCare will not is misinformed.

If someone tells you that health care is currently rationed, he would be right. Under the current system health care is rationed by market exchange. You - whether individually or through your employer through premiums and forgone wages - buy only so much coverage. Your choice is, of course, constrained by a variety of circumstances. You don't have unlimited amounts of money. You have other needs that must be provided for. Regulations require that your coverage be the same as others in your plan (at least within a limited group of largely equivalent choices) - at least if it is to be tax exempt - so you may not be able get precisely what you want.

For those without coverage, care is rationed by the willingness of the state and providers to offer care. The latter choice is, of course, affected by anti-patient dumping laws.

The end result is that whatever rationing exists is the result of a decentralized process that, within a fairly intrusive regulatory framework, responds to choice and ability to pay. Its advantages are that it does not require anyone to be omniscient. It does not set up a single "honest broker" to decide what care is and is not worthwhile. It allows those decisions to be made from the bottom up, rather than the top down. Although it is far from an unfettered market, it provides incentives to innovation and the results, in the development of breakthrough procedures, technology and pharmaceuticals have been spectacular. American medicine is the engine that drives the improvement of care around the world and that fact is not unrelated to the existence of our limited free market for health care.

But we should not be surprised that this comes at a price. We live in a fallen - and therefore - paradoxical world. Sweet and sour tends to be the way of things. Our system is not as egalitarian as we want it to be. Poor people don't get the same quality care. The market agreements that ration care are affected by the distribution of wealth. The provision of care through employment is an historical accident and a source of economic inefficiency.

And - this is the thing that neither side of the debate wants to talk about - it doesn't ration much care. The reason that we pay so much for health care is the very "problem" identified by President Obama and cited in the last post. We spend enormous amounts of money on care for persons in their twilight years and for the chronically ill. You are, to be sure, more likely to receive this care if you are insured or a person of means, but remember the overwhelming majority of Americans are insured and Medicare and Medicaid do the exact same thing, albeit not quite as generously.

It turns out that - given the choice - we want that hip replacement even though we have cancer. We want a pacemaker even if we are 83. We buy coverage - again often through our employers - that provide for it and we pressure government programs to provide the same thing (although they tend to shift the cost to private payers).

This is one of the reasons that statistics tend to show that American health care (measured by the success of medical interventions such as cancer treatment or bypass surgery) is better than what is on offer anywhere else in the world, yet Americans don't have longer (and may have shorter) life expectancies. We are a rich country and we pay an awful lot for a little more - or a little better - life. But, as a statistical matter, this may be overcome by impacts that are not much related to medical care and that may be side effects of our wealth or our relatively individualistic and libertine culture.

The "public option" takes dead aim at this. And that's the subject of the next post.

Public option talk. part 2

Supporters of the Obama health plan are livid that Sarah Palin posted a statement suggesting that the plan would result in a "death panel" which might decide whether a baby with Down's Syndrome would receive health care. She is, in consequence, "evil" and a "monster."

This is going to be a three part post and we'll get to whether Palin's concern is as far fetched as her critics think it is. But, as Wesley Smith puts it, she'd be a more effective critic "if she didn’t write like a college-student blogger." So, I'll concede that it is hyperbolic and demagogic statement. No one has yet proposed a "death panel" to decide who will get care. As It sort of reminds me of Barack Obama saying that John McCain was willing to fight the war in Iraq for another 100 years of war. Maybe McCain was too commited to Iraq for Obama's taste, but that statement was false. It was hyerbolic and demagogic. Bad Sarah. Bad Barack. But then you can hardly blame a lion for eating a gazelle. This is what politicians do.

Still, isn't the issue of rationing care for the elderly or infirm on the table? And didn't the President put it there?

Obama has raised the issue of health care for persons in the later years of their lives. He wonders whether someone in the position of his grandmother (then 86 and diagnosed with cancer) should get a hip replacement (although he said that he would have paid for hers). He noted that the chronically ill and those at the end of their lives potentially constitute 80% of the cost of health care. He told a woman that perhaps her very elderly mother (99 at the time she needed it; 105 at the time of the question)should take pain killers rather then receive a pacemaker. (This turns out to be lousy medical advice; but you get the picture).

