Healthcare

The Crappy Coverage Solution

If Congressional Republicans succeed in enacting either the Senate or the House bill to repeal the Affordable Care Act, they will have carried out one of the most brazen bait and switch moves in the history of U.S. public policy.

They and Donald Trump campaigned on the idea that Obamacare exchange premiums were rising uncontrollably, yet neither of the bills does anything to address that problem. They did not vow to repeal and replace Medicaid — Trump, in fact, promised not to touch it or Medicare or Social Security — yet that is what the bills would in effect do, both for the ACA’s Medicaid expansion and traditional Medicaid.

It’s been widely noted that the Republicans seem preoccupied with repealing the taxes the ACA imposed on high earners to help pay for the cost of expanding coverage. Yet less attention is being paid to the other giveaway in the bills: the repeal of the ACA’s employer mandate. This provision should be called the Wal-Mart Windfall Act, because it would allow large low-road employers to avoid ACA rules that oblige firms with 50 or more full-time employees to provide health coverage or else pay a penalty.

The mandate is far from draconian, yet it was at least a partial remedy for the situation in which millions of workers at big-box retailers, fast-food outlets and similar workplaces were not provided affordable coverage and were encouraged to enroll in programs such as Medicaid. Now the Republicans seek to remove any obligation on the part of employers to provide coverage while also undermining the social safety net alternative.

To the extent that the Republicans have a solution to the healthcare problem it is this: bring back junk insurance. It is often forgotten that the ACA was designed not just to address the problem of the uninsured but also the underinsured.

Starting in the 1990s, large insurers such as Aetna began selling bare-bones individual policies to low-income individuals who did not get employer coverage and could not qualify for Medicaid. These policies had relatively low premiums but sky-high deductibles and numerous exclusions. In cases of a serious accident or illness, they were all but worthless. The ACA put an end to this predatory market by establishing a set of essential benefits that all plans would have to include.

Republicans don’t like to admit that they are promoting a return to crappy coverage, so they dress up their arguments with misleading phrases such as “patient-centered reforms.” Many of them also realized that the idea of lowering standards directly was not very popular, so they have returned to their favorite panacea of giving states more flexibility. This allows them to pretend they are not scrapping essential benefits while knowing that many governors and state legislatures would be all too willing to do so if given the opportunity.

The cynicism of Congressional Republicans is matched by that of the big insurance companies, for whom the ACA was tailored and are now doing nothing to defend the law. Instead, they still seem to be sulking about the two anti-competitive mergers (Aetna-Humana and Anthem-Cigna) that were opposed by Obama Administration and shot down in the courts. Having seen their oligopolistic dreams go up in smoke, they now seem to want to give up the ACA market in favor of selling bare-bones policies.

It is unclear whether the dystopian vision of the ACA opponents will come to pass, but in the meantime the wellbeing of millions of Americans is being unnecessarily endangered.

The Junk Insurance Lobby

The ACA repeal-and-replace effort, given up for dead two weeks ago, may or may not be getting resurrected. Whether that happens seems to depend on satisfying the desire of Tea Party Republicans to grant Americans the right to purchase the crappiest health coverage possible.

Whereas Paul Ryan and President Trump initially wanted to retain the ACA’s popular provisions on essential benefits and pre-existing conditions, they now seem open to trading them away to win over the Freedom Caucus.

The position of the hardliners is often dismissed as some kind of bizarre misanthropy, but it is actually the logical conclusion of the mainstream Republican notion that deregulation is the solution to all problems. That notion has been embraced by Trump, who repeatedly bashes agencies such as the EPA and claims that weakening business oversight is the key to job growth.

The members of the Freedom Caucus seem to believe that removing all restrictions on insurance companies will result in lower premium costs. That may be true but only because the insurance that people would be purchasing would cover as little as possible.

While the Freedom Caucus presents this as a bold new approach, it is really nothing more than a return to the situation before the enactment of the ACA. Republicans of all stripes would have us forget how awful and oppressive health insurance used to be.

Thirty years ago, the House Select Committee on Aging was warning that, in addition to the millions of Americans who were uninsured, millions more were underinsured. As traditional insurance was increasingly replaced by health maintenance organizations — whose business model was to deny as much coverage as possible — subscribers had to fight constantly to get prior approval for many procedures and to get reimbursed for medical fees already paid.

