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King vs. Burwell Decided: Starter Gun Goes Off for Insurer Consolidation

Originally featured on WanthealthcareLLC.com.

In a long awaited decision, the Supreme Court of the United States handed down a 6-3 decision in favor of the administration in King vs. Burwell, a challenge to the legality of subsidies for the poor in the federal health care exchange. I am not a legal scholar, so can’t comment on the legal nuances of the case. Nonetheless, there are big implications to the law standing that even I can understand.

What this effectively means is that one of the biggest remaining legal challenges to the Affordable Care Act has failed. Future efforts will be harder, including the continued drive of Congressional Republicans to repeal and replace the ACA altogether. Most observers believe that reversal of the ACA became substantially less likely with this decision.

Some of those observers are major health plans, who shortly after the decision was handed down, announced mergers with, or acquisitions of, their peers. Aetna has announced a $37 billion purchase of Humana, and Anthem has offered (and had rejected) a $47 billion price for Cigna. The reason for the timing is that these insurers wanted to make certain that their government lines of business were stable prior to purchasing the membership of their cohorts, i.e., there would be no rollback of the millions that got new coverage as the result of the ACA.

In my last post, I discussed the incentives for providers to consolidate with one another, and with payers. The reasons for this aren’t solely or even predominantly due to the ACA, although some say that the ACA accelerated that trend. The main reason, in my opinion, is the same one I cited in the post about provider consolidation: big gets you economies of scale. That is, to build a claims processing system, or a care coordination program, or an advertising campaign for the first customer is enormously expensive. But adding the ten millionth customer? Effectively the cost is zero. Computerization has made that number even closer to zero, as you don’t necessarily even have to hire any more people to process that ten millionth customer’s enrollment or claims, just add a little more cheap computing power. Posts I have been reading since these mergers announcements talk about health insurance becoming a commodity, in which there are scarcely any product differentiators. This leaves only one basis for choosing one company over another: price. This is already the prevailing view on the exchanges, that share is predominantly determined by price, as the offerings don’t differ much between companies.

So overall, is this good or bad for consumers? On the one hand, some say that bigger health plans means less cost per enrollee due to the economies of scale just discussed, and that the mandatory medical loss ratios built into the ACA mean that the savings that result are often passed on to the consumer. Others warn, though, that consolidation reduces competition, and allows oligopolies to raise prices without the threat of being undercut by smaller and hungrier competitors. Providers in particular are loathe to face bigger and bigger insurers, even as they consolidate to gain more market leverage of their own. Time will tell, but the incentives are undeniable: big is in, on the insurer side as well as the provider side, and it’s based on pretty simple economics.

About the Author: Dr. Jay Want is CIVHC's Chief Medical Officer. Contact him at jwant@civhc.org.

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