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Why is Delaware’s FOIA Process still stuck in the ’70s?

From: Caesar Rodney Institute

In 1977, the Delaware General Assembly adopted Delaware’s Freedom of Information Act (FOIA), stating in the Delaware Code that:

“[I]t is vital in a democratic society that public business be performed in an open and public manner so that our citizens shall have the opportunity to observe the performance of public officials and to monitor the decisions that are made by such officials in formulating and executing public policy; and further, it is vital that citizens have easy access to public records in order that the society remain free and democratic.” (Source: 29 Del. C. § 10001)

I was in high school in 1977 and remembered calling my friends on our landline phone and running the long cord into the closet so I could have some privacy (all phones were landlines back then!). Forty-five years later, the technological world and the state government have changed immensely. Yet, the FOIA process has remained largely unchanged since the 1970s.

In other words, today, thirty years into the internet era, a FOIA request STILL must be made in writing to the appropriate public body – just like in 1977, with the caveat that the form can now be found online. The following is from the AG’s website:

“A FOIA request must be made in writing to the appropriate public body. The State of Delaware has a FOIA request form that may be electronically submitted through an online portal to various state entities.”

Delaware’s Cumbersome FOIA Process

Of course, the written submission is just the start of the process

After submitting a written request, the FOIA government agency can simply delay responding by stating that the request is “voluminous” – a term NOT defined in the Delaware Code. The agency also can claim that the request was not in “sufficient detail,” further delaying or canceling the request. In addition, the agency can ask for significant monetary compensation for “copying charges,” thereby limiting access to public information, especially in historically disenfranchised communities.

In short, there is limited remedy for citizens to gain access to public information from an expansive government bureaucracy. It is so bad that an effort was made in the recent Delaware General Assembly with the introduction of Senate Bill 155 to codify the rights of Delaware citizens to sue the Government in the Delaware Superior Court.

However, with court and attorney fees regularly running in excess of $30,000, this solution seems completely impractical for a Delaware parent who simply wants to know their child’s middle school curriculum.

Solutions Right in Front of Us

Fortunately, in 2022 there are technological solutions right in front of us, but that would require changing Delaware’s government focus from a reactive FOIA program to a forward-looking FOIA program.

Every document created today is created digitally (on the computer), and even documents received by the State as hardcopy can be scanned into a digital format to be on the computer.

The state of Delaware simply needs to post (make available) all public information on its website so that search engine crawlers can index the pages for web searches.

To do this, the State needs:

  • A definition of public information – and this already exists in code;
  • Someone in each department to be in charge of this process – and this already exists in the “FOIA Coordinators”; and
  • An information technology infrastructure to handle the documents – and the State has the $60 million Department of Technology and Information and a website!

With the pieces in place, Delaware’s government should change its paradigm from defensively reacting to requests for public information to progressively ensuring that the words written in 1977 — “citizens shall have the opportunity to observe the performance of public officials and to monitor the[ir] decisions…” – are meaningful.

The “FOIA Coordinator” role should be changed to focus on loading ALL public information onto the State’s website for indexing by search engine crawlers so that the documents are searchable by any citizen at any time, thereby greatly reducing the need for written FOIA requests while creating an open government for every Delawarean.

(Note: There would remain some issues, like internal email exchanges, but by eliminating the broad requests for information, targeted requests become much easier to handle on a case-by-case basis. The AG notes that email requests can be handled by each public body “using reasonable efforts by its own staff.”)

Summary

In the Delaware Attorney General’s training of “FOIA Coordinators,” she lays out the purposes of FOIA:

  • Promote governmental transparency and accountability
  • Inform citizens
  • Make it possible for citizens to observe and monitor the performance of public officials

However, a process created in 1977, when government was smaller, and technology did not exist, no longer achieves these purposes. Despite numerous attempts at tweaking the system, as recently as 2021, FOIA laws are NOT achieving their objectives.

With trust in the government at all-time lows, the Carney Administration and the Delaware state legislature should make it a priority that ALL public information be available and searchable online by default to all Delawareans.

As former U.S. President Barack Obama said in his 2009 address to the nation, Delaware should follow:

“My Administration is committed to creating an unprecedented level of openness in Government. We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government.”

– Barack Obama

New Medicare plan riles state retirees

From: Cape Gazette

Lawsuit aims to block changes

A recent change in Medicare coverage for state retirees has many reconsidering their options as a lawsuit seeks to stop any changes.

Rehoboth Beach resident Gina Scanlon, a former Cape Henlopen School District employee who taught school for 39 years, said she received information in June on the state’s new Medicare plan for state retirees, calling it a nightmare.

“It’s more paperwork,” she said. “A nurse or doctor will have to approve treatment, which could delay treatment. There’s a possibility that someone’s health could be impeded because of the wait.”

In September, Scanlon said, she attended a meeting in Georgetown where state officials touted its new Medicare plan with Highmark Blue Cross Blue Shield – the Freedom Blue PPO Medicare Advantage Plan – also known as the Highmark Advantage Plan.

After the meeting, she said, she realized that some out-of-state doctors, such as those with the Johns Hopkins healthcare system, might not accept Delaware’s new Medicare insurance.

Scanlon said she plans to go with the new plan, instead of opting out, which would mean she would lose prescription benefits.

“I wish they would have asked us whether we would be interested in reducing benefits or other options before deciding on the new plan,” Scanlon said. “The worst thing about this is it was so underhanded and sneaky.”

Others agree.

The new Medicare plan for state retirees is at the center of a 111-page lawsuit filed Sept. 25 in New Castle Superior Court by RiseDelaware Inc., former state Sen. Karen Peterson and Department of Justice retiree Thomas Penoza. RiseDelaware is a nonprofit established “to act as a sentinel on issues involving state healthcare benefits provided for Medicare-eligible Delaware retirees.” Retiring legislator John Kowalko is listed as a director.

“This lawsuit is brought in response to defendants’ spectacular failure to comply with these statutory requirements,” states the lawsuit, which lists defendants Delaware Department of Human Resources Secretary Claire DeMatteis, Office of Management and Budget Secretary Cerron Cade, the Department of Human Resources, the State Employee Benefits Committee and the Division of Statewide Benefits.