Even worse than the HMOs were the individual plans labeled as “limited benefit” or “mini-medical.” Targeted to lower-income people who were self-employed or had jobs that provided no coverage, these policies could cost as little as $40 a month but they had strict limits on both routine expenses and hospitalization costs. These plans existed for a long time on the fringes of the health insurance world, but eventually large companies such as Aetna, Cigna and UnitedHealth Group entered the market with their own bare-bones offerings.

Those subscribing to such plans were gambling they would remain healthy. If instead someone had a serious accident or illness, the plans were useless and often pushed people into personal bankruptcy.

Junk policies are the healthcare analogue to payday loans and other forms of predatory lending. They appear to serve a need and initially appear to be inexpensive, but they can have disastrous consequences.

The ACA was designed to protect people from those consequences, but the Obama Administration did not do enough to explain the change. In a climate of rightwing demagoguery, many people who had to give up their low-cost junk insurance were led to think they were losing something valuable. Moreover, Medicaid expansion, which provided free, decent coverage for low-wage workers who might otherwise have had to depend on junk policies, was blocked in many states for ideological reasons.

Now the Freedom Caucus would have us believe that bare-bones coverage is the way forward for the individual marketplace. That might be the case if we want a society in which those few people with no significant health needs get a bargain while everyone else has to risk financial ruin.

Catastrophic Plans

During his private-sector career Donald Trump floated many dubious business ventures, and now as president he is pushing his biggest bait-and-switch scheme yet. Having run for office on promises that he would improve healthcare and protect safety net programs such as Medicaid, he is now embracing and promoting a Republican replacement for the Affordable Care Act that would do exactly the opposite.

Throughout the campaign, Trump made it abundantly clear that he wanted to repeal the ACA, which he repeatedly described as a disaster, and with his typical hyperbole promised voters: “You’re going to have such great healthcare at a tiny fraction of the cost, and it is going to be so easy.” During the transition he said that the replacement plan would seek to provide “insurance for everybody.”

Trump exploited the real frustrations of many people with the ACA — frustrations that were largely the result of Republican intransigence that prevented the inclusion of a public option, blocked any legislative fixes and precluded Medicaid expansion in many states. He implicitly promised that a replacement plan would do more.

When Trump stated on February 27 that “nobody knew health care could be so complicated,” he was in effect signaling that the bait phase of his con was over and he was moving on to the switch. Now he has dropped the extravagant promises and has joined the House Republican rush to enact a repeal and replace plan supposedly made urgent by the imminent collapse of Obamacare.

The House legislation has not yet been officially scored by the Congressional Budget Office, but it is widely anticipated that it will result in a loss of coverage for millions of people and sharp increases in premiums for many of those who hold onto their plans.

Yet there is another issue that is receiving less attention: the quality of coverage for those who remain in the individual marketplace. For now, the Republican plan retains the ACA’s list of essential benefits (preventive care, etc.) that must be included in any individual or small group plan, but it is possible that could be bargained away to placate social conservatives who don’t like the provisions relating to reproductive health.

Trumpcare does not, however, include the ACA’s cost-sharing provisions that cap out-of-pocket expenses in plans obtained through the exchanges by persons with income below 250 percent of the federal poverty line. As a result, these people could very well be subjected to sharply higher deductibles and co-pays.

This points to the little-acknowledged aspect of the assault on the ACA: at the heart of the Republican “solution” to rising premiums is giving people the ability to purchase lower-cost but substandard coverage. In other words, they want to return to the pre-ACA situation in which insurers could sell bare-bones policies that provided little or no cost reimbursement except in cases of major illnesses or accidents — and might be skimpy in those situations as well.

It is significant that Republicans keep quoting Aetna CEO Mark Bertolini in perpetuating the bogus claim that the ACA is in a “death spiral.” Bertolini is hardly an objective observer. He used misleading negative comments about the ACA to try to deter the Obama Administration from its opposition to Aetna’s anti-competitive acquisition of its rival Humana, which was recently blocked by a federal judge who accused the company of dropping out of the ACA marketplace in several states to “improve its litigation position” in the merger dispute.

