The SCOTUS Healthcare Decision Cometh

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[UPDATE:Okay, from the SCOTUSBlog “The entire ACA is upheld, with exception that federal government’s power to terminate states’ Medicaid funds is narrowly read.” Key language from the decision on the mandate:

The money quote from the section on the mandate: Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A under the taxing power, and that Section 5000A need not be read to do more than impose a tax. This is sufficient to sustain it.

And, boy howdy, was I wrong. I steadfastly maintained that CJ Roberts would never be the swing vote on a 5-4 majority, but would only join a liberal majority on the heels of Tony Kennedy. WRONG! The mandate survives solely as a result of Roberts and without Kennedy. Wow.

Final update thought. While I think the mandate should have been constructed as a tax, it clearly was not in the bill passed. You want to talk about “legislating from the bench”? Well hard to see how this is not a remarkable example of just that. I am sure all the plebes will hypocritically cheer that, and fail to note what is going on. Also, if the thing is a “tax” how is it not precluded as unripe under the AIJA? don’t have a fine enough reading of the opinion – read no reading yet – to discern that apparent inconsistency.

As to the Medicaid portion, here is the key opinion language on that:

Nothing in our opinion precludes Congress from offering funds under the ACA to expand the availability of health care, and requiring that states accepting such funds comply with the conditions on their use. What Congress is not free to do is to penalize States that choose not to participate in that new program by taking away their existing Medicaid funding.

Oh well, people on the left have been crying for this crappy law, now you got it. Enjoy. I will link the actual opinion as soon as it is available.

And here is THE FULL OPINION]

Well, the long awaited moment is here: Decision Day On The ACA. If you want to follow the live roll out of the Supreme Courts decisions, here is a link to the incredibly good SCOTUSBlog live coverage. Coverage starts at 9 am EST and the actual Court proceedings starting at 10 am EST.

This post will serve two functions. The first is to lay just a very brief marker, for better or worse (undoubtedly the latter I am afraid), going into decision day, hour and moment, and a ready location to post the decision of the court and link the actual opinions. The minute they are known and links available, they will be put here in an update at the top of the post. That way you can start the discussion ahead of the decisions, lay a record of your predictions ahead of time AND have a place to immediately discuss the rulings as they come in and immediately afterward.

Many friends and other pundits involved in the healthcare SCOTUS discussion have been working for weeks on alternative drafts of posts and articles to cover every contingency so they can immediately hit the net with their takes. That is great, and some of them will be a service. But I have just been too busy lately to expend that kind of energy on something so canned. Sorry about that. So my actual analysis and thoughts will mostly have to come later, but they will be on the merits, such as they may be, when the actual decisions are in. Also, I will be in comments and on Twitter (under “bmaz” of course).

Okay, with the logistics out of the way, I have just a few comments to lodge on the front end of this gig. First off, the ACA/PPA started off as truly about health insurance, not about health care from the start, and that is, still, never more true than today. Marcy laid out why this is, and why a LOT of people may get, or be forced into, purchasing health insurance, but there is a real question as to whether they will be able to afford to actually use what they will be commanded to buy. See here, here and here as a primer. Those points are pretty much as valid today as they were back when she wrote them.

Secondly, I have no real actual idea how the ruling will come down as to the merits. But, just for sport and grins, I guess I should take a stab at what I think after all the briefing and oral arguments, so here goes. The Anti-Injunction Act argument that the issue is a tax matter and therefore cannot be ripe for consideration until implemented and applied, will be rejected. The individual mandate is struck by a very narrow majority in a very carefully worded opinion written by John Roberts. The remainder of the ACA is deemed severable and is left to stand, and the Medicaid provisions are left intact, again by a narrow majority. Here is the thing, I would not bet one red cent of my own money on the foregoing; but if I could play with your money, I guess that is how I would roll. Maybe. Note that, before oral argument, my prediction was that the mandate would be upheld; I may regret not sticking with that call.

The real $64,000 question is the mandate, and that could just as easily be upheld, in which case it will likely be by a 6-3 margin (I still think Roberts writes the opinion, and if that is to uphold that means it will be 6-3). Here is what I will unequivocally say: however this goes down as to the mandate, it is a very legitimate issue; the arguments by the challengers, led by Randy Barnett, are now, and always were, far more cognizant than most everyone on the left believed or let on. I said that before oral argument, I said that after oral arguments and I say that now. Irrespective of what the actual decision turns out to be. Oh, and I always thought the hook liberals desperately cling to, Wickard v. Filburn, was a lousy decision to start with.