“Indeed, defendants have decided to adopt a new regulation that deprives tens of thousands of state retirees over 65 years old of critical healthcare benefits without providing them the required notice, information or opportunity to be heard,” the lawsuit states.

Under state law, the state must provide its roughly 30,000 state retirees with a Medicare supplemental plan, which the state previously provided through a Highmark BCBS plan known as the Medicfill Medicare Supplement Plan.

Under the Medicfill plan, the lawsuit states, retirees were not limited to a specific network of doctors, and they were not required to obtain prior authorization from the insurance company before receiving treatments ordered by their doctors.

Now, the lawsuit states, new rules require doctors and hospitals to abstain from administering tests and treatments unless the insurance company authorizes them.

A State Employee Benefits Committee, chaired by DeMatteis and co-chaired by Cade, met for months to develop the new Medicare plan. While doing so, the lawsuit states, the committee failed to hold public hearings or allow public comment, and did not file notice of the regulation – all in violation of state law.

The lawsuit is asking a judge to rule that the committee violated state law by adopting the new Medicare plan, and to stop the state from implementing it.

“Defendants are like a jet plane racing down the runway with its wings yet to be attached,” the lawsuit states. “Confusingly, they say they have not yet executed a contract that will implement the change to Medicare Advantage.”

Peterson said she has not heard anything from the state, and does not expect to now that the matter is in litigation. She said RiseDelaware plans to hold a rally Wednesday, Oct. 12 on the steps of Legislative Hall.

DeMatteis and Cade declined to comment on the lawsuit.

A GoFundMe account has been created to pay for RiseDelaware’s legal fees and costs, with about $40,000 raised of its $150,000 goal as of Oct. 4.

Delaware’s Healthcare: Profit Over People?

Delaware is missing the mark by a large margin regarding affordable healthcare. Currently, Delaware ranks 5th in the country at healthcare cost per capita at $12,899 and is ranked as the 20th most expensive for health insurance premium costs at $6600 per year. There are several factors that contribute to health care costs, however emerging evidence suggests one large contributing factor is the trend towards reducing competition via the growth of large health institutions who squelch competition in the marketplace.

Since 2012, the percentage of physicians nationwide who work in physician offices has changed from 60.1% to 26.1% as of 2022. This trend increased more rapidly because of the COVID-19 Pandemic. Between 2019-2021 physician employment in hospitals or other corporate entities increased 19%. During that same time, there was a 38% increase in hospital or corporate ownership of physician practices. Many states have limitations on the corporate practice of medicine. This limitation can serve to limit the conflicts of interest that often result in interference of a provider’s judgment due to outside influences (CPOM). Unfortunately, Delaware is not a Corporate Practice of Medicine state thereby facilitating corporate ownership of medical providers. In such ownership situations, providers’ judgment may be clouded by leadership that does not hold patient care as their primary driver for decision making. Often larger hospital and corporate institutions justify their consolidation as a means of reducing costs in health care. However, the evidence seems to point towards the contrary.

Provider consolidation and the resulting in-house referral systems which develop are driving costs of healthcare upward. Several studies have shown a clear link between physician consolidation and increased healthcare costs. The Journal of Health Economics indicates physician charges increased by 14.1% following acquisition. Vertical integration in health care has been proposed as a means of reducing cost. However, it can result in in kickbacks for inappropriate referrals thereby driving up costs.  The Health Care Cost Institute found that the average price for a given service was always higher when performed in a hospital outpatient versus a private office setting.

Provider consolidation is accompanied by promises that the acquisition will allow the entities to work on innovative and improved models of care and with higher patient satisfaction and enhanced clinical outcomes. However, elimination of competition among providers creates incentives to hike prices and removes incentives to create value for patients. Consolidation tends to reduce the quality of care delivered due to disincentive from eliminating competition.

Privately owned physical therapy practices in Delaware are becoming subject to this tidal wave of change. This year Physical Therapists encountered a legislative challenge (SB 245) of their practice act from orthopedic surgeons. Their intent is to remove the prohibition of a physical therapist working in referral for profit employment and partnership circumstances. They purport that orthopedic surgeons owning physical therapy practices will result in newly formed entities that can provide better collaborative care and more innovative models of care thereby reducing costs, enhancing patient satisfaction, and improving patient outcomes. If enacted, SB 245  will result in larger institutions with conflicts of interest owning and controlling most of the outpatient physical therapy in Delaware. The result will be the extinction of privately owned physical therapy practices which will adversely impact the quality of care of this most critical component of the health care system. In many cases, physical therapists determined the functional outcome of individuals who sustain serious injury or surgery. The examining board of physical therapists and athletic trainers got it right in 1983 by inserting language which prohibits physical therapists from working in referral for profit situations due to the conflict of interest that arises. The intent of this provision was to eliminate the clouded judgment that occurs when financial incentives are the foundation for a medical referral.

Rather than focusing on and expanding anti-competitive strategies that only serve to fatten the wallets of those at the top of those entities at the expense of patients, Delaware should focus on creating strategies that facilitate healthy competition among providers thereby eliminating financial incentive for referrals. Replacing financial incentive for medical referrals with a motive that is seeking out the best interest of the patient will result in reduce costs, higher quality care and greater patient satisfaction and trust.

From: Mercatus Center

Certificate-of-Need Laws: How They Affect Healthcare Access, Quality, and Cost

What years of study reveals about the effectiveness of CON programs

Certificate-of-need (CON) laws require healthcare providers to seek permission from state regulators before they offer new services, expand facilities, or invest in technology. While the original hope was that CON laws would restrain healthcare costs, increase healthcare quality, and improve access to care for poor and underserved communities, a large body of academic research suggests that CON laws have instead limited access, degraded quality, and increased cost.

Despite this poor track record, CON laws remain in 35 states and the District of Columbia, keeping millions of Americans from getting the care they need.

Given the evidence from academic research and the experience of states which have undertaken reform, state policymakers who wish to increase patient access to high-quality, lower-cost care would be well advised to eliminate their entire CON programs. Reforming CON laws also represents a valuable step policymakers can take to improve the responsiveness of their healthcare systems in times of crisis. See below for research related to CON laws and the COVID-19 pandemic.

