Health Insurance Industry Consolidation: Any ‘Qui Tam’ Exposure?

by Gregg A. Masters, MPH

If you’re a health policy junkie like me, then the best show in town (or anywhere for that matter) was in the Dirksen Senate Office Building in Washington, D.C., where HMO industry veteran and Chairman, President and CEO of Aetna Mark T. Bertolini and Anthem President and CEO Joseph R. Swedish among other industry stakeholders testified before the Senate Judiciary Subcommittee on Antitrust, Competition Policy and Consumer Rights on health insurance industry consolidation, for video replay click here or watch below:senate hearing health insurance industry

As most of you reading this blog know, subject to the Department of Justice review Aetna will acquire Humana, and Anthem will acquire CIGNA. Thus, the submitted testimonies and ad hoc answers to sitting Senators on the Subcommittee were potentially a high stakes exchange.

Moreover, the hearing today was nothing short of a tutorial into the dynamics of the managed competition marketplace (both theory and practice since absent complete transparency assuming the salutary benefits of such competition may be more ‘wishful thinking‘ than reality as noted by Senator Blumenthal – CT, the home of the insurance industry) and whether this unique American strain of public/private collaboration can deliver on the oft repeated promises of such integration, i.e., that scale via consolidation drives operating efficiencies, improves quality and lowers costs to end users. We shall see…

As I heard the pitches from the various representatives assembled to offer perspective to the sitting Senators (see list here), I began to wonder if any of their testimony would be subject to the ‘false claims Act‘ if post consolidation the promised benefits do not accrue to the intended benefactors.

For those of you not familiar with the ‘False Claims Act‘ or otherwise known as Qui Tam filings, here a summary including its recent expanded scope via the Affordable Care Act:

The False Claims Act, expanded by the Fraud Enforcement and Recovery Act of 2009, P.L. 111-21 (S. 386), 123 Stat. 1617 (2009), now proscribes: (1) presenting a false claim; (2) making or using a false record or statement material to a false claim; (3) possessing property or money of the U.S. and delivering less than all of it; (4) delivering a certified receipt with intent to defraud the U.S.; (5) buying public property from a federal officer or employee, who may not lawfully sell it; (6) using a false record or statement material to an obligation to pay or transmit money or property to the U.S., or concealing or improperly avoiding or decreasing an obligation to pay or transmit money or property to the U.S.; (7) conspiring to commit any such offense. Additional liability may also flow from any retaliatory action taken against whistleblowers under the False Claims Act. Offenders may be sued for triple damages, costs, expenses, and attorneys fees in a civil action brought either by the United States or by a relator (whistleblower or other private party) in the name of the United States.
If the government initiates the suit, others may not join. If the government has not brought suit, a relator may do so, but must give the government notice and afford it 60 days to decide whether to take over the litigation. If the government declines to intervene, a prevailing relator’s share of any recovery is capped at 30%; if the government intervenes, the caps are lower and depend upon the circumstances. Relators in patent and Indian protection qui tam cases are entitled to half of the recovery.

Not sure if qui tam consideration can or even remotely applies to the upside representations proffered in favor of the acquisitions, since as noted by one or more witnesses today much of the empirical (public) record is incomplete and inconsistent with respect to supporting or discounting the arguments that will or have been made to DOJ as they conduct their anti-trust investigation into the proposed acquisitions or mergers.

[Editor’s Note: Two examples of previous health insurance industry consolidations were noted, including Aetna’s 1999 acquisition of PruCare, and United Health Group’s acquisition of Sierra Health Services. I will post the submitted witness testimony once it becomes available online, including any current discussion ‘tea leaves’ of what and where the DOJ investigation may be headed in both transactions. If you have anything, please feel free to add in comments section.]

This Subcommittee hearing is rich with both fundamentals and nuance considerations of the Affordable Care Act and whether it’s many moving parts can indeed align to meet the legislative intent of its authors.

Stay tuned!