I have been literally stunned by the ridiculous hyperbole that has been blithely bandied about on the left on the ACA cases and potential striking of the mandate. Kevin Drum says it would be “ridiculous”, James Fallows says it would be a “coup!”, Liz Wydra says the entire legitimacy of SCOTUS is at issue, So do the Jonathans, Chait and Cohn. A normally very sane and brilliant guy, Professor David Dow, went off the deep end and says the justices should be impeached if they invalidate the mandate. The Huffington Post, and their supposed healthcare expert, Jeffrey Young, ran this insanely idiotic and insulting graphic. It is all some of the most stupefyingly hyperbolic and apoplectic rubbish I have ever seen in my life.

Curiously, the ones who are screaming about, and decrying,”politicization of the Court”, my colleagues on the left, are the ones who are actually doing it with these antics. Just stop. Please. The mandate, and really much of the ACA was ill conceived and crafted from the get go. Even if the mandate is struck, the rest of the law can live on quite nicely. Whatever the decision of the court, it will be a legitimate decision on an extremely important and very novel extension of Commerce Clause power that had never been encountered before.

One last prediction: Irrespective of the outcome today, the hyperbole will continue. So, there is the warm up. Let’s Get Ready To Rumble!

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Nate’s “Common Sense” on ObamaCare

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Nate Silver has a post purporting to show that it is “common sense” that SCOTUS overturning ObamaCare (Nate calls it the “health care bill,” which it is assuredly not) would not be good for Obama.

He argues his point by pointing to the very same data I did when arguing there are things Obama could do to make a SCOTUS loss work to his advantage. Nate notes that Obama doesn’t need ObamaCare one way or another to enthuse his base. Nate acknowledges that swing voters–the people who will decide the November election–don’t like ObamaCare. And then he notes that these same swing voters in general have a good opinion of SCOTUS. Nate summarizes the “common sense” he derives from this data this way:

However, the argument that the bill being struck down would actually help Mr. Obama seems to have little grounding in the evidence — nor, frankly, in common sense. Among the voters that are most critical to Mr. Obama’s re-election prospects, the Supreme Court is more popular than the health care bill. If the justices declare one of the president’s signature accomplishments to be unconstitutional, it would not be a boon to him.

The people who will decide the election don’t like ObamaCare and so–Nate’s common sense says–if law they don’t like goes away (in part or whole?), they will be less likely to vote for the guy who brought them that law they don’t like that has gone away. “Common sense”!

Let’s unpack the things Nate doesn’t talk about, in addition to his calling a health insurance law a health care bill.

First, he does what ObamaCare boosters tend to do in these discussions, not distinguish between a scenario where just the mandate is thrown out, and one in which the entire law is thrown out (due, largely, to the Administration’s own arguments about severability). Each scenario, it seems, would have different results. If SCOTUS threw out that part of the law people disliked most, it might make everyone–except the insurance companies and those arguing that a mandate is the only way to make this work–happy, particularly if the Administration promised to find a solution that would make the whole thing work (they won’t). Whereas if SCOTUS threw out the whole thing, it would lead people to become aware of the parts of the law people really do like, such as coverage for those with pre-existing conditions and kids under 26, and therefore develop a new appreciation for the law SCOTUS shot down. I think there are potential upsides and downsides for Obama in both those scenarios, but they are two different scenarios, and any “common sense’ ought to acknowledge that.

And then there’s the other assumption: that if SCOTUS threw out ObamaCare Obama would be utterly passive; that reactions to the SCOTUS decision would be entirely unaffected by Obama’s response because (presumably) there wouldn’t be one.

We already know that Obama will respond because he’s doing so already–by attacking the SCOTUS that, as Nate points out, is better liked by the people who will decide November’s election than ObamaCare is (in response, the 5th Circuit has gotten an order of magnitude more petty, threatening to let the whole thing devolve into an intra-branch squabble no one will like). I have already suggested that’s probably the least productive response; if that’s going to be Obama’s response, I agree, losing at SCOTUS will hurt him.