Which States Have Certificate-of-Need Laws?

As of May 2021, 35 states and the District of Columbia required providers to obtain a CON before offering at least one healthcare service. Two additional states, Minnesota and Wisconsin, set numerical caps on certain services such as the total number of hospital beds and nursing home beds. Other states require a CON for ground and air ambulance services, though these laws are often found in transportation statutes, and their effects on health outcomes are not as well studied. Hawaii has the highest number of CON restrictions (28) of any state, with North Carolina (27) and the District of Columbia (25) following close behind. Eleven states have removed all CON laws or caps: California, Colorado, Idaho, Kansas, New Hampshire, North Dakota, Pennsylvania, South Dakota, Texas, Utah, and Wyoming.

Options For Reforming Certificate-of-Need Laws

Many legislators see CON repeal as a common-sense way of improving healthcare in their states. While research shows full repeal is best, there are still ways to make meaningful reform happen even when full repeal is not feasible. Click on one of the reform options below to learn more about it.

If you’d like to schedule a consultation with one of our scholars on CON reform, email our outreach team.

What the Research Says about Certificate-Of-Need Laws

Click on a topic below to learn more about CON laws. You can also visit our 2020 update on the state of CON laws across the country.

 

A Brief History of CON laws

New York was the first state to institute a CON program in 1964, followed by Rhode Island, Maryland, California, and 22 other states over the next 10 years. In 1974, Congress passed the National Health Planning and Resources Development Act, requiring states to implement CON requirements in order to receive funding through certain federal programs. Louisiana was the only state not to implement a CON program during this time. But in 1986—as evidence mounteed that CON laws were failing to control healthcare costs or improve quality or access—the federal government repealed the CON mandate, and many states immediately began retiring their CON programs. Since then, 15 states have done away with their CON regulations. A majority of states still maintain CON programs, however, and vestiges of the National Health Planning and Resources Development Act can be seen in the justifications that state legislatures offer in support of these regulations, despite evidence they are ineffective. Learn more about how CON laws have changed over the past several decades.

Do CON Programs Ensure an Adequate Supply of Healthcare Resources?

No. CON regulation explicitly limits the establishment and expansion of healthcare facilities and is associated with fewer hospitals, ambulatory surgical centers, dialysis clinics, and hospice care facilities. It is also associated with fewer hospital beds and decreased access to medical imaging technologies. Residents of CON states are more likely than residents of non-CON states to travel further to obtain medical services and CON laws favor incumbent hospitals in the market for services.

Sources: Ford and Kaserman (1993); Carlson et al. (2010); Stratmann and Russ (2014); Stratmann and Baker (2017); Stratmann and Koopman (2016)

Do CON Programs Ensure Access to Healthcare for Rural Communities?

No. CON programs are associated with fewer hospitals overall, but also with fewer rural hospitals, rural hospital substitutes, and rural hospice care. Residents of CON states must drive further to obtain care than residents of non-CON states.

Sources: Cutler, Huckman, and Kolstad (2010); Carlson et al. (2010); Stratmann and Koopman (2016)

Do CON Programs Promote High-Quality Healthcare?

Mostly likely not. While early research was mixed, more recent research suggests that deaths from treatable complications following surgery and mortality rates from heart failure, pneumonia, and heart attacks are all significantly higher among hospitals in CON states than hospitals in non-CON states. Also, in states with especially comprehensive CON programs, patients are less likely to rate hospitals highly.

Sources: Stratmann and Wille

(2016)

Do CON Programs Ensure Charity Care for Those Unable to Pay or for Otherwise Underserved Communities?

No. There is no difference in the provision of charity care between states with CON programs and states without them, and CON regulation is associated with greater racial disparities in access to care.

Sources: DeLia et al. (2009); Stratmann and Russ (2014)

Do CON Programs Encourage Appropriate Levels of Hospital Substitutes and Healthcare Alternatives?

No. CON regulations have a disproportionate effect on nonhospital providers of medical imaging services and are associated with 14 percent fewer total ambulatory surgical centers.

Sources: Stratmann and Baker (2017); Stratmann and Koopman (2016)

Do CON Programs Restrain the Cost of Healthcare Services?

No. By limiting supply, CON regulations increase per-unit healthcare costs. Even though CON regulations might reduce overall healthcare spending by reducing the quantity of services that patients consume, the balance of evidence suggests that CON laws actually increase total healthcare spending.

Sources: Bailey (2016); Mitchell

(2016)

Comprehensive Review of the Literature

A comprehensive review of peer-reviewed research by economists and government agencies on the effects of CON laws on quality, cost, and access, published by the Palmetto Promise Institute.

South Carolina’s Certificate Of Need Program: A Comprehensive Review Of The Literature, by Matthew D. Mitchell — March 2022

Mercatus Peer Reviewed Research on CON Laws

A full list of Mercatus peer-reviewed research can be found below. You can also visit our update 2020 Research Update, including links to the latest state data

Research on Access

Barriers to Entry in the Healthcare Markets, by Thomas Stratmann and Matthew C. Baker — August 29, 2017

Entry Regulation and Rural Healthcare: Certificate-of-Need Laws, Ambulatory Surgical Centers, and Community Hospitals, by Thomas Stratmann and Christopher Koopman — February 18, 2016

Are Certificate-of-Need Laws Barriers to Entry? How They Affect Access to MRI, CT, and PET Scans, by Thomas Stratmann and Matthew C. Baker — January 12, 2016

Do Certificate-of-Need Laws Increase Indigent Care? by Thomas Stratmann and Jake Russ — July 15, 2014

Research on Quality

Examining Certificate-of-Need Laws in the Context of the Rural health Crisis, by Thomas Stratmann and Matthew C. Baker — July 29, 2020

Certificate-of-Need Laws and Hospital Quality, by Thomas Stratman and David Wille — September 27, 2016

Research on Cost

Do Certificate-of-Need Laws Limit Spending? by Matthew D. Mitchell — September 29, 2016

Can Health Spending Be Reined In through Supply Constraints? An Evaluation of Certificate-of-Need Laws, by James Bailey — August 1, 2016