ACOs: The Results So Far (It Depends)

by Gregg A. Masters, MPH

It might have been prescient but minimally it was perfect timing. While Fred Goldstein, President of Accountable Health, LLC, and me were prepping for our session to re-cap on PopHealth Week (@PopHealthWeek) some of the insights from our deep dive series into Population Health and ACOs, reporting insights from embedded executives at physician led, hospital sponsored and health plan enabled ACOs respectively, CMS yesterday (August 25th) posted the results from their participants in the MSSP and Pioneer Programs.

The Pioneer results are displayed below (for a description of the Pioneer program click here):CMS_ACO_Results_Pioneers
Again, while we’re still very early in this game, one bit of ‘cognitive dissonance’ that I experienced is worthy of note and further exploration.

That being the Heritage ACO a physician led enterprise fielded by managed care industry veteran and disruptive innovator Richard Merkin, MD, et al (including my former American Medical International colleague Mark Wagar, President Heritage Medical Systems and most recently CEO Empire Blue Cross and Blue Shield) untethered in any way from an institutional portfolio of healthcare infrastructure (i.e., hospitals) booked zero savings for distribution while hospital tethered and a card carrying member of the Association of American Medical Colleges (@AAMCtoday) (as the principal teaching hospital for Einstein College of MedicineMontefiore ACO booked massive (relative to ‘aligned beneficiares’) savings.

One must ponder the question and ask how can this be so?

It’s common knowledge that ACOs ‘untethered’ from (heads in beds) legacy hospital interests are more nimble and therefore better positioned to manage the volume-to-value transition. Further, when you add into the mix the history of successful risk assumption across a distributed network of ‘aware’ coordinated care practices (both IPA and medical group) you have a material competitive advantage.

So perhaps the ‘devil is in the details‘ as it often is, and the answers are to be found in the formulaic world of risk adjusters, corridors, baselines and severity of illness calculations. We hope top hear direct from Heritage ACO as this author has made that request a number of times previously.

Another interesting result that stands out as it arguably tethers to the presumptively competitively disadvantaged ‘health plan enabled‘ camp of ACOs is the incredible savings generated by the Banner Health Network (a Pioneer ACO), which if memory serves me well is a co-creation of Banner and Aetna via their ‘payor agnostic’ Healthagen subsidiary.

For complete details see the CMS release ‘Medicare ACOs Continue to Improve Quality of Care, Generate Shared Savings‘ and ‘Medicare ACOs Provide Improved Care While Slowing Cost Growth in 2014‘.

Meanwhile for a bit of reading the tea leaves color via Beckers Hospital Review see CMS releases 2014 Medicare ACO quality, financial results: 10 things to know):

1. Ninety-seven ACOs qualified to share in savings by meeting quality and cost benchmarks. Together, they earned shared savings payments of more than $422 million.

2. Fifteen of the 20 participating Pioneer ACOs generated a total of $120 million in savings in 2014, their third performance year. This is up 24 percent from the second performance year when they generated $96 million in savings. Of those that generated savings, 11 earned shared savings payments of $82 million.

3. Five Pioneer ACOs generated losses and three owed CMS shared losses of $9 million.

4. Pioneer ACOs increased their average quality scores to 87.2 percent in performance year three from 85.2 percent in performance year 2. They improved an average of 3.6 percent compared to performance year two on 28 of the 33 quality measures and showed significant improvement in medication reconciliation, clinical depression screening and follow-ups, and EHR incentive payment qualification…

Read complete article here.

Yes we do live in interesting times. And ideological prism not-withstanding there is no way this Genie (ACOs et al, and whatever formulaic derivatives may be forthcoming) gets put back in the bottle – the best efforts of Governor Scott Walker’s ‘bold’ The Day One Patient Freedom Plan (more likevaporware‘) effort to repeal and replace the Affordable Care Act.

This train has left the station. Time to deal with it?

Value Based Care: what we can learn from those who succeeded (and failed) in Year 1 of the Medicare Shared Savings Program?