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ObamaCare SCOTUS Reaction: Why Not Find a Way to Make the Benefits Worth the Price?

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I was going to let bmaz handle the ObamaCare debate. But then I read this Jonathan Cohn piece–which asks whether SCOTUS’ likely decision to strike down the mandate will delegitimize the court. And I had to respond.

Cohn started his discussion on legitimacy last week with this post. In addition to, as bmaz argues, downplaying the importance of the limiting principle, Cohn describes how a named plaintiff in the case, Steven Hyder, explained his involvement in the case. Cohn focuses rather more on Hyder’s incoherent TeaParty rhetoric…

“It’s a complete intrusion into my business and into my private life,” he told me. “I think it’s one big step towards a socialist society and I’m purely capitalist. I believe in supply-side economics and freedom.”

Than on his more basic description of why he hasn’t bought health insurance…

He said his motive was straightforward. He’s opted not to carry health insurance because he doesn’t think the benefits justify the price, and he doesn’t want the government forcing him to do otherwise.

I’m rather more interested in this “straightforward motive” bit: Hyder says the benefits don’t justify the price.

I have no idea what Hyder’s income is, but remember that for around 16 to 19% of people affected by the mandate, buying health insurance would only limit, but not eliminate, the possibility of medical bankruptcy, without making health care for serious but not life-threatening problems financially accessible. That chunk of people would not be able to afford to use the insurance for anything more than the guaranteed preventative care and catastrophic care. And yet they would be asked to pay up to 8% of their income for this badly inadequate insurance.

Hyder may spout TeaParty rhetoric that makes it easy to dismiss him, but he also points to one of the realities of health insurance in this country: it is very expensive and for many people, its benefits may not immediately justify the cost.

With all that as background, let’s turn to Cohn’s catalog of opinions on whether SCOTUS’ decision will delegitimize the institution (note: Cohn doesn’t say whether he thinks SCOTUS will throw out just the mandate or the whole kit and kaboodle, which seems rather important, but the Administration’s own choices and arguments about severability may be responsible if the latter occurs).

To summarize the arguments Cohn lays out (these are my summaries–apologies for any distortions of the views portrayed):

Cohn: Overruling an act of Congress should erode the Court’s authority.

David Bernstein: The ruling won’t undermine the Court’s legitimacy because those who might object to it–liberal journalists, lawyers, and activists–have too much invested in the Court to make the case.

Scott Lemieux: The ruling won’t undermine the Court’s legitimacy because a significant chunk of elite opinion and a majority of the public would find the decision legitimate. And also, the ruling won’t lead to anything better because the insurance companies, which are the key agent, won’t let anything better arise.

Andrew Koppelman: The ruling will undermine the Court’s legitimacy because it will “force” Obama to spend “millions of dollars worth of television ads trying to persuade the American public that the Republicans on the Court are a bunch of despicable political hacks” and negative advertising works.

Of note, look at the differing emphasis on who has agency to affect the Court’s legitimacy: the liberal commentariat, insurance companies, and Obama.

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Requiem For ACA at SCOTUS & Legitimacy Of Court and Case

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The Patient Protection and Affordable Care Act (ACA), otherwise popularly known as “Obamacare” had a bit of a rough go of it this week at the Supreme Court. Jeff Toobin called it a train wreck (later upgraded to plane wreck). Kevin Drum termed it a “debacle” and Adam Serwer a “Disaster“.

Was it really that bad? Considering how supremely confident, bordering on arrogant, the Obama Administration, and many of the ACA’s plethora of healthcare “specialists”, had been going into this week’s arguments, yes, it really was that bad. Monday’s argument on the applicability of the tax Anti-Injunction Act (AIJA) went smoothly, and as expected, with the justices appearing to scorn the argument and exhibit a preference to decide the main part of the case on the merits. But then came Tuesday and Wednesday.

Does that mean the ACA is sunk? Not necessarily; Dahlia Lithwick at Slate and Adam Bonin at Daily Kos sifted through the debris and found at least a couple of nuggets to latch onto for hope. But, I will be honest, after reading transcripts and listening to most all of the audio, there is no question but that the individual mandate, and quite possible the entire law, is in a seriously precarious lurch.