Despite saying yesterday that he believed that no one but "you and your doctor" should make health care decisions. He doesn't mean that. On another occasion, he suggested that the government do exactly that, suggesting that "[i]f there's a blue pill and a red pill, and the blue pill is half the price of the red pill and works just as well, why not pay half price for the thing that's going to make you well?"

The reason, presumably, would be that your doctor doesn't agree that the blue pill works just as well as the red one. The "honest broker" needs to set her straight on that. In a related context, he has said that "[t]here's always going to be an asymmetry of information between patient and provider ... [a]nd part of what I think government can do effectively is to be an honest broker in assessing and evaluating treatment options." The way in which the government "acts as an honest broker" is not by endorsing one treatment over another (a pointless exercise), but by deciding which one it will pay for. No red pills for you. For people without the price of a hip replacement burning a hole through their pocket, this means making a medical decision other than that preferred by the patient and her doctor.

The current form of ObamaCare contains a provision requiring doctors to be reimbursed for end of life counseling. It does not, as some have wrongly said, make such counseling mandatory. But advocates for the disabled are concerned that it may have the effect of pushing patients into declining care. Obama, seeking to deflect criticism, said that the provision came from Republican Senator Johnny Isaakson. Isaakson says that's wrong. He says that he wants people to get assistance with living wills but he wants the initiative to be that of the patient and not the doctor. Whoever wins this little shoving match, the point is that the provision can reasonably read as an effort to encourage palliative care and DNR orders. That may be a good thing, but it brings us back to the issue of limiting care for the elderly or infirm.

It is the President who has engaged Rahm Emmanuel's brother, bioethicist and physician Exekiel, to advise him on health care reform. Dr. Emmanuel has advocated a more communitarian form of health care decisionmaking, suggesting that “Doctors take the Hippocratic Oath too seriously, as an imperative to do everything for the patient regardless of the cost or effects on others” he has said that we ought to discriminate against old people in the provision of health care. He advocates the notion of "life-years" as a guide to health care decisionmaking. This is more or less what they do in socialized systems like the UK. He has at least suggested the notion of discrimination based on the age of the patient and seems to advocate (at least in theory) the notion of "life-years" as a guide to health care decisionmaking. He has suggested that care ought not be guaranteed for "services provided to individuals who are irreversibly prevented from being or becoming participating citizens are not basic and should not be guaranteed." Might that be people like Trig Palin? More later.

This doesn't mean that Dr. Emmanuel is a gentler version of Dr. Kevorkian. Salon breathlessly reports that he is not even for voluntary euthanasia or physician assisted suicide.. That hardly makes him a convervative, but he does seem to be a bright and serious man who deserves to be heard. So I'm not about to call him "Dr. Death." But here is another item suggesting government ("communtarian")involvement in making those decisions that the President says it should stay out of. It raises, again, the question of rationing care for the elderly or infirm.

In fact the push for a public option in and of itself raises the notion of rationing. All public health care systems ration.

Now, private systems do too. What are the differences? That's the next post.

Getting back in tune

From my mouth to Dorothy Rabinowitz' ears? Not likely, but she also notices that there is something tone deaf about the Obama administration's reaction to criticism of its health plan. Barack Obama was supposed to be not simply bipartisan, but postpartisan, He was supposed to move us past the failed labels of the past. He was to bring us into a new age of civil discourse, national unity and post-ideological solutions.

I always thought that was silly and it didn't take long for the President to prove it. He is a highy ideological politician on the left - further to the left than anyone who has occupied the White House in a long time. That's not an evil thing. It may not, depending on your point of view, even be a bad thing. zRonald Reagan weas a highly ideological politician to the right of anyone who had occupied the White House at the time - and since. I think he did a wonderful job.

But, to paraphrase Dennis Green, Barack Obama is who conservatives thought he was.
In some ways, the bloom coming off the rose is a good thing. Obama is simply another warrior in the ideological battlefields. We can dispense with all the prattle about moving beyond politics and transformational figure. Evan Thomas can start to seek God where he is more likely to find Her. Chris Matthews can stop tingling down his leg. We can just argue about what is or isn't a good idea.