Aetna is also the company that was one of the biggest promoters of bare-bones policies in the pre-ACA period. It got into the business, also known as junk health insurance, two decades ago through the purchase of U.S. Healthcare, an HMO whose bare-knuckles practices Aetna adopted in full and thus found itself the target of a series of class-action lawsuits brought by patients as well as providers.

The substandard policies sold by Aetna made up a substantial portion of the plans that were banned by the ACA. The people who had to give up that “coverage” became symbols of the supposed oppression of Obamacare.

Although they try hard to hide the fact, Republicans — and now Trump — are setting the stage for a resurgence of the bare-bones policies under the banner of affordability. That will be catastrophic coverage in every sense of the word.

Aetna’s Deception and the ACA Crisis

One of the decisive moments in the 2016 election campaign came last summer, when major insurance companies cut back their involvement in the Affordable Care Act exchanges after claiming they were losing money in the market. This was seized on by Trump and other Republicans to further denigrate the ACA and argue the need for repeal and replace.

Evidence has now emerged suggesting that the insurers’ claims were more of the lies that tainted the whole campaign and that those lies were motivated by an attempt to influence the federal government’s policy on mergers.

What was often overlooked during discussions of the health insurance industry last year was that the biggest concern of the major firms was the fate of their attempt to capture greater market share through giant acquisitions. Aetna was seeking to acquire Humana, and Anthem wanted to join forces with Cigna. The two proposed deals, worth about $85 billion, would reduce the number of major players to three (the other being UnitedHealth).

The Obama Administration and multiple states challenged the mergers, which ended up in court. Recently a federal district court judge sided with the Justice Department in the Aetna-Humana case; another judge is expected to rule soon on the Anthem-Cigna deal.

In his 158-page ruling on the Aetna matter, U.S. District Judge John D. Bates cited evidence indicating that the company’s decision to leave ACA exchanges in 17 counties in three states (Florida, Georgia and Missouri) was designed to “improve its litigation position.” In other words, its main reason for dropping out was not the profitability of those markets but rather the attempt to make it more likely that the Humana acquisition would be approved.

The opinion reveals (on p.125) that when Aetna met with officials at the Justice Department and the Department of Health and Human Services prior to the filing of the government’s complaint it “connected this lawsuit with its future participation in the exchanges” and threatened (p.126) to withdraw from those exchanges if the merger were not approved.

Also included in the opinion is an excerpt (p.127) from an e-mail in which Aetna CEO Mark Bertolini stated that “the administration has a very short memory, absolutely no loyalty and a very thin skin.” Asked in a deposition what he meant by that, Bertolini expressed resentment that the administration was opposing the merger despite Aetna’s role in supporting the ACA during the battle over its enactment.

The judge went on to cite (p.129) internal company e-mails in which, in the words of the opinion, “Aetna executives tried to conceal from discovery in this litigation the reasoning behind their recommendation to withdraw from the 17 complaint counties.” That effort was unsuccessful.

Overall, the court found that the exchange counties from which Aetna was withdrawing were a mix of profitable and unprofitable ones, thus undermining the claim that the move was purely a business decision.

While Aetna’s deception failed to sway the government or the lawsuit, it had a significant political impact amid a heated campaign. Now that the campaign is over and the ACA opponents prevailed, Aetna and the other insurance giants are staying silent as Republicans move to gut the law.

It’s unclear whether the firms expect the exchanges to survive in some form or they are rooting for a return to the old days of minimal regulation. In either event, it’s clear that companies like Aetna and Anthem are putting their desire for oligopolistic control above all else.

False Claims and Other Frauds

ViolationTracker_Logo_Development_R3 The False Claims Act sounds like the name of a Donald Trump comedy routine, but it is actually a 150-year-old law that is widely used to prosecute companies and individuals that seek to defraud the federal government. It is also the focus of the latest expansion of Violation Tracker, the database of corporate crime and misconduct we produce at the Corporate Research Project of Good Jobs First. The resource now contains 112,000 entries from 30 federal regulatory agencies and all divisions of the Justice Department. The cases account for some $300 billion in fines and settlements.