Unlike most of my colleagues, I am not particularly surprised. Indeed, in my argument preview piece, I tried to convey how the challenger’s arguments were far more cognizable than they were being given credit for. The simple fact is the Commerce Clause power claimed by Congress in enacting the individual mandate truly is immense in scope, – every man, woman and child in the United States – and nature – compelled purchase of a product from private corporate interests. Despite all the clucking and tut tutting, there really never has been anything like it before. The Supreme Court Justices thought so too.

I have no idea what kind of blindered hubris led those on the left to believe the Roberts Court was going to be so welcoming to their arguments, and to be as dismissive of the challengers’ arguments, as was the case. Yes, cases such as Raich and Wickard established Congress could regulate interstate commerce and Morrison and Lopez established there were limits to said power. But, no, none of them directly, much less conclusively, established this kind of breathtaking power grant as kosher against every individual in the country.

Despite the grumbling of so many commentators that the law was clear cut, and definitively Read more →

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America, the Dystopian Reality Show: Pink Slime Edition

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When The Decline and Fall of the American Empire is written, I hope the historian writing it is astute enough to notice that the same week our nation’s highest court spent deciding whether the government could legally offer (badly conceived) health insurance reform, the business community was fighting to sustain a market for pink slime.

Pink slime arose as a typically American response to industrialization. After Jack in the Box killed a bunch of its customers by feeding them E. coli, rather than cleaning up the nation’s industrial meat supply, the food industry instead decided to scrub meat parts with ammonia before mixing it back in with The Beef.

But guess what? If you tell consumers what kind of slime you’re actually feeding them, they’ll stop eating it.

Ammoniated beef has taken a real beating in the media over the past couple years, and now fast-food giants McDonald’s, Taco Bell and Burger King are no longer using it. As veteran journalist Philip Brasher reported over the holidays, the Iowa-based company that manufactures the beef product — at one time used in around 70 percent of American ground beef — has watched sales drop by 25 percent.

Beef Products Inc. uses an innovative process to turn fatty beef trimmings, which used to go mainly into pet food and other byproducts, into hamburger filler. Because the trimmings are at risk for E. coli or Salmonella contamination, the company adds a mixture of ammonia and water (ammonium hydroxide) to kill bacteria. BPI’s process, progressive food safety policies, and state-of-the art system have received numerous food safety awards and the company has never been linked to a foodborne illness.

But when some consumers find out about the treated beef product — dubbed “pink slime” by a U.S. Department of Agriculture microbiologist — they don’t like what they hear and food companies are taking notice.

In 2008, many American eaters were introduced to the product by Food, Inc, the Oscar-nominated documentary, which portrayed the technology as merely masking a symptom of a bigger problem: the industrial meat system. A year later, a New York Times expose questioned whether the ammonium hydroxide process was really delivering on its food safety promise, which is especially critical considering the product is widely used in the National School Lunch Program.

After Krogers and McDonalds both decided they couldn’t continue to sell consumers pink slime anymore, the pink slime company, BPI, shut down a bunch of pink slime factories.

Now a bunch of Governors and other industry-owned hacks have taken to the airwaves to defend pink slime.

Three governors, among them recent presidential candidate Rick Perry of Texas, two lieutenant governors, and the Under Secretary for Food Safety at the U.S. Department of Agriculture all went to bat for Beef Products Inc. in a press conference in South Sioux City, Nebraska Thursday to assure consumers that Lean Finely Textured Beef, now widely known as “pink slime,” is safe and nutritious.

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Arizona Has A New Democratic Senate Candidate!

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Well, okay, Richard Carmona has been formally announced for the race since early November of 2011, but with yesterday’s dropout by the only other major Democratic contender, former state Democratic Party Chair Don Bivens, the field is effectively cleared for Carmona.

Bivens was gracious and indicated clearly he is getting out for party unity:

“The continuing head-to-head competition of our Democratic primary is draining resources that we will need as a Party to win the U.S. Senate race in November,” he wrote in a statement. “While I am confident we would win this primary, the cost and impact on the Party I’ve spent my life fighting for could diminish our chance to achieve the ultimate goal: winning in November.”