By Randall Williams, MD*

“The definition of insanity is doing the same thing over and over again and expecting different results.” — Albert Einstein

einsteinIf you want to lead your organization to success with value based care, I’d like to help you avoid the mistake of committing organizational insanity. As I’ve written before, all value based contracting will require a different and diligent focus on reducing cost. In order to win, you need a model that will help you do that. But first, there’s a lot to learn from those who succeeded (and failed) in the first year results of the Medicare Shared Savings Program (“MSSP”).

The first year impact of MSSP has received lots of attention in the media. To sum it up:

Only ¼ of all MSSP organizations achieved ANY financial success, as measured by receiving shared savings.

cms_logoThat statistic is concerning and has caused hand-wringing inside and outside the Beltway, but it is not surprising. Why? It’s simple really — most ACOs are still working on basic organizational issues like:

  • integrating their doctors
  • getting CMS claims data into a format that can be analyzed
  • documenting and reporting quality performance metrics

While that work is necessary, it is not at all sufficient. It won’t generate the cost savings required to get to the shared savings bonus opportunity. MSSP organizations, depending a bit on their size, must reduce the total beneficiary cost (Medicare Part A and Part B) by at least 2.5 – 3.5%. Yet few are focusing on doing things differently when it comes to managing their population’s utilization and costs.

Imagine the following scenario:

The average beneficiary in your ACO spends $9,000 per year.

You have 10,000 beneficiaries.

Your savings threshold is 2.8%.

In order to get into the bonus category, you will need to avoid at least $2.5 million a year in medical expenditures. That doesn’t just happen on its own.

Sounds like tough work, you say. Maybe we can’t get there, you say. But some of your peers actually accomplished that in their first year.

Were they simply lucky, perhaps having the “good” fortune of a high starting point to work from? Or might their success be a result of the Medicare reconciliation “Black Box”? Evidence and analysis elsewhere suggests these aren’t the explanations. So what is?

Medicare’s own analysis of the Year One winners (those who got bonuses) gives some important insights to the real answer. From that data, we can see that:

  • Winners saved about 6% per beneficiary overall
  • Winners reduced hospitalizations by 52%, ER visits by 41%, and inpatient costs by 69%
  • Winners achieved a 40% decrease in admissions for heart failure patients and a 25% decrease in admissions for COPD patients
  • Winners dropped hospital readmission rates by 26%

What does this mean to organizational leaders looking to achieve savings bonuses?

  • Get your organization focused on avoidable admissions and readmissions to the hospital
  • Eliminate enough admissions to drive down overall costs by >5%
  • Establish a monthly goal of averted admissions that you can measure and manage over the course of each performance year
  • And whatever else you decide to do, don’t simply assume that doing what you’ve always done will get you different results!

For other useful analysis of MSSP results, I recommend reading insights from the Brookings InstituteMedicare ACOs Continue to Improve Quality, Some Reducing Costs‘. Please feel free to share your thoughts about winning with value based care in the comment section.


Dr. Williams is the founding Chief Executive Officer of Pharos Innovations. He is responsible for setting the vision and overseeing the execution of Pharos’ mission to transform healthcare through patient engagement in self-care. He has 16 years of executive experience developing chronic care monitoring programs.

The above is a guest post originally published here.

Tom Scully Tutorial & Diagnosis of Medicare Program

By Gregg A. Masters, MPH

washington journal scully on medicareAn excellent ‘tutorial’ of sorts on the Medicare program is provided by Tom Scully, former Bush era (2001-2004) administrator of the Centers for Medicare and Medicaid Services, who opines on the Medicare and Medicaid Acts of 1965.

He discusses President Lyndon Bain Johnson’s vision of the bill and looks at the present state of the program including his preference for ‘means testing’, the role of Medicare Advantage and issues associated with the expansion of Medicaid via the Affordable Care Act.

Scully also fires a shot over the bow of the The National Committee to Preserve Social Security and Medicare claim via ‘Top 10 Reasons Americans Love Medicare‘ questioning the relative ‘efficiency’ of the program compared to it’s commercial equivalents or fee-for-service (‘traditional’) Medicare.

