The Gobeille Hail Mary

At first glance, the recent Supreme Court decision in Gobeille v. Liberty Mutual signals an end for state efforts to collect and disseminate de-identified health claims data with the intent of creating more efficient and competitive health care markets.  Years of hard work, collaboration, and progress on behalf of state policymakers & experts now feels like a bona fide Sisyphean effort.

Without getting into to details of the legal basis on the Gobeille case, (indeed, Liberty Mutual using a federal ERISA legal basis is as boring as it is specious), the initial “read” of the decision is that the consumer will just have to continue to muddle through the black abyss that is today’s byzantine healthcare maze.  Why should consumers have any right to know how much their healthcare is costing, argues Liberty Mutual?

The legal basis for the Gobeille ruling isn’t necessarily the pain point here.  In reality, if the vague ERISA language can be cleared up by Congress it is likely the states will have another bite at the apple.  No one is holding their breathe as to when that will happen, so consumers really need to speak up.

The true pain point, the pain point that has those knowledgeable enough about the case seething, involves the players.  Liberty Mutual, a self-funded company, contracts to Blue Cross Blue Shield of Massachusetts (BCBS) to administer the health claims for its 80,000 employees.  Less than 100 of those employees work in Vermont, one of over 18 states working on or that have already implemented state-based all payer claims databases.  The fact is, BCBS already submits claims to various state all payer claims databases on behalf of thousands of companies and hundreds of thousands of individuals.  The actual financial burden faced by Liberty Mutual for complying with this law?  Zero.  Well, in reality, they were not even forced to quantify the amount given this was a technical legal interpretation of ERISA pre-empting state laws.  But the dirty secret here, folks, is Liberty Mutual argued the case all the way to the Supreme Court for no good self-serving financial reason.  But there MUST be a reason.

It is time to call it what it is


We’ve been taken back to the woodshed enough.  Sometimes you just need to be politically incorrect and actually speak what you believe is the plain and simple truth.  Take a look at Liberty Mutual’s board of directors lineup.  Any names pop off the page?  Do any directors have ties to BCBS of Massachusetts?   Do you think Liberty Mutual and Blue Cross have luxury boxes near each other at Fenway?  Suppose there is a little back scratching that goes on there?  I am not trying to stir up some kind of scandal, but it really is puzzling.  And what’s even more puzzling is why no one seems to care about this.  Are we just too beaten down from the broken political process and special interest groups that own both parties in Washington?  Well the fact is, some government still works reasonably well, such as at the state level.  So consumers need to defend states rights and insist that ERISA shortfalls are addressed.  What’s the alternative?  Wait until healthcare becomes 30% of GDP?
Here is the reality, consumers:  most health insurers don’t care too much about you.  They hate transparency because they don’t want to pass any negotiated savings on to consumers.  So they concoct obfuscated legal grounds like Gobeille as a cover to accomplish their mission of perpetuating the confusion while destroying economic value.  They don’t want Dr. Jones to learn Dr. Smith is receiving 20% more in reimbursement for the same work.  They don’t want to answer calls from entrepreneurial companies looking to pursue value creating opportunities for consumers (trust me on this one).  The list goes on.  They will come up with any backhanded way to keep the consumer in the dark.

We no longer live in the dark ages

But guess what?  The Gobeille decision actually smacks of desperation.  The case is the Hail Mary pass that was released two seconds after the clock expired.  I submit that the convergence of open data, big data, block chain technology and exasperated consumer & provider stakeholders will lead to the disinter-mediation of the middlemen in healthcare by 2024.  This will turn out to be a white swan that should drive much needed productivity growth in our national economy.  It will appear to have come out of nowhere but in reality it will have been borne from the sweat and unrelenting pursuit of progress of free-market policy, a risk-taking private sector, but most of all, necessity.  The next time you enjoy an Uber ride and reflect on how far superior of an experience it is compared to cabs, ask yourself what healthcare could look like.

Last, self-funded companies should continue to direct their administrators to submit claims to state databases because not all self-funded companies are in bed with their insurer.  Self-funded companies cannot afford to be left in the dark about their health costs.  Self-funded companies should DEMAND timely access to cost and utilization records.  And most important, the pending consolidation in the NH health insurance market means self-funded companies, consumers, regulators, and agitators alike must keep a laser focus on cost trends.  I know I will be.

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