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Robert A. Berenson
ABSTRACT Faced with declining payment rates, California providers have (rberenson@urban.org) is a
implemented various strategies that have strengthened their leverage in senior consulting researcher
at the Center for Studying
negotiating prices with private health plans. When negotiating together, Health System Change and an
Institute Fellow in the Health
hospitals and physicians enhance their already significant bargaining
Policy Center at the Urban
clout. California’s experience is a cautionary tale for national health Institute, both in Washington,
D.C.
reform: It suggests that proposals to promote integrated care through
models such as accountable care organizations (ACOs) could lead to Paul B. Ginsburg is president
of the Center for Studying
higher rates for private payers. Because antitrust policy has proved
Health System Change.
ineffective in curbing most provider strategies that capitalize on
providers’ market power to win higher payments, policy makers need to Nicole Kemper is a former
health research analyst at the
consider approaches including price caps and all-payer rate setting. Center for Studying Health
System Change.
I
n current health reform discussions and tory approaches, including all-payer rate setting,
proposed legislation, providers’ grow- need to be actively considered.
ing market power to negotiate higher On average nationally, commercial insurers’
payment rates from private insurers is hospital and physician payment rates are nearly
the “elephant in the room” that is rarely 30 percent and 20 percent higher, respectively,
mentioned. Here, in our study of the current than Medicare rates.1,2 Evidence from two de-
negotiating environment in California, we ex- cades of hospital mergers and acquisitions na-
plain that growing market power for providers tionally demonstrates that consolidating hospi-
caused a shift that gave providers a stronger tal markets drives up prices, with disagreement
bargaining position over health plans, leading only over the magnitude of the increases.3 Some
in turn to higher insurance premiums. researchers have concluded that formation of
Further, we explore why some of the proposed hospital systems has primarily served to increase
payment reforms and organizational delivery market power—not improve quality or efficiency
models—including so-called accountable care of patient care—at least in the short run.4
organizations (ACOs)—that have been champ- A recent study has shown that in California,
ioned at the national level have the potential after a downward trend in hospital prices for
not only to produce higher quality at lower cost private-pay patients in the 1990s, a rapid upward
but also to exacerbate the trend toward greater trend began about 1999 that produced average
provider market power. Such provider domi- annual increases of 10.6 percent over the period
nance could offset some or all of the potential 1999–2005. The study’s authors concluded that
of reforms to lower premiums through increased the source of the near-doubling of Califor-
efficiency in delivery. nia hospital prices remains “something of a
The trends in California suggest an urgent mystery.”5
need for policy makers to address the issue of Analysis of Medicare Cost Report data by the
growing provider market strength. In our Medicare Payment Advisory Commission (Med-
judgment, more active antitrust enforcement PAC), although national, shows that inpatient
will not do the job. Rather, more direct regula- costs per admission increased only 5.5 percent
per year during that period.6 Public reporting of Here we examine the specific strategies that
hospital payment rates recently has drawn atten- different types of provider organizations have
tion to large variations in hospital rates across developed to increase their leverage in negotiat-
the country, with specific University of Califor- ing payment rates.9 We point out those common
nia medical centers and Sutter Health hospitals, in other parts of the country and those specific
among others, establishing prices far above to California’s “delegated capitation” model of
average.7 care.10 We next describe some of the moderating
Findings from our study of six major California influences that somewhat limit provider pay-
markets are particularly instructive, both be- ment demands. We conclude with a discussion
cause of California’s bellwether status and be- of the relevance of these findings to the current
cause national health reform proposals encom- national health reform debate.
pass features of care as it has been financed,
organized, and delivered in much of California.
In particular, accountable care organizations Study Data And Methods
have organizations common in California as This study draws on site visits by the Center for
their prototypes: multispecialty group practices Studying Health System Change to six California
and independent practice associations (IPAs). markets between October and December 2008.
These contract to receive a monthly per member The goal was to examine regional differences in
(capitated) amount for all or a subset of services health care affordability, access, and quality. The
delivered to enrollees in health maintenance six markets—Fresno, Los Angeles, Oakland/San
organization (HMO) plans.8 Accountable care Francisco, Riverside/San Bernardino, Sacra-
organizations are groupings of providers given mento, and San Diego—were chosen to reflect
financial incentives to deliver efficient, high- a range of economic, demographic, health care
quality care for a population of patients they delivery, and financing conditions in California.
serve. The House and Senate health reform bills Two-member research teams conducted ap-
propose introducing accountable care organiza- proximately 300 semistructured interviews in
tions within the Medicare program, with the the six markets with representatives of hospitals,
presumption that the model will eventually physician organizations, health plans, and
spread to private payers. large employers; benefit consultants; insurance
As the dominant payer for the elderly and dis- brokers; policy makers; and other stakeholders.
abled, Medicare sets prices and is generally in- In each community we interviewed executive
different to providers’ negotiating clout. Private leadership from at least four of the larger hospi-
payers, which must negotiate with all hospitals tals/systems and physician organizations, as
and large physician practices, generally agree to well as representatives of health plans and large
pay much higher rates than Medicare pays to employers; benefit consultants; and insurance
persuade providers to enter into a contract with brokers, to obtain insights and perspectives on
them. the local health care system