Research on the Political Economy of CON Laws

The Effect of Interest Group Pressure on Favorable Regulatory Decisions, by Thomas Stratmann and Steven Monaghan — August 29, 2017

Mercatus Policy Briefs on CON Laws

On COVID-19

Raising the Bar: ICU Beds and Certificates of Need, by Matthew D. Mitchell, Thomas Stratmann, and James Bailey — April 29, 2020

A Fresh Start: How to Address Regulations Suspended during the Coronavirus Crisis, by Matthew D. Mitchell, Patrick McLaughlin, and Adam Thierer — April 15, 2020

First, Do No Harm: Three Ways That Policymakers Can Make It Easier for Healthcare Professionals to Do Their Jobs, by Matthew D. Mitchell — March 25, 2020

On Community Hospitals and Ambulatory Surgery Centers

Data Visualization: The Impact of Certificate-of-Need Laws on Community Hospitals and Ambulatory Surgery Centers, by Thomas Stratmann and Christopher Koopman — March 15, 2016

On Imaging Services

Data Visualization: Impact of Certificate-of-Need Laws on the Provision of Medical Imaging Services, by Thomas Stratmann and Matthew C. Baker — February 24, 2016

On Access to Care

Data Visualization: How State CON Laws Restrict Access to Healthcare, by Christopher Koopman, Thomas Stratmann, and Mohamad Elbarasse — May 13, 2015

Three Prescriptions for States to Improve Healthcare, by Matthew Mitchell, Anna Mills, and Dana Williams — January 15, 2015

Testimonies

Mercatus scholars regularly provide testimony at the state and federal level. If you’d like to invite a Mercatus scholar to provide testimony, please email our outreach team.

Federal Testimony

State Testimony

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Tennessee

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West Virginia

Other Helpful Links and Resources

11 IDEAS TO IMPROVE HEALTHCARE PRICE TRANSPARENCY IN YOUR STATE

From: State Policy Network

Patients need more pricing information to make the best care decision with their provider. It is not about just finding the lowest-cost option, but also the best-value option that is affordable, high quality, and convenient. Patients want and deserve more certainty and predictability, and healthcare price transparency is one area where states can make this reality possible for patients.

First Generation Price Transparency in Healthcare: Build on Federal Price Transparency Progress

1. Codify federal insurer rule.

To safeguard healthcare price transparency advancements made at the federal level and prevent them from another federal administration pulling back on these improvements, similar provisions requiring insurers to post real prices for patients to compare rates on a tool should be codified into state law. Requiring insurers to post real prices for patients at the state level will ensure that patients enjoy these protections regardless of what happens in Washington.

States with model healthcare price transparency laws:

  • Texas passed the closest version to this reform this last session in Section 1662.051 of their state law.
  • Alaska, Tennessee, Massachusetts and Minnesota also have some requirements on their books for insurers to provide price estimates but are not as comprehensive as the federal rules.
  • Nebraska has a voluntary program.
  • Maine has a requirement for small business insurers.
  • Montana has explanation of coverage by insurers for services over $500.

2. Codify federal hospital rule.

To hedge the risk that a federal administration will pull back the 2019 hospital price transparency rule at the request of special interests and to the detriment of patients, similar provisions requiring hospitals to post a machine-readable file of real prices for all items and services should be codified into state law. This would allow patients to compare prices for services like MRIs, outpatient procedures, exams, and more between multiple hospitals.

States with model healthcare price transparency regulations:

  • Providers in Alaska, Maine, Minnesota, and Vermont all have to provide price estimates upon request, including those in a hospital, but most are by request and don’t require posting of prices on a website like the federal rule.
  • In Florida, hospitals must provide price estimates within seven days of the request.
  • Massachusetts has had a robust price transparency law since 2012.
  • Nebraska has a voluntary program.
  • Montana has a floor of price disclosure for services over $500.
  • Rhode Island requires price disclosure for those without insurance or for those with a deductible of $5,000 or more.

Second Generation Price Transparency in Healthcare: Improving the Availability of Prices

3. Robust advanced explanation of benefits (AEOB).

Knowing the prices ahead of time can remove anxiety for patients. Congress took the first step toward this goal by passing something called an Advanced Explanation of Benefits as part of the No Surprises Act. An AEOB requires providers to coordinate with insurers to send patients their estimated out-of-pocket costs ahead of time. This information is helpful, but big hospital systems often manipulate plan designs in negotiation to make themselves look more affordable to patients from an out-of-pocket standpoint, but charge higher rates for the service.

In response, states should build on the AEOB concept and require additional information to be included such as the estimated negotiated rate, the range of rates paid for the same procedure by the insurer in the past, average rates, and information on how a patient could compare prices between care options. This information provides patients with details on where to seek their care and context around pricing.

Which states have AEOB requirements? A few states as listed above have insurer price transparency laws; however, this reform would further protect patients by making price transparency automatic and require more information be provided to patients.

4. Healthcare price transparency at all locations.

The new federal hospital rule only requires hospitals to disclose prices. Patients need to know prices at many care settings to know their options, not just prices at hospitals. States should require or incentivize price disclosure at all state-licensed facilities and practices for which care could be shopped.

Like the hospital rule, this price disclosure should also include the cash or out-of-pocket price. It has been reported that cash prices can be significantly lower than insured rates, and some patients may want to pay that rate instead of using their insurance. Transparency here will also deter exorbitant cash prices that surprise patients.

States with healthcare price transparency regulations beyond hospitals:

  • Providers in Alaska, Maine, Minnesota all have to provide price estimates upon request.
  • Massachusetts has had a robust price transparency law since 2012.
  • California requires disclosure only to uninsured patients.
  • Montana has a floor of price disclosure for services over $500.
  • South Dakota requires healthcare providers—including licensed healthcare facilities, physicians, dentists, and psychologists—to disclose all fees and charges for services or procedures when requested.

5. Ensure implementation of price transparency in healthcare.

Knowing the price of care upfront is the only way to achieve a fully functional marketplace in health care that consistently delivers better quality, more affordable care. States can ensure that patients and small businesses gain full access to transparent pricing by vigorously enforcing transparency requirements.