We can start with some clarity about these Town Hall meetings. There are really three criticisms that have been made of citizen participation in these meetings. The first is that it is organized. It is not, in a particularly silly turn of phrase, "grassroots" but "Astroturf." This is metastatic nonsense. All successful grassroots movements are organized. All are organized by people with a "special," i.e., particularly intense, interst in the issue at hand. Did conservative organizations move citizens to the meetings? I hope so.

The second is these people say things that the administration thinks are wrong. This is also known as debate. Mass public participation will, of course, result in more or less frequent misstatements of fact and poor argument. One of the great grassroots movements of the left - opposition to the war in Vietnam - featured repeated claims of things that were not true, e.g., "Ho is a democrat," "the VC and PAVN won the Tet Offensive," "a victory for the North would not have impact beyond Vietnam and would not result in a bloodbath, etc." Just as people misrepresented Bush era legislation like the Patriot Act and Military Commissions Act, they will occasionally say things about Obama's health care proposal that are unfair or inaccurate. They will occasionally say, for example, that the bill requires certain things that are better described as a likely outcome of other things that it does require.

But just as none of this meant that the Vietnam War, Patriot Act of Military Commissions Act were good things, there are many criticisms of Obama Care that are spot on. That's why the thing is slipping away from him. In any event, if you don't like what the other side is saying, respond. Don't shake your head and express distress on what we have come to. Try not to respond by setting up a website for people to report on "fishy" things they have heard from their neighbors. We don't think that you are going to round up dissenters, but it sounds imperious and vaguely threatening.

The third criticism is that we should be civil and respectful. Yes we should. I have no doubt that some of these meetings have degenerated into shout fests, although I am not persuaded that they are as bad as the pro-Obama media has made them out to be or that they are like a mob from the village ready to lynch Dr. Frankenstein for creating this abomination. People get excited and, as my wife reminds me, everyone's blood isn't as cold as mine during debate.

But a certain level of civility is good. Some of us have arrived rather late to that conclusion, but tardy enlightenment is welcome.

So let's agree. You shouldn't shout down speakers at meetings, no matter how strongly you feel. You should try to keep ideological differences in perspective. You should refrain from calling arguments that they don't like and people that they disagree with "lies" and "liars." You should strive to understand what others are saying and fairly respond to the substance of their argument.

You won't always succeed, but you'll get better. You know who you are.

Sunday, August 09, 2009

Obama and the Democrats are upset about community organizing.

Who would have thought it?

This has always been a problem for Obama and is actually reflects a longstanding tension in the American progessivism. Recall Woodrow Wilson's claim that the Constitution, with its separation of powers and checks and balances on government action was outdated and that progressives must insist that it be interpreted "according to Darwinian principle" so that the organs of government be permitted "quick cooperation ... [and]ready response to the commands of instinct or intelligence ...." Those instincts and that intelligence were to be of the expert class. In response to the New Deal, Walter Lippman, who contributed to the very attitude that he later came to question, wrote that: who call themselves communists, socialists, fascists, nationalists, progressives and even liberals, are unanimous in holding that government with its instruments of coercion must by commanding the people how they should live, direct the course of civilization and fix the shape of things to come ... [T]he premises of authoritarian collectivism have become the working beliefs, the self-evident assumptions, the unquestioned axioms, not only of the revolutionary regimes. but of nearly every effort which lays claim to being enlightened, humane and progressive."

The Democrats' reaction to the quite understandable criticism of the Obama healthcare has had a petulant and wounded ring. How can you be so ungrateful? Pelosi calls protesters "Unamerican" and critics "almost immoral." Obama wants critics to "stop talking." The White House wants "fishy" comments on ObamaCare reported to a White House website. No, I don't think that the administration is planning an auto-de-fe against health care critics("it's what you oughtn't to do, but you do anyway"), but there is something offputting about all of this.

Shut up and let us help you! Not a theme calculated to endear or persuade.