Through the addition of some 750 False Claims Act and related cases resolved since the beginning of 2010, we were able to identify the biggest culprits in this category. Drug manufacturers, hospital systems, insurers and other healthcare companies have paid nearly $7 billion in fines and settlements. Banks, led by Wells Fargo, account for the second largest portion of False Claims Act penalties, with more than $3 billion in payments. More than one-third of the 100 largest federal contractors have been defendants in such cases during the seven-year period.

Among the newly added cases involving healthcare companies, the largest is the $784 million settlement the Justice Department reached last April with Pfizer and its subsidiary Wyeth to resolve allegations that they overcharged the Medicaid program. DaVita HealthCare Partners, a leading dialysis provider, was involved in the next two largest cases, in which it had to pay a total of $800 million to resolve allegations that it engaged in wasteful practices and paid referral kickbacks while providing services covered under Medicare and other federal health programs.

Wells Fargo accounts for the largest banking-related penalty and the largest False Claims Act case overall in the new data: a $1.2 billion settlement earlier this year to resolve allegations that the bank falsely certified to the Department of Housing and Urban Development that certain residential home mortgage loans were eligible for Federal Housing Administration insurance, with the result that the government had to pay FHA insurance claims when some of those loans defaulted.

Thirty-five of the 100 largest federal contractors (in FY2015) have paid fines or settlements totaling $1.8 billion in False Claims Act-related cases since the beginning of 2010. The biggest contractor, Lockheed Martin, paid a total of $50 million in four cases, while number two Boeing paid a total of $41 million in two cases.

The database has also added new search features, such as the ability to search by 49 different types of offenses, ranging from mortgage abuses to drug safety violations. Users can view summary pages for each type of offense, showing which parent companies have the most penalties in the category. Penalty summary pages for parents, industries and agencies now also contain tables showing the most common offenses. Users can add one or more offense type to other variables in their searches.

Among types of offenses, the largest penalty total comes from cases involving the packaging and sale of toxic securities in the period leading up to the financial meltdown in 2008. The top-ten primary case types are as follows:

Toxic securities abuses: $68 billion
Environmental violations: $63 billion
Mortgage abuses: $43 billion
Other banking violations: $18 billion
Economic sanction violations: $14 billion
Off-label/unapproved promotion of medical products: $12 billion
False Claims Act cases: $11 billion
Consumer protection violations: $9 billion
Interest rate benchmark manipulation: $7 billion
Foreign Corrupt Practices Act cases: $6 billion

We also added a feature allowing for searches limited to companies linked to parent companies with specific ownership structures such as publicly traded, privately held, joint venture, non-profit and employee-owned. That’s in addition to updating the data from the agencies already covered and increasing the size of the parent company universe to 2,165.

The uproar over the Wells Fargo sham accounts scandal is heightening the discussion of corporate crime. Violation Tracker hopes to be a tool in efforts to turn that discussion into lasting change.

Insurers Show Their True Colors

healthcare-profits One of the key building blocks of the Affordable Care Act was the notion that insurance companies would compete with one another to offer good deals to the uninsured once that population was required to purchase coverage. That captive market is not working out as well as hoped.

Just the other day, Aetna became the last of the five major national carriers to project a loss on ACA business for 2016 while announcing the cancellation of a planned expansion of its participation in the ACA state exchanges and a reevaluation of its current involvement. This came in the wake of recent news that UnitedHealth and Humana would also be cutting back on their exchange offerings.

These carriers attributed their moves to higher than expected medical costs among exchange participants. For all the talk about a reformed health insurance industry, the companies still operate according to a perverse dynamic. They make money when more people don’t seek healthcare services. The insurers can’t get away with many of the tricks they used in the past to deny coverage, but they can still walk away from certain market segments such as ACA plans when profits are not as high as they would like.

The steps by Aetna and the others will intensify what is already a dwindling amount of competition in some of the state exchanges. Several are in a situation in which only one insurer is expected to offer marketplace plans. The result is a kind of single payer situation, though not in the good sense.

All of this is happening while the major insurers have been trying to diminish competition in another way — by trying to merge with one another. Aetna has been seeking to acquire Humana, and Anthem wants to join forces with Cigna. The two proposed deals, totaling about $85 billion, would reduce the number of major players to three.