To signal the importance of price transparency requirements, a state could link compliance to receiving or maintaining the license by which hospitals, provider groups of a certain size, and insurers are able to operate. The state could also decide to link noncompliance with to the state’s recognition of the company’s nonprofit status. This recognition conveys a huge tax advantage—a benefit companies would risk losing if they do not comply with price transparency requirements. Additionally, states could consider linking noncompliance to long-term participation in state employee health plans. At a minimum, noncompliance should trigger a significant financial penalty.

States with model healthcare price transparency requirements:

  • South Dakota links price disclosure when requested to possible disciplinary action by the licensing agency.

6. Give state agencies more tools to enforce price transparency.

Designate the state Division or Department of Insurance or Attorney General as the enforcer of healthcare price transparency laws. Allow these agencies to levy state penalties for enforcement, that could be given back to consumers in the form of a rebate (like they are for the medical loss ratio (MLR)) or contribute it towards a state-run reinsurance program. All state Attorneys General have consumer protection responsibilities that could be utilized to prevent price gouging with more price transparency.

Third Generation Price Transparency in Healthcare: The Next Steps to Building a Better Market

7. Reward public employees with right-to-shop shared savings.

Healthcare prices can vary by hundreds or thousands of dollars for the exact same in-network service or procedure. Paying patients share savings incentives when they choose lower-cost care. This motivates patients to seek value and grants high-value providers a tool to attract more patients. States have flexibility in the way they choose to provide such incentives, including but not limited to gift cards, lower premiums or deductibles, or even cash.

Close to a dozen states are currently running a version of shared savings for public employees. Patient shared savings incentive programs have been shown to save millions for taxpayers and state employees in longer-standing programs like one in Kentucky.

States with model shared savings incentive programs: Connecticut, Florida, Kansas, Kentucky, Maine, Texas, New Hampshire, Utah and Virginia.

8. Expand right-to-shop shared savings to individuals and small business market.

States should ask insurers in the individual and small business markets to offer products that reward patients directly with shared savings for picking a lower-cost, high-value option. Shared savings could be focused on lower-cost care in-network. However, to maximize patient savings, it could also apply to lower-cost, out-of-network options.

The shared savings can come in the form of cash, a Health Savings Account (HSA) contribution, or a deductible or premium reduction. To ensure these incentives to save money are properly aligned with how insurers account for medical spending, the federal insurer price transparency rule already allows insurers to count a shared savings payment as medical spending when calculating the MLR.

States with model right-to-shop shared savings:

  • Maine, Tennessee and Virginia require shared savings for at least a portion of their commercial plans.
  • Florida and Nebraska have voluntary programs.

9. Pay cash for high-value care, get credit toward deductibles to build a market.

States should require insurers to provide in-network credit towards any out-of-pocket responsibility if the patient chooses to see an out-of-network provider that delivers a better deal (e.g., provides care below a certain benchmark such as below average in-network rates). In this circumstance, the patient’s choice saved themselves and insurers money.

Providers often will accept a lower cash rate because they avoid costly administrative expenses. Many lower-cost independent providers have been pushed out of network because they are not part of large health systems. Under the status quo, many patients are overpaying for services.

States with model out-of-network provider credits:

  • Ending network discrimination rewards cost-effective providers and would be modeled off existing laws in Maine and Arizona.
  • New Jersey has a state law that allows price estimates for out-of-network procedures.

10Allow smaller companies to see how their healthcare dollars are spent.

Large companies have the clout and resources to see how their health care dollars are spent. By contrast, small companies are in the dark. As a result, most small companies have no idea if they are getting a good deal, if they should change their plan designs to better serve their employees or buy coverage another way.

States with model healthcare spending laws:

  • To bring some light to pricing for smaller businesses, Texas passed a law that allows an employee welfare benefit plan, plan sponsor, or plan administrator to request 36 months of claims that must be shared within 30 days.
  • States may want to add safeguards to ensure data is properly de-identified, and set a floor for the size of company that can access claims.

11. Ban anti-competitive contracting provisions, including gag clauses on price.

Contracts between healthcare providers and insurers often feature clauses that harm patients. By banning the following practices, states can begin to reverse the process of consolidation in American health care and protect patients from overpaying for care.

  • “All-or-nothing” clauses: Well-known, dominant, and high-cost healthcare systems often require insurance companies to include all their affiliated providers in network, regardless of the criteria used to evaluate the cost or quality of care to set a network. Some systems will take this a step further and also require all affiliated providers to be included in the preferred tier or cost-sharing arrangement, regardless of price or quality. This leads to inflated premiums and lowered quality of care.
  • Most-favored-nation” clauses: Dominant insurance companies prohibit providers from giving other insurance companies more favorable rates and conditions, locking in high rates and creating an anticompetitive cartel. Some less-strict clauses require disclosure of other providers’ rates to enhance bargaining power, which in turn drives rates higher.
  • Group boycotts: Groups of healthcare providers who should normally compete with one another sometimes refuse to individually contract with insurers on a basis other than jointly agreed-upon terms—a classic example of anticompetitive behavior that leaves the public worse off.
  • Pricing blackouts: Some contracts explicitly allow hospital operators to block their pricing information on insurers’ online shopping platforms, preventing transparency for patients and limiting competition. Recent federal regulatory actions provide a basis for eliminating this practice.
  • Gag clauses: Certain contracts prohibit or severely limit providers from disclosing prices or costs to patients or others. At times, this prohibits the disclosure that the up-front cash price would be lower than the fee charged if the service were paid for through insurance—harming patients by forcing them to pay more for the same service.
  • Exclusive contracting provisions: These provisions prevent an insurer from contracting with other competitive providers. They force either the purchaser to buy a product only from one seller or the seller to sell only to one purchaser. By shielding providers from competition, these provisions foster cronyism and misaligned incentives in the healthcare sector and should be prohibited.

States with model bans on anti-competitive provisions:

  • Twenty-two states have some kind of prohibition on “most-favored-nation” clauses, but many only apply to a certain segment of the market.
  • There have been recent bills in Colorado and New York on “all-or-nothing” clauses.