The current way of delivering health care is said to be ruining the nation. The problem with that as a claim is that it provides an overwhelming majority of people with what they want. Yes, we would like it to be cheaper and there is a fair amount of health care anxiety. We certainly have an accessibility problem, but one that is not as grave as it is claimed to be. Insurance companies can behave badly, but the vilification of insurance companies is an old trial lawyers trick. No one likes to be told "no" and insurance companies necessarily "adjust" claims. In any event, insurance, in the traditional sense, is increasingly a smaller part of the current system. And a government payer will "adjust" claims too. It will have to. You pay for specified coverage not for anything and everything you want.

But the larger problem here is that Obama has run into Americans stubborn refusal to believe that the chattering classes know what's best for them or that government provision of goods and service don't provide problems of their own. He has exacerbated those perceptions with an incredibly expensive and failed stimulus plan that was a text book proof of what public choice theory tells us about the hijacking of government programs. He took over a couple of car companies and gave huge chunks of them to the unions that were large causes of their economic woes. He proposed - and pushed through - an economically strangling cap and trade bill that no one could have even read before passage.

He could have an insurance exchange tomorrow but he stubbornly insists on a public option that has been demonstrated to be quite problematic. Drop the public option and he has a bill. Keep it and I'm not sure he does. His Nibs has big plans for you and he is not happy with your skepticism.

Public Option talk, part 1

In the comment thread following Friday's post on health care, I asked why there should be a public option in any insurance exchange? In response, former local blogger Seth Zlotocha pointed to policy rescission - the possibility that an insurance company may rescind coverage after you get sick based on a misrepresentation regarding your health history at the time you applied for coverage.
National commentators have also advanced this as a reason for a public option.

There may be a justification for a public option, but this is not one of them. First, rescission can affect relatively few people. Most of us obtain coverage from our employers in ERISA qualified plans. Rescission is basically nonexistent in such plans. The reason is that the law makes it essentially impossible to deny coverage for preexisting conditions. If you have what is known as "creditable coverage" (basically meaning that you were part of a group plan in the year before you joined your new employer), preexisting conditions are are likely to be covered from day one. For example, when I moved from Rite Hite to Marquette, any claims for treatment of preexisting conditions (and I had a rather expensive one about a day after joining the faculty)were covered - and, by law, had to be because I was covered by Rite Hite.

Even for those who lacked creditable coverage, preexisting conditions must be covered after a waiting period (usually twelve months) and, even then, can only be denied with respect to conditions for which the enrollee sought treatment in the preceding six months.

In other words, most folks are not subject to even the possibility of rescission.

This is not to say that the law governing rescission is perfect or that in all cases every insurer follows the law. There is no law that isn't broken. But rescission - which is extremely rare even within the universe of individual policies to which it applies - is not much of an argument for a public option. If you think it is too easy to rescind a policy, the more direct solution would be to limit rescission to cases of intentional misrepresentation or tighten materiality standards (i.e., the relationship between the misrepresenation and the condition that the insured now seeks to have covered.)

Wednesday, August 05, 2009

What if you picked a fight and nobody came?

Jay Bullock wonders why he's not getting any response to a post which, in his view, called "half of the conservative cheddarsphere liars." (Actually, his post attracted a good number of comments for a local blog.) At issue is a list of claims about HR 3200, the Orwellian named "America’s Affordable Health Choices Act of 2009."

Claims on the list have been advanced by local conservative bloggers, but it actually comes from Liberty Counsel and a blogger named Peter Fleckenstein.

First, I'll give Jay some credit. From what I can see, the list is not a very strong piece of work. Some of the claims are wrong and others relate to valid criticisms of the Act's likely impact, but are not required by the Act itself. Still others are phrased in a very polemical way.

I haven't - and wouldn't - link to the list, so I guess I haven't been called a liar. Nor do I want to debate how good or bad the list is. It is not the issue. The proposed legislation is.

But Jay hasn't scored the points that he thinks he has.