Bivens had a stellar third quarter in fundraising, but momentum quickly shifted to former Surgeon General Richard Carmona when he entered the race in November. Carmona had the backing of much of the national Democratic establishment.

In a joint statement with Democratic Senatorial Campaign Committee Chairwoman Patty Murray (Wash.), Senate Majority Leader Harry Reid (D-Nev.) wrote that he was “heartened that Don has decided to focus his time and energy” on President Barack Obama’s re-election and on Carmona’s campaign.

This is actually fairly exciting news here in the desert, as the party, both in state and nationally, can coalesce around Carmona and focus on the necessary effort to insure very conservative Republican Congressman Jeff Flake, the certain nominee for the GOP, does not win. The race is for the seat of the retiring Jon Kyl and, for the first time since Dennis DeConcini left, the Dems have a serious chance of gaining a Senator in Arizona. A goal not only Read more →

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ACA at SCOTUS: Some Thoughts On The Mandate

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As you likely know by now, we stand on the cusp of historic oral arguments this week in the Supreme Court on the Patient Protection and Affordable Care Act (ACA), otherwise popularly known as “Obamacare”. The arguments will occur over three days, for a total of six hours, Monday through Wednesday. Yes, they really are that historic, as Lyle Denniston explains in SCOTUSBlog. The schedule is as follows: Monday: 90 minutes on whether the Anti Injunction Act (AIJA) prevents consideration of a challenge to the individual mandate until it takes effect in 2014; Tuesday: Two hours on the Constitutionality of the individual mandate; and Wednesday: 90 minutes on severability of the main law from the mandate and 60 minutes on state sovereignty concerns of Medicaid reform.

There are two areas of particular interest for me and which really are the meat on the bone of the overall consideration. The first is Monday’s technical argument on the AIJA, which I actually think may be much more in play than most commentators believe, because the Supremes may want to punt the politically sticky part of the case down the road until after the 2012 elections, and the AIJA argument is a ready made vehicle to do just that. Judge Brett Kavanaugh’s dissent in Seven Sky v. Holder explains how that would go should the Supreme beings decide to punt. This is by no means likely, but do not be shocked if it occurs; can kicking down the road is certainly not unknown at SCOTUS on politically sensitive cases.

By far, however, the biggest, and most contentious, kahuna of the healthcare debate is the individual mandate, and that is where I want to focus. The two sides, pro (predominantly liberal left) and con (predominantly conservative right), have been selling their respective wares since before the law was passed and signed by the President. As we truly head into the arguments, however, the pro left have crystallized around a matched pair of articles by Dahlia Lithwick and Linda Greenhouse, and the con right around response pieces by James Taranto and Ed Whelan.

Now this hardly seems like a fair fight, as Taranto has no degree, nor legal training, whatsoever; that said he and Whelan actually lay out the contra to Dahlia and Linda pretty well. Each side effectively accuses the other of being vapid and hollow in argument construct. I will leave aside any vapidity discussion because I think both sides genuinely believe in their positions; as to the hollowness, though, I think both sides are pretty much guilty. Which is understandable, there is simply not a lot of law directly on point with such a sweeping political question as presented by the mandate. “Unprecedented” may be overused in this discussion, but it is not necessarily wrong (no, sorry, Raich v. Gonzales is not that close; it just isn’t).

In short, I think both sides are guilty of puffery as to the quality of legal support for their respective arguments, and I believe both are guilty of trying to pass off effective political posturing as solid legal argument. Certainty is just not there for either side. This is a real controversy, and the Supreme Court has proved it by allotting the, well, almost “unprecedented” amount of time it Read more →

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Rick Scott Just Can’t Stop Shoveling Federal Money to HCA

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The resemblance is . . . striking.

Rick Scott, who remarkably is Florida’s Governor rather than an inmate in the federal prison system, just can’t break out of the behavior that resulted in HCA (where he was CEO) paying a record $1.7 billion in fines to the federal government for Medicare fraud and taking the Fifth Amendment no less than 75 times in a subsequent deposition. Today, we learn that despite apparently no longer owning a significant amount of HCA stock (pdf), Scott’s latest proposal for cutting state funding to hospitals in order to restore funding to education would selectively enrich HCA hospitals while putting in place draconian cuts at public hospitals that provide large amounts of service to the poor and uninsured.