Last month, the Justice Department and multiple states filed challenges to the two proposed mergers. It is unclear to what extent Aetna’s announcement about a pullback in the exchanges is meant to put pressure on the Obama Administration to back off from its opposition to the Humana deal.

What is clear is that Aetna has a long history of using hard-ball tactics dating back to its purchase of the notorious HMO U.S. Healthcare two decades ago. Aetna tried to apply some of the worst features of managed care — including bare-bones policies — to its health insurance business and ended up with a wave of litigation and regulatory violations. An attempt by plaintiff lawyers to bring a massive tobacco-industry-type case against the industry failed, but Aetna did have to pay $470 million to settle a class-action suit brought by physicians over inadequate payments.

Aetna’s track record was one of the main pieces of evidence showing the folly of the decision by the Obama Administration and Congressional Democrats to shun single payer (or even the public option) and embrace the big insurers. That Faustian choice is coming back to haunt the Dems, who are now trying to resurrect the public option. It may be too late.

Manufacturing McJobs at Nissan and Elsewhere

Bring back manufacturing jobs: For years this has been put forth as the silver bullet that would reverse the decline in U.S. living standards and put the economy back on a fast track. The only problem is that today’s production positions are not our grandparents’ factory jobs. In fact, they are often as substandard as the much reviled McJobs of the service sector.

The latest evidence of this comes in a report by the UC Berkeley Center for Labor Research and Education, which has issued a series of studies on how the growth of poorly paid jobs in retailing and fast food have burdened government with ever-rising social safety net costs. Now the Center shows how the same problem arises from the deterioration of job quality in manufacturing. The study estimates that one-third of the families of frontline production workers have to resort to one or more safety net program and that the federal government and the states have been spending about $10 billion a year on their benefits.

What makes these hidden taxpayer costs all the more galling is that manufacturing companies enjoy special benefits in the federal tax code and receive lavish state and local economic development subsidies, the rationale for which is that the financial assistance supposedly helps create high-quality jobs.

The Center’s analysis deals in aggregates and thus does not single out individual companies, but it is not difficult to think of specific firms that contribute to the vicious cycle. A suitable poster child, it seems to me, is Nissan. It is one of those foreign carmakers credited with investing in U.S. manufacturing, though like the other transplants it did so in a pernicious way.

First, it tried to avoid being unionized by locating its facilities in states such as Mississippi and Tennessee that are known to be unfriendly to organized labor. After the United Auto Workers nonetheless launched an organizing drive, the company has done everything possible to thwart the union.

Second, while boasting that its hourly wage rates for permanent, full-time workers are close to those of the Big Three domestic automakers, Nissan has denied those pay levels to large chunks of its workforce. Roughly half of those working at the company’s plant in Canton, Mississippi are temps or leased workers with much lower pay and little in the way of benefits.

It is significant that in the Center’s report, Mississippi — which has also attracted manufacturing investments from other foreign firms such as Toyota and Yokohama Rubber — has the highest rate of participation (59 percent) in safety net programs by families of production workers. The Magnolia State may have experienced a manufacturing revival, but many of those new jobs are so poorly paid that they are creating a burden for taxpayers.

At the same time, Mississippi is among the more generous states in dishing out the subsidies to those foreign investors. My colleague Kasia Tarczynska and I discovered that the value of the incentive package given to Nissan in 2000 will turn out to cost $1.3 billion — far more than was originally reported. Toyota got a $354 million deal in 2007, and Yokohama Rubber got a $130 million one in 2013.

There’s a lot of talk these days about bad trade deals and resulting job losses. We also need to worry about what happens when we gain employment from international investment but the jobs turn out to be lousy ones.

Johnson & Johnson’s Self-Inflicted Wounds

Baby powder, the product along with Band-Aids that for decades gave Johnson & Johnson a benign image, is now the latest symbol of its deterioration into one of the most unreliable of large corporations. Juries have recently awarded a total of $127 million to women with ovarian cancer who charge that their disease was caused by the talc in the company’s powder.