For example, one of the "lies" (or so says Jay)are claims that health care will be rationed and the the government will decide what treatments and benefits are covered. Jay's response, essentially, is that the federal government will set only minimum standards and he is right to say that the language cited does not literally call for rationing and limitations.

But its not at all clear that the legislation would only set floors and not ceilings. In fact, that seems highly unlikely. Sec. 142 of the Act empowers the Health Choices Commissioner to set standards. Sec. 123 empowers a committee to make recommendations regarding qualifying plans to the Secretary of HHS. Nothing says that these recommendations and standards are limited to setting minimum qualifications.

In fact, one of the selling points of the plan is to reduce costs by adopting "best practices" which will necessarily mean deciding that some things ought not to be paid for. (As the President put it, preferring the cheaper blue pill to the more expensive red pill.)Anyone who actually has to take pills to alleviate a chronic condition knows that it's hardly that simple.

While it may be that these limitations will only formally apply to the public option, it's not that simple. First, to the extent that people get thrown into the public option, those restrictions on reimbursement become restrictions on their care. Of course, any contract for insurance is going to have restrictions on care. No insurer or employer can promise to pay for anything and everything, the fear here is that, if a public option drives out private alternatives (more on that later), then there will no longer be competitive discipline on the substantive provisions of insurance. Today, if you don't like what your employer has chosen, you can complain and employers - who use health care plans to compete for employees - can and do choose something else. To the extent that a public option becomes the - or one of the - only games in town, that won't be as likely.

Beyond that, to set minimums - particularly if they are extensive - is to set maximums. If you mandate extensive coverage for drug and alcohol coverage, you are either going to drive up the cost of the policy or cause something that isn't mandated to be dropped in order to meet an acceptable price point.

Jay refers to a "lying" editorial in Investors Business Daily that, in his view, falsely claims that the bill outlaws individual private insurance plans that do not meet government minimums. It does not, he says, because existing policies are grandfathered and they are - as long as the insurers don't sign up any more policy holders. In other words, if you have a policy and the company is willing to close its book of business, you'll have no problem. Otherwise, its to the exchange for you.

And the exchange is going to mandate a particular type of policy. Broad coverage and low deductible. The opportunity to save by buying bare bones coverage will be limited and the cost controls that will exist are likely to come by restricting care in ways that are not politically (as opposed to medically) harmful.

Jay repeatedly says that the plan leaves private employer provided insurance alone and that the public option is not subsidized. But that's true only in the most technical sense. No one really believes that the existence of a public option paying medicare rates will not impact private plans. Whether or not the public option turns out to be subsidized will depend on that impact. Will private plans subsidize the public option as they currently subsidize medicare? How will the credits provided to people who cannot afford insurance interact with the setting of "standards." i.e., will they be constructed in favor of the public option?

He is, of course, correct in that the bill does not call for "mandatory" end of life planning. It only provides that such planning will be paid for - presumably in ways that it is not today. (Having dealt with the death of two elderly parents - my Mom and Karen's Dad - there certainly was a lot of discussion of those matters.)

Of course you get what you pay for and that may not be all bad. But it is not surprising that there would be a certain sensitivity about the issue given the President's remarks about limiting care for those with limited life expectancy and the experience with that type of thing in other "universal care" schemes.

Jay can't understand why employers would drop coverage to pay the 8 % tax when nothing prevents them from dropping coverage now. He calls the suggestion that this is "the dumbest thing he has ever heard" which is a big claim from a high school English teacher.

But its not dumb at all. Currently employers who don't offer health insurance are at disadvantage in competing for employees. Because folks need to get their insurance from their employer, many will not consider positions that they might otherwise take if there is no insurance available. If there is an alternative, this becomes less of a disadvantage and some my choose to drop coverage. That possibility will be exacerbated if the public option undercompensates providers and drives up the cost of public plans.

Jay says he bets private companies come up with plans that undercut the 8 % tax for employers who don't provide coverage. That might happen if the mandates for coverage (the "essential minimums") don't make that impossible. I suspect that they will.