Of course, we knew from even before Scott took office that he planned to punish public hospitals in the state at the expense of private ones (the original Miami Herald article on this topic no longer comes up when searching their site, so one of the multiple online copies is used here):

Florida’s government-owned hospitals will be in the political cross hairs after Tuesday’s inauguration of Rick Scott, once leader of the nation’s largest for-profit hospital chain.

The governor-elect’s transition team has recommended creation of a panel to study whether government-owned hospitals — Miami-Dade’s Jackson Health System among them – are necessary.

So, given that Scott has a history of illegally enriching HCA and that we knew from before he was even sworn into office that he wanted to end public hospitals, this should not be a surprise:

Gov. Rick Scott’s plan to cut about $2 billion in public funding to hospitals that care for the poor is devastating and even ridiculous, say hospital leaders who predict patient care will suffer if it is enacted.

/snip/

But because most Medicaid dollars come from the federal government, the move would free up about $422 million in state tax dollars for education. The rest would be federal matching funds that Florida would lose, said Bruce Rueben, president of the Florida Hospital Association.

Oh that’s just brilliant, isn’t it? Scott wants to lose more than a billion and a half in federal funding just so he can cut hospital funding by a little under half a billion. But those cuts are not administered fairly:

What’s more, he and others say, Scott has structured the cuts in a way that hits hardest at “safety net” hospitals that provide the most care for poor people. Yet a few for-profit hospitals — including some owned by Scott’s former employer Hospital Corporation of America — would actually get more tax funds under his plan.

Tampa General Hospital and All Children’s Hospital in St. Petersburg would each face estimated cuts of more than $70 million, according to the Florida Hospital Association. But three Pinellas HCA hospitals — Largo Medical Center, St. Petersburg General and Northside — would each get a few million more.

The obligatory “I have not seen those numbers” quote from Scott denying that he was aware his plan enriches his old partners in crime is not in the least credible.

Only someone as warped as Rick Scott could come up with the idea that the proper way to fund education is to deny healthcare treatment for the poor while enriching healthcare robber barons. Scott’s plan has not yet been enacted into to law and there are even suggestions that some Republicans in the legislature won’t go along with the plan as structured, so there is a small bit of hope that at least a little bit of sanity can be folded back into Florida’s budgeting plan for next year.

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RomneyCare Didn’t End Medical Bankruptcies

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Surprise surprise. Getting everyone insurance is not enough to eliminate medical bankruptcies. (h/t Susie)

To gauge whether healthcare reform in Massachusetts had eased bankruptcies, the researchers looked at a random sample of Massachusetts bankruptcy filers in July 2009, sending surveys to almost 500 households. They compared their results to national and Massachusetts data collected in 2007, before the Massachusetts reform was implemented in 2008.

They found that while the percentage was down slightly, medical bills still contributed to 52.9% of all bankruptcies in the state. Absolute numbers of medical bankruptcies were up by a third. Total bankruptcies in Massachusetts went up 51% between 2007 and 2009.

Families still faced substantial medical debt, they wrote, because healthcare costs continued to rise.

Who could have known?

Lucky for us we may never get to the point where national health care reform fails to prevent medical bankruptcies, since the TeaPartiers seem intent on crashing our economy but good because they don’t think the US should have to pay for Bush’s unfunded wars.

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BoGlo Proclaims RomneyCare Successful at Transferring Wealth from Consumers to Big Health Care

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Okay, I’m getting ahead of myself.

The central thesis of this Boston Globe article is not, in fact, that RomneyCare effected a wealth transfer from consumers to big health care.

Rather, the article proclaims that RomneyCare “achieved its main goals.” But nowhere in the 4,600+ word article does it treat “ensuring MA residents get access to health care” as one of RomneyCare’s goals. Instead, it reports on RomneyCare’s great success at ensuring MA residents get health insurance. And given the article’s admission that the cost of the program is unsustainable, the distinction is critical.

Particularly given two of the article’s more interesting details. First, there’s this passage, which makes it clear that the health insurance exchanges have done little to lower health insurance costs for small businesses.

What group is most unhappy about the changed health care landscape in Massachusetts?

Small business owners, in a landslide.