J&J, which disputes the allegations and is appealing the verdicts, faces some 1,400 additional similar lawsuits brought by plaintiffs’ lawyers armed with company documents they say show that J&J was concerned about a link between talcum powder and ovarian cancer as early as the 1970s. It is unclear what will happen with the litigation, but the lawsuits are part of a long string of scandals that have plagued the giant medical products firm during the past decade and forced it to pay out vast sums in civil settlements and criminal fines.

The most serious of those cases involved allegations that several of its subsidiaries marketed prescription drugs for purposes not approved as safe by the Food and Drug Administration, thus creating potentially life-threatening risks for patients.

In 2010 J&J subsidiaries Ortho-McNeil Pharmaceutical and Ortho-McNeil-Janssen had to pay $81 million to settle charges that they promoted their epilepsy drug Topamax for uses not approved as safe. The following year, J&J subsidiary Scios Inc. had to pay $85 million to settle similar charges relating to its heart failure drug Natrecor.

In 2013 the Justice Department announced that J&J and several of its subsidiaries would pay more than $2.2 billion in criminal fines and civil settlements to resolve allegations that the company had marketed it anti-psychotic medication Risperdal and other drugs for unapproved uses as well as allegations that they had paid kickbacks to physicians and pharmacists to encourage off-label usage. The amount included $485 million in criminal fines and forfeiture and $1.72 billion in civil settlements with both the federal government and 45 states that had also sued the company.

At a press conference announcing the resolution of the case, U.S. Attorney General Eric Holder said the company’s practices ”recklessly put at risk the health of some of the most vulnerable members of our society — including young children, the elderly and the disabled.”

Other J&J problems resulted from faulty production practices. During 2009 and 2010 the company had to announce around a dozen recalls of medications, contact lenses and hip implants. The most serious of these was the massive recall of liquid Tylenol and Motrin for infants and children after batches of the medication were found to be contaminated with metal particles.

The company’s handling of the matter was so poor that J&J subsidiary McNeil-PPC became the subject of a criminal investigation and later entered a guilty plea and paid a criminal fine of $20 million and forfeited $5 million.

J&J also faced criminal charges in an investigation of questionable foreign transactions. In 2011 it agreed to pay a $21.4 million criminal penalty as part of a deferred prosecution agreement with the Justice Department resolving allegations of improper payments by J&J subsidiaries to government officials in Greece, Poland and Romania in violation of the Foreign Corrupt Practices Act. The settlement also covered kickbacks paid to the former government of Iraq under the United Nations Oil for Food Program.

All of this has been a humiliating comedown for a company that was once regarded as a model of corporate social responsibility and which set the standard for crisis management in its handling of the 1980s episode in which a madman laced packages of Tylenol with cyanide. While the company was then being victimized, the more recent crises have been largely of its own making.

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Note: This piece is drawn from my new Corporate Rap Sheet on Johnson & Johnson, which can be found here.

Dual Perils Confront the ACA

scylla-and-charybdis-bookpalace The Affordable Care Act is a Rube Goldberg-like contraption based on both private-sector competition and government subsidies. Both of those elements are in danger of collapse.

The disappearance of the federal subsidies that enable millions of lower-income people to purchase the coverage they are now required to have is, of course, a possible outcome of an imminent Supreme Court ruling. It is mind-boggling that the King v. Burwell case, a brazen effort by diehard Obamacare opponents to exploit an obvious drafting error in the ACA, has gone this far and might actually succeed. It says a lot about the mangled state of public policy in this country that we see a front-page story in the New York Times about the growing panic among conservatives that they might win and be held responsible for the ensuing chaos. Apparently, they forgot there is a difference between taking meaningless votes in the House and bringing a case to a high court with a significant contingent of Justices inclined to take ideological posturing seriously.

Also at risk is the system in which private insurance carriers are supposed to compete against one another to provide coverage in the exchanges to their expanded pool of captive customers. In many places, that competition was not very robust to begin with, but now it may become even more diminished.

According to reports in the business press, the biggest for-profit health insurance companies are looking to gobble up their slightly smaller rivals. The Wall Street Journal says UnitedHealth Group has its eye on Aetna, which in turn is said to be exploring some form of cooperation with Humana, whose success in selling supplementary insurance to Medicare enrollees is attractive. At the same time, the Journal reports, Anthem has been in negotiations with Cigna, which is also said to be talking to Humana.