In a comment following his post, Jay touts medicare. Why do providers accept medicaid patients if the rates are so bad? Of course, some don't. But, for those that do, it is possible to engage in price discrimination since medicare and medicaid aren't open to everyone. We wind up subsidizing medicare and medicaid with our health care dollars as well as our tax dollars. With a public option available to everyone, that becomes more difficult and I have written elsewhere on why that may be a big problem.

He repeats the notion that medicare is a "model of efficiency" due to lower administrative costs. He counts it a virtue that Medicare, having overcharged for years to create a surplus that the government has squandered, has not charged even more. The administrative cost advantages of medicare may be exaggerated but its not surprising that they are there. It doesn't take much work to say "take it or leave it." Medicare is going bankrupt but Jay thinks it a selling point that this won't be for a few years.

I'm not sure that Jay should want a fight.

Monday, August 03, 2009

The Uses of Crying Hate

For a variety of reasons, I don't want to write about the issues in Appling v. Doyle and am only doing media to discuss the issues presented by the case. I just don't think that going back and forth on the blogs would serve the clients' interest.

But I read a couple of things last week that do prompt me to write on a related issue. David Boies is a high powered New York lawyer who, along with Ted Olson, has brought a challenge to California's Proposition 8 banning same-sex marriage in that state. In a column in the Wall Street Journal, he offered a defense of his clients position. It was, from a legal standpoint, rather weak and largely given over to assertions that opposition to same sex marriage could be based in nothing other than hate and fear. A rather devastating response to Boies by high powered Washington lawyer, Charles Cooper, appeared in the Journal's letters section a few days later.

Locally, a woman named Maria Cardenas wrote an op-ed suggesting that opposition to same sex marriage - or at least to the domestic partner registry - can only be based in hate and fear.

I realize that, to some extent, this is a rhetorical and strategic ploy. It behooves Boies and Cardenas to have their opponents seen as hateful and the issue to be framed as one about sexual liberty and discrimination. Over the past 40 years, our public morality has been of one mind about those. Sex is good. Discrimination is bad.

But it seems to me to be the ultimate form of hate to deny the human subjectivity of those you disagree with. And that is precisely what Boies and Cardenas are doing. They refuse to respond to - or even acknowledge - the arguments that their opponents make. They presume bad faith. They strive to define those who disagree with them as "the other" - someone outside the circle of civil society.

I assume that Cardenas truly believes that. She wants what she wants and is understandably miffed by those who say she can't have it. (Boies is a skilled litigator who knows which arguments sell so I'm not sure.) But the belief that opposition to same sex marriage is rooted in some form of hate is fear is simply false. And its wrong, I think, to engage in that type of attempted ostracization and objectification of one's opposition.

There are straight people who have a visceral reaction to homosexuality. The idea of it is repulsive. Most of them, however, put that aside. Some do express it in hateful ways. A few even express that hate in religious terms, not appreciating that Christian Hate is an oxymoron. But these aren't the church people behind the marriage protection movement.

Of those within that movement, there are, of course, many who believe that homosexual conduct is sinful. I am not one of them, but I think it's wrong to suggest that they are, for that reason, "hateful." They have a great deal of tradition and history behind their position. This has been - and still overwhelmingly is - the position of the Abrahamic faiths. While this may be a religious justification for feelings of revulsion or for preservation of a purity code (the Roman Catholic theology of the body is far more sophisticated and much different than that), there is a distinction between hating someone and thinking they are doing something wrong and that will, in fact, harm them. This is so even if you think that belief is mistaken. Gays and lesbians understandably object to the charge that they are engaged in wrongful conduct, but it is not accurate to say that those who believe otherwise either "hate" or "fear" them.

Finally, there are those - and this would be me - who make no judgment on the morality of same sex relationships. They believe that same sex marriage or the creation of a marriage-like state for couples other than one man and one woman would, over time, change our traditional understandings and expectations of marriage in a way that would weaken it as the preferred vehicle for heterosexual relationships.