“I’d give it an ‘A’ for access and an ‘F’ for cost and small business fairness,’’ said Jon B. Hurst, president of the Retailers Association of Massachusetts. “We were supposed to get rid of the free care pool and get all these young folks insured, and that was going to bring costs down.

“Instead, what we did was a wealth shift from consumers and small businesses to big health care in the state, which is not a surprise given who was pushing the bill all along — the biggest hospital chain and the biggest insurer,’’ Hurst said, referring to Partners HealthCare and Blue Cross Blue Shield of Massachusetts.

Partners, because of its market clout and ability to negotiate higher rates from insurers, has been blamed by some for helping to drive up medical costs. The company has said its prices reflect the complexity of care provided by its physicians and teaching hospitals.

The retailers association surveys of its 3,200 members showed a 15 percent average increase in recent years in insurance premiums — a ruinous long-term trend.

Plans offered to small businesses through the connector offer no greater savings than those in the broader commercial market and are limited to a few smaller insurers, said Hurst.

Dick Powers, spokesman for the connector, said in an e-mail: “The value proposition we bring to the table is the ability for small businesses to easily shop on our website and make apples-to-apples comparisons among the plans.’’ [my emphasis]

Dick Powers sounds an awful lot like Ezra Klein, now backing off the claim that exchanges do anything to lower costs to the consumer. And the problem is one that exists at the national level: sufficient concentration such that the big players can use mandates as an opportunity to jack up costs on captive consumers.

Note too Hurst’s suggestion that part of the problem is that the free care pool has not, as promised, been eliminated. BoGlo admits there’s some funny accounting on this front: while RomneyCare supporters claim the cost of providing care to the uninsured has dropped $236 million or 36%. hospitals and state fine print say it has dropped only around $111 million or 17%.

Has the overhaul reduced, as predicted, the quantity and cost of so-called free care provided at safety-net hospitals and health centers?

Yes, but the numbers are rising again.

Before the new law, the cost of treating the uninsured was $656 million in fiscal 2006, a report by the office of administration and finance says. This year it’s carried on the state’s balance sheet at a projected $420 million, which makes it look like there has been a significant drop in this costly category of care.

But it leaves a false impression.

The Massachusetts Hospital Association says those figures do not reflect all the costs they absorb by treating uninsured patients. The real cost was $70 million more last year and about $120 million more this year, they say.

In the fine print of its budget submissions, the Patrick administration estimated the Health Safety Net fund shortfall, which hospitals must absorb, at between $100 million and $125 million this fiscal year and between $100 million to $150 million next. The shortfall represents the cost of services to the uninsured beyond the available funds in the account, which is largely financed by hospitals and insurers with smaller amounts from the state and federal governments.

The full cost of treating the uninsured, if the hospital group’s estimates are accurate, is more like $540 million this year and $580 million next, and slightly less if the administration’s numbers are on target. In either case, it’s a lot more than the $420 million supporters of the law often point to as evidence of the program’s success.

And the total is growing, for reasons not fully understood, though state officials believe the effects of the weak economy have had a significant impact.

If RomneyCare brought the number of uninsured from 530,000 or 6.4% of MA’s total population down to 120,000 or 1.9% (these numbers don’t add up because BoGlo cites different stats here)–if RomneyCare succeeded in getting three-quarters of the uninsured insurance–then shouldn’t the cost of treating the “uninsured” go down more than 17% (even admitting that the remaining uninsured may have the highest medical costs)?

Or is it possible that some of the confusion arises when hospitals provide free care to those with insurance who can’t afford to pay for necessary care–as we know is the case for a substantial number of MA residents?

Because if that’s the case, then in addition to giving small businesses a mandate but little help in keeping that mandate affordable, RomneyCare also forces people to use their last disposable income to pay insurance companies, while still forcing hospitals to treat those people without full compensation, which in turn means others still have to make up for the hospitals’ shortfall.

Again, I don’t know whether that’s what is going on. I don’t know how MA accounts for the care provided to people who have insurance but can’t afford to pay for health care (remember, though, that the bulk of these people are still just forgoing medically necessary care).

But it seems like so long as you have a mandate but measure success solely by whether or not people have insurance, than you are going to end up with a wealth transfer to big health care without, at the same time, ensuring people can actually get health care.

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