State retirees sue to stop Medicare Advantage plan

From: Town Square Live

Medicare Advantage Kowalko

A group of Delaware state government retirees and pensioners has filed suit against two government officials tasked with implementing a change in their health insurance coverage.

RISE Delaware, an organization formed after state officials announced a plan to transition retirees to a Medicare Advantage program, filed the lawsuit in the Delaware Superior Court.

RISE hopes to stop the transition to the Advantage program, which is set to take place on Jan. 1, 2023.

“I have worked and contributed to Medicare my entire adult life,” said retired state Sen. Karen Peterson, one of the plaintiffs in the lawsuit. “For the state to take my Medicare benefits and give them to Highmark who, in turn, will decide what medical treatments I can get, is totally unacceptable.”

“My doctors should make decisions about my medical care, not an insurance company that increases its profits by denying and delaying treatment,” Peterson said.

Secretary Claire DeMatteis, who leads the state’s Department of Human Resources, and Director Cerron Cade, who heads the Office of Management and Budget, are named as defendants in the suit.

Cade is also co-chair of the State Employee Benefits Committee, the government body that manages employee and retiree benefit coverage.

DeMatteis and Cade declined to comment Wednesday.

The complaint alleges that the State Employee Benefits Committee “quietly adopted a regulation” that will fundamentally change the health care benefits relied upon by Delaware’s retirees, “without following the procedures required for an open government, and without input from those most affected.”

In doing so, the plaintiffs allege, the committee violated the Administrative Procedures Act, which details procedural requirements for government agencies in adopting, amending or appealing regulations.

The plaintiffs say the State Employee Benefits Committee:

  • Did not file the required notice with the Register of Regulations;
  • Did not receive written comments from the public;
  • Did not hold public hearings;
  • Did not allow for at least a 30-day public comment period; and
  • Did not issue findings and conclusions based on information submitted by the public.

“Accordingly, the [State Employee Benefits Committee]’s decision to force Medicare-eligible State retirees into the Medicare Advantage plan is unlawful and cannot be implemented,” the complaint says.

Had the committee complied with the Administrative Procedures Act, “plaintiffs and countless other state retirees would have had an opportunity to object to the reduction of their healthcare benefits and explain why this directive was unwise and dangerous,” the suit says.

RISE also argues that the state’s communications to retirees about the Medicare Advantage plan “have been, at best, confusing and misleading. At worst, the realities of Medicare Advantage have been hidden in the representations made to retirees…”

In an interview with Delaware LIVE News Wednesday, Peterson called the lawsuit “pretty straightforward. The state failed to follow the requirements for open discussion in the adoption of regulations,” she said.

During a Sept. 12 town hall on the issue, DeMatteis said it’s too late to stop the implementation of the new plan.

Peterson disagrees.

“The contract has not been signed, so it’s not too late,” she said.

Outgoing Rep. John Kowalko, D-Newark, who has led the charge against the shift to Medicare Advantage, called the plan “an atrocity to retirees” and accused Gov. John Carney “and his minions [of] a callousness that is almost inhuman.”

“State retirees are not prominent in the hearts and minds of everybody in this administration, as they should be,” Kowalko said. “It’s because now that retirees are done working, the governor says, ‘Move on. Enjoy your future as best you can.’”

In an earlier interview, DeMatteis said the change is being made to alleviate the state’s $10 billion unfunded liability for retiree healthcare. Left unchanged, that liability would likely grow to $31 billion by 2050, she said.

Kowalko’s response is twofold: Retirees will suffer because the state failed to reduce that liability in the past, and the state plans to continue frivolously spending taxpayers’ money on pet projects like expanding Legislative Hall.

“This governor and his predecessors did not fund or even attempt to fund this obligation,” he said. “So they were looking for the path of least resistance to ease that burden and they saw retirees as that path.”

Kowalko believes the plan represents a “privatization of Medicare designed to generate profits for Highmark and others,” he said.

During the town hall, DeMatteis said Highmark Blue Cross Blue Shield “is prepared to and will lose money on this plan,” an announcement that prompted laughter from the audience.

DeMatteis and others noted that the change will align state retirees with health insurance requirements that active employees and public-sector retirees have had for decades.

Kowalko said the government shouldn’t look to for-profit corporations as an example when deciding how to treat its retirees.

“Of course the private sector wants these kinds of plans,” Kowalko said. “They save them and their shareholders money.”

“The difference is that the state made a promise to its retirees. We owe them,” he said. “We are obligated to keep our guarantee in place that their benefits will be there in the future and will not be cut open and dried out and used to generate profit for Highmark.”

RISE launched a GoFundMe to help fund its legal challenge. In two days, the fundraiser collected $13,771. Organizers have a total goal of $150,000.

Peterson said she and others pitched in $7,500 to file the suit, which seeks an expedited resolution.

“Oct. 3 to Oct. 24 is open enrollment,” Peterson said. “We would keep our fingers crossed that, with our request for an expedited procedure, this would be resolved in time for people to still be able to make a decision.”

Ultimately, RISE hopes for a declaratory judgment that DeMatteis and Cade violated the law and failed to execute their duties, and an order halting the implementation of the Medicare Advantage plan.

RISE will hold a rally on Tuesday, Oct. 4 in Wilmington.

The rally, which will be held on the plaza between the Carvel State Office Building and New Castle County Council Building, will begin at 12 p.m.

“It is imperative that we get a big crowd to voice our objections in a loud tone that will be heard in Dover,” an emailed announcement says. “Please be there with your friends, families and neighbors. It is essential to your future.”

Kowalko said he hopes to organize more rallies, preferably in Kent and Sussex Counties.

 

Delaware’s Mix of Businesses has Changed – Regulations Need to Change

From: Caesar Rodney Institute

In the late 1990s, Delaware’s economy was known for the “four C’s” – Chemicals, Chickens, Cars, and Credit Cards, and big business thrived. By 2000, Delaware had 113 business entities across the state that each employed more than 500 people, mainly in those four industries, but then Delaware changed.