Once again, there seems to be a concerted effort to mistate and deliberately misunderstand this argument. It is not predicated on an assumption that homosexual relationships are "worse" than heterosexual ones (although it does reflect a belief that children, not always but in the great run of cases, are best off when raised by their biological parents who cannot, of course, be a same sex couple)or that gay and lesbians do not love one another. It is not an argument that Mary will divorce Joe on Tuesday because Bill and Tom moved in next door on Monday.

Nor is it anything like discrimination against blacks. Racial discrimination was predicated on an assumption that blacks were inferior human beings whose participation in all of civil society should be surpressed and segregated. The idea that blacks and whites should not marry was not the central feature of that belief, but an incident of it.

Opposition to same sex marriage says nothing about participation of gays and lesbians in civil society. It does not imply - or even provide support for - discrimination in housing, employment and public accomodations. It does not suggest that homosexuality should be criminalized or that gays and lesbians should be ostracized.

It does not even say, contrary to the repeated assertions of supporters of same sex marriage and the domestic partner registry, that same sex couple can't visit each other in the hospital or make medical decisions for one another. It only says that those rights ought not to be created by conferring a marital-like status and, of course, it is not necessary to do so to ensure that they are respected (if, in fact, they are not.)

I don't expect that anyone will read this and, while retaining their support for same sex marriage or the registry, dial down the rhetoric. But these are the facts.

Saturday, August 01, 2009

Wow, he said.

In response to yesterday's post about health care, one anonymous commenter (but I think I know who it is) begins with the words "wow Rick wow." What could cause that type of incredulity?

The commenter argues that a monopsonistic buyer will lower prices for everyone. Not necessarily. Medicare and Medicaid pay below market rates but there seems to be general agreement that they have raised - not lowered - prices for everyone else. They are a "public option" that we all subsidize.

Of course, one of the reasons that may happen is that the rest of us can't migrate to Medicare or Medicaid. In the case of a public option that is available to all, it is possible that providers will be unable to maintain higher prices for private plans because, if they do, patients (or, more accurately, their employers) will simply move into the public plan. If that happens, the public option may reduce but not eliminate private coverage.

But lowering prices below what they are in today's current market - in which insurers or administrators compete - can only be the product of government's monopsonistic power. And that price decrease is, at best, a mixed blessing.

Let's illustrate the point with the commenter's claim that the current system is immoral because some people can't afford the $40 pills that they need.

I agree that this is a problem. How does a public option fix it? It can't reduce the cost of making the pill. It can't reduce the amount of money that it cost to develop it. As we have seen, the price for the pill has been set in a competitive market. The company's bargaining power may have been enhanced by a patent, but we generally regard that a price worth paying for innovation. So the public option can't wring out "excess" profit, defined as that which could not be earned in a competitive market.

What the public option does is simply refuse to pay the market price. Then, one of two things happen. As do service providers with Medicare and Medicaid, the drug company may sell at the lower price to the public plan and increase its price to private plans. But, as our commenter suggests, that might not work if people migrate to the public plan in response to that and other costs shifted from the public option to private plans. The drug company, if it can, might refuse to do business with the public plan. But if it is legally required to do so or, if the public option by undercutting private plans, has become the only game in town, then it may be forced to take the lower price or withdraw the product.

In many cases, it may do the former because the cost of a drug is generally in its development and not in its production. Development costs are sunk. The company may not recoup its costs or make a "sufficient" profit at $10/pill, but it will cut its losses by selling it for that.

All good? Maybe not.

We have now changed the economic environment in which new medical technology is developed. We have reduced incentives for development, so we will get less development. This creates hidden victims. We can congratulate ourselves that the $40 pill now costs $10. But we don't know who has suffered and died because the next pill was never invented. The only thing that we can be sure of is that it has happened.

This is why the "cheaper drugs in Canada" story is a canard. The problem isn't that the drug companies don't recoup their minimal marginal costs of production due to Candadian price controls. It's that they wouldn't have the same incentives for development if the whole world was Canada. In that sense, Canada's drug consumers are free riders. They enjoy what they don't pay for.

A "public option" is not the answer to unaffordable drug prices because it can't change the difficulty in developing new drugs. If we want people to have drugs that they can't pay for (and, at least for some drugs, we do), then we should help them pay for them.