7.  Medicare is efficient. Only 1% of traditional Medicare’s spending is overhead compared to 9% for private insurance and 6% for privatized Medicare (aka Medicare Advantage plans).

Scully notes:

Yeah, I think that’s completely and totally wrong… I’m trying not to be partisan and be objective on this. But look  Medicare is a wonderful program. It’s incredibly efficient….but basically what Medicare is it’s a single payer system where the Government pays every doctor in Toledo and every hospital the same thing. So the problem is as you have in any system – in the history of any economy in the world – when you fix prices, is volume…. so what you get is competition over volume….which is what they are incentivized to do…  

Regarding CMS, on the ‘efficiency’ claim Scully notes, perhaps in a moment of hyperbole:

I love CMS. The employees are great. They have no clue what’s going on in the healthcare system…it’s just by design that they don’t.

The video segment is courtesy of Washington Journal with original source link here. For a chronology of Medicare see: ‘Medicare Turns 48‘ courtesy of AARP.

For additional Scully insights see: ‘Care Innovation Summit: A Very Sober Assessment!

NOTE: If only Scully type rationality were native to the ‘don’t confuse me with facts’ oppositional Republican mindset of some these days, we’d be more about fixing problems than blame – just saying.

The 5th Annual ACO Summit

By Gregg A. Masters, MPH

Can’t make the annual gathering in DC? Why not follow the conference via Twitter?

ACO Summit 5th Annual MeetingIn years past, I registered the ACO Summit as a conference with the healthcare hashtags registrar @Symplur.

While the dashboard has not been updated with current information (the program description dates back to 2012), the conference hashtag remains #ACOsummit.

So check out the twitter stream, pull real time analytics including ‘reach’, impressions’ and tweet frequency here.


Care Innovation Summit: A Very Sober Assessment!

By Gregg A. Masters, MPH

This session is well worth the time invested. Two veteran healthcare wonks weigh in on the fundamentals of healthcare transformation and where we stand in the glide-path towards sustainability or fulfillment of the ‘triple aim’.

Former CMS Administrator and healthcare attorney turned investor Tom Scully (Bush I Administration, see Wikipedia profile) and Peter Orszag (former CBO and OMB Director respectively, with tenures in both Obama & Clinton Administrations) reflect on health reform and more.

[NOTE: Their session begins at the 1:45:00 mark.]

Just some amazing and hard hitting reflections on where we are, where we need to go and just what we might be aiming for business model-wise. Spoiler alert: It starts with a ‘C’.

Also, earlier is a worthwhile session from Patrick Conway, MD, Chief Medical Officer, CMS and the Director of the Center for Medicare and Medicaid Innovation (CMMI). Dr. Conway touches on quite a bit including a deeper dives into the many moving parts of the CMMI innovation mission.

CMS Innovation Portfolio


Conway also iterates on the status of ACOs, including what may be generalized from the ‘lessons learned’ via Pioneer ACOS that may be infused in the MSSP class via statute or national ‘scaling.’ [Note: watch for insightful comment about press and question asked by one reporter in audience].

Accountable Care Organization Update

This may be one of the best and candid discussions I’ve heard to date on the ACA, ACOs and where and how we’re going to transform the rapacious appetite of the ‘healthcare borg’. Scully is a brother from another mother, referring to MedPartners and PhyCor in the same breath.

Who says there is no value to institutional memory or grey hair per se! Some of us have been to this dance before!





My Chat with Nicole Bradberry

This Week in Accountable Care Meet Nicole BradberryOn the anniversary of the launch of the Florida Association of ACOs and the vital role of MSOs in supporting the operations of disruptive business models chasing the sustainable healthcare ecosystem I had a round two conversation with Nicole Bradberry, President and Chief Operating Officer of Orange Health Solutions and CEO of the Florida Association of ACOs.

Listen as we learn more about the accountable care market one year later, including insights on the investment by Great Point Partners in Orange Health Solutions enabling the acquisition of MZI Healthcare including it’s suite of products built on the EZCAP chassis.