We can see where all this is going. Unless antitrust regulators show some backbone, the current private health insurance oligopoly could turn into a duopoly. The non-profit portion of the market does not provide much help. The 37 independently owned companies that make up the Blue Cross and Blue Shield network are increasingly inclined to divvy up markets and avoid competing with one another, according to lawsuits now pending in federal court. The litigation charges that the behavior of the Blues, some of which are controlled by for-profits such as Anthem, is driving up premium costs for customers while at the same time pushing down payment rates for physicians and other healthcare providers. These predatory practices threaten both the ACA and traditional employer-provided plans.

In the eyes of the Administration, the big insurers are the good guys. Initially suspicious of the ACA, the companies came to accept the law and even turned into major boosters. They embraced ACA’s Medicaid expansion component, seeing opportunities for managed care business in some states, and supported the Administration’s position in King v. Burwell. A SCOTUS ruling in the other direction would take a big hit on their soaring stock prices.

That’s where mainstream healthcare reform has left us — caught between predatory insurance providers on the one side and nihilistic ideologues on the other.

Corporate Benefit Cutters Still Shifting Costs to Taxpayers

walmart_jwj_subsidies Wal-Mart’s recent announcement that it will snatch health coverage away from 30,000 part-timers is not just the latest in a long series of Scrooge-like actions by the giant retailer. It is also a sharp reminder of both the necessity of the Affordable Care Act and the deficiencies of that law.

If we think back to the time before Obamacare became a political lightning rod, we may recall that it was precisely the behavior of corporations such as Wal-Mart that created the need for healthcare reform.

In addition to paying low wages, Wal-Mart had long been criticized for providing inadequate benefits to its employees. In 2003 the Wall Street Journal published an article describing the various ways in which the company kept its spending on health benefits as low as possible. This was explored in more detail in an AFL-CIO study that came out about the same time.

This evidence, combined with reports that the company was encouraging its workers to apply for Medicaid and other government social safety net programs, prompted critics to argue that Wal-Mart was in effect shifting some of its labor costs onto taxpayers. In 2004, the Democratic staff of the House Committee on Education and the Workforce published a report estimating that the average Wal-Mart employee used federal safety net programs costing $2,103 per year.

Over the following few years, state governments were encouraged to reveal which employers accounted for the most enrollees (including dependents) in Medicaid, the State Children’s Health Insurance Program and other forms of taxpayer-funded health coverage. For those states that did disclose those lists, Wal-Mart was almost always at or near the top. My colleagues and I at Good Jobs First still maintain a compilation of these disclosures, though most of the data is now woefully out of date.

Healthcare reform should have put an end to all this, ideally by creating a system of Medicare for all funded with higher taxes on business. Of course, what we got was something else. Ironically, one of the most positive aspects of the Affordable Care Act – the expansion of Medicaid eligibility in some states – may be increasing the amount of hidden taxpayer costs generated by employers such as Wal-Mart. Yet that’s less important that the extension of those benefits to families desperately in need.

The ACA’s impact on the large portion of the workforce not enrolled in public programs is even more complicated. Although the law depends heavily on private insurance, it does not, strictly speaking, require employers to provide group coverage. Instead, what is often called the law’s employer mandate is a half-baked arrangement that will simply require larger companies (50 or more FTEs) that fail to provide adequate group coverage to pay a penalty.

That penalty is likely to be less than the cost of providing coverage and it will kick in only if at least one full-time employee of a company ends up getting federally subsidized coverage through the state or federal exchanges created by the ACA. It thus appears that companies such as Wal-Mart, Target and Home Depot that dump part-timers from their plans will be able to avoid the penalties, which in any event are not yet in effect as a result of several postponements by the Obama Administration.

While the ACA is helping more people get coverage, it does nothing to thwart low-road employers from continuing to shift what should be their health coverage costs onto taxpayers. It also appears to do nothing to help us discover which corporations are guilty of this practice, since there are no explicit provisions for making public the coverage reports that large employers will be required to file with the IRS.

Not only does the ACA fail to impose a meaningful employer mandate; it also misses an opportunity to shame those freeloading employers which expect taxpayers to pick up the tab for their failure to provide decent coverage to all their workers.