The following decade wreaked havoc on three of the C’s – Chemicals, Cars, and Credit Cards – and the most recent decade has not seen any rebound. By 2020, the number of businesses employing more than 500 people had dropped by 22.1% (by 25 companies) to only 88 companies.

During this same time when “big business” shrank its footprint in Delaware, small businesses struggled to gain a footing. In 2000 there were 13,610 businesses with fewer than five employees in Delaware. Today that number is 15,499.

These very small businesses have grown by 13.8%. Similarly, Delaware businesses with less than 50 employees have grown from 22,536 firms to 26,021 firms, an increase of 15.5%.

Despite the last 20 years of a radically shifting employer mix, the state’s regulatory environment continued to expand dramatically.

Today, according to the Mercatus Center at George Mason UniversityDelaware’s 2019 Administrative Code (DAC) “contains 104,562 restrictions and 6.7 million words. It would take an individual about 374 hours-or more than nine weeks-to read the entire DAC. That’s assuming the reader spends 40 hours per week reading and reads at a rate of 300 words per minute.”

To put this into further context, there are almost seven times more regulations than there are Delaware employers with fewer than five employees. Yet, when one of these micro-businesses needs to upgrade an air conditioner or look for expansion space, the full force of these regulations slows and often stops their investment.

In addition, most of Delaware’s regulations are not simply health and safety regulations – but are under the auspices of Delaware’s Department of Natural Resources and Environmental Control (DNREC). While Delaware has 27,334 Health and Safety regulations, DNREC has 30,523 – 11% more than Health and Safety.

While this mismatch in regulations is already stark, Governor Carney had recently introduced Senate Bill 305 (which did not pass out of Committee) and would have empowered DNREC to grow the regulatory burden on small businesses even more than it already has.

At CRI, we want to be clear; we believe that the creation and oversight of regulations for health and safety – including appropriate environmental regulation – are a central role for government.

But, over time, the government continually adds regulations but rarely removes outdated ones. In Delaware’s case, many existing regulations are aimed at businesses that largely no longer exist in the State (e.g., according to the latest report in 2019 by the Mercatus Center, there are almost 21,000 regulations on chemical manufacturing, an industry almost entirely gone from the state). But the army of bureaucrats devoted to these existing regulations still takes taxpayer money from higher priority areas like education and mental health.

Previous CRI analyses have exposed New Castle County’s economy is smaller today than it was twenty years ago and that Delaware’s aging demographics are making economic growth even more problematic in the state.

Regulatory updating can refocus Delaware’s government on what is important to current and future citizens while freeing small businesses from wasting resources on outdated rules which ensnare them in a bureaucratic morass, slowing or even, in the case of New Castle County, stopping economic growth.

We recommend that Governor John Carney sign an executive order mandating that before a new regulation can be addedtwo regulations must be removed. Let’s help Delaware’s small businesses help themselves and their employees.

On rent control, will Minneapolis ever learn from St. Paul?

From: American Experiment

Even after rent control severely reduced housing permits in St. Paul, and pushed some investors to pause housing projects, Minneapolis is considering going in the same direction.

Last year, while St. Paul voters cast a ballot in favor of a specific rent control ordinance, voters in Minneapolis merely gave their City Council power to enact rent control in the future. Now the future is here, and Minneapolis has started the process of getting its own rent control ordinance off the ground.

And there is already some contention about what kind of policy to enact.

For example,

A group of renters and tenant advocates want to see a strong rent control policy in Minneapolis. They believe such a policy would protect renters in crisis, particularly in minority communities.

While others share a different perspective

“I hope that both perspectives – both tenants and landlords – will be reflected because we really need buy-in from everyone,” said Daniel Suitor, a member of the working group.

But after what happened in St. Paul, it is quite puzzling that the possibility of rent control is even on the table. Everything that has happened in St. Paul should be nothing but a lesson that rent control does not work, and that it is not going to work in Minneapolis.

Barely a year in, the City Council in St. Paul is scrambling to make its policy somewhat more accommodating — albeit with some failure. The last thing that Minneapolis should do is follow in the same footsteps. That will not only defy economic reasoning but even basic common sense.

Moreover, besides St. Paul, there are a lot of other cities which have had longer rent control ordinances that could attest to the disastrous effects of rent control. From Cambridge, Massachusetts, all the way to Berlin in Germany, and even closer at home here in St. Paul, the evidence has been the same: rent control does not work and it is bad for the housing supply.

Will Minneapolis avert another St. Paul situation and learn before it is too late? We certainly hope so because the evidence is clear; nothing good comes with rent control.

From: The Hill
FILE – Construction workers build new homes in Philadelphia, Tuesday, April 5, 2022. Low mortgage rates have helped juice the housing market over the past decade, easing the way for borrowers to finance ever-higher home prices. A run-up in rates in recent weeks is threatening to undo that dynamic, setting the stage for a slowdown in home sales this year as the increased borrowing costs reduce would-be buyers’ purchasing power. (AP Photo/Matt Rourke, File)

Story at a glance


  • America’s current housing shortage is not just a consequence of challenges brought on by the coronavirus pandemic.

  • The pandemic’s issues exacerbated decades of underproducing entry-level homes and more than a century’s worth of policy decisions.

  • But experts say there’s a way forward.

America’s current housing shortage is not just a consequence of a global pandemic riddled with supply chain issues. Instead, it is a result of decades of underproducing entry-level homes and more than a century’s worth of policy decisions.

These supply chain issues, labor shortages, increased material costs and rising rents have led to a shortage of at least 1 million homes – though one recent analysis puts U.S. housing underproduction closer to 4 million.

But experts say there is a path forward.

“We’re in this housing crisis, because of a certain set of policy decisions made over decades going back over 100 years, but the good news is this is not an act of nature. It’s not a force of God that we’re missing all of these homes,” Mike Kingsella, CEO of Up For Growth, a housing policy group based in Washington, D.C., told Changing America.

“It’s a result of policy choices that we as a community have made,” said Kingsella, whose organization is focused on solutions to the housing shortage and affordability crisis. “And so, the good news about that is that we can solve this by simply making a different set of policy choices.”

Updating zoning laws

One underlying issue intensifying the housing crisis is existing zoning laws that prevent the construction of multi-family structures in a particular area. Removing these zoning barriers could then lead to further development outside of single-family units, thereby increasing availability while lowering costs.

“There are a lot of people who are stuck where they don’t want to be and have the ability to rent to move into homeownership, but they can’t because those entry level homes are just not there,” Arica Young, associate director of the Bipartisan Policy Center’s Terwilliger Center for Housing, told Changing America.

Restrictive zoning policies based on the idea of NIMBYism — this stands for “not in my backyard,” which refers to residents or homeowners “who oppose new housing development near their homes…particularly denser or more affordable housing” — for fear of hurting surrounding property values created a situation where many major cities across the country were zoned upwards of 70 percent for detached single family homes.

Addressing these zoning restrictions has the potential to transform neighborhoods and grow metros nationwide.

“Tearing down exclusionary zoning, reimagining what is permissible to build particularly in high opportunity neighborhoods for many communities are really critical solutions, particularly those high growth superstar metros that have experienced a lot of job and population growth but have not seen corresponding increases in housing supply,” Kingsella said.

Removing stigmas around manufactured housing

Manufactured housing — units constructed off site before being moved to a property — is another way to increase the housing supply quickly. But shifting away from nontraditional buildings would require an effort to convince surrounding communities of their value.

Young said these innovative solutions come with stigmas and biases, while some cities ban them.

“Encouraging communities to allow for manufactured housing as infill would be great. Cities like Oakland, California have used it for almost 30 years, if not longer, and it’s not the mobile homes that you think of in the past,” Young said.

The main fear, experts say, is that introducing manufactured housing into an area will lower existing property. But Young said this would not be the case.

“These are built to a national standard. They can meet the same quality and safety, quality and safety standards of a stick-built side of a house,” Young added. “And they can mimic traditional architecture now.”

Closing the racial gap

Up for Growth’s analysis noted one of the main driving factors behind housing underproduction is the number of uninhabitable units in areas like Detroit, leaving policymakers to design ways to invest in legacy housing.

One way to achieve this, Kingsella said, is through the bipartisan Neighborhood Homes Investment Act. The federal policy would create an equitable tax credit for developers who acquire derelict homes, fix them up and put them back onto the market. An important provision would ensure the refurbished homes would be listed at affordable prices.

“Building more housing isn’t always the only way to address underproduction leveraging existing, but derelict housing stock can be a really effective solution,” Kingsella said.

“The idea is really to leverage this existing housing to deliver workforce, homes, home ownership opportunities, recognizing the wealth building potential, and the imperative to really close that black versus white homeownership gap that is at the widest point it has been since 1968.”

Invigorate the workforce

The housing shortage is also exacerbated by a depleted workforce. Estimates suggest that the required job growth for the sector is around 740,000 per year. Yet data shows the labor supply falls short by up to 400,000 jobs nationwide per month.

And the workforce is aging, with nearly 9 percent of the industry’s workers aged 20 to 24. Still the data shows a high percentage of available workers are in their prime working age. For growth to continue, it is important to inspire young people to enter the trade, Young said.

“What’s really important is for people to understand, and to get trades back in the schools, and where parents understand that it is a good career. They’re very well-paid positions,” Young said, adding these “are not just good jobs, they’re good careers.”

Workforce development could start early, Young continued. One way to promote creativity that could lead to the industry is by making sure kids are taking wood shop classes in school.

“And a lot of people get their ideas through tinkering and we’re losing that in this generation, where kids are not going in and building a chessboard for themselves or building a little model car,” Young said. “It’s a different way of learning and we’re missing out on reaching kids and using their hands and minds together.”

Moving to Maine to escape high housing prices in New Hampshire

From: The Josiah Bartlett

Two events on opposite ends of the state last week highlighted the central problem with New Hampshire’s housing market.

In Newmarket over the weekend, a group of renters held a demonstration to denounce landlords and protest high rents.

After experiencing a substantial rent increase, one couple said they had to move out of town to find a place where the rent and the quality of the apartment were better matched. 

That place, they said, is New Jersey.

Another protester said she had moved to Maine to find a more reasonable rent.

It’s true that, on average, moving from Rockingham County to Maine will lower one’s rent, as average rents are lower in Maine than in New Hampshire.

Apartmentlist.com puts the average rent for a one-bedroom apartment at $952 in Maine and $1,329 in New Hampshire.

Home prices are lower in Maine too.

The median home price in New Hampshire is about $430,000. 

In Maine, it’s about $350,000.

Maine and New Hampshire have almost identical populations. Maine has 1.34 million people, and New Hampshire has 1.35 million people.

That’s not enough of a difference to create such huge price variations for housing.

Why would prices be so much lower in Maine?

In a word: Supply.

Maine has 101,000 more housing units than New Hampshire does, according to Census Bureau data.

That’s almost exactly as many housing units as exist in Merrimack and Cheshire Counties combined. 

If New Hampshire had 101,000 more housing units, what do you think the effect would be on home prices and rents?

A few days before the Newmarket protest, residents of Keene demonstrated exactly why New Hampshire is suffering from a severe housing shortage that has driven home prices and rents to record levels.

On Wednesday, Keene’s Planning, Licenses and Development Committee recommended unanimously that the city council send back to committee a proposed zoning ordinance that would allow more housing in the city’s rural district, the Keene Sentinel reported.

The city had proposed reducing the minimum lot size in the rural zone from 5 acres to 2. 

That’s right. The City of Keene has a rural zone with a mandatory minimum lot size of five acres. Within that zone, no house may legally be built on any lot smaller than five acres.

This is exactly the kind of government regulation that reduces the housing supply and raises prices. 

Keene officials wanted to do their part to make it less expensive to build single-family homes in large sections of the city. But about 15 people showed up to oppose the ordinance, with many saying it would change the rural character of the City of Keene. 

Spooked city officials promptly moved to withdraw and rework the proposed ordinance.

Meanwhile, prices continue to rise and pressure continues to build for legislative action. Activists are pushing hard for state laws to pre-empt local zoning ordinances or regulate prices.

If local governments don’t take more decisive action to trim regulations that limit housing supply, state-imposed solutions will come. It’s only a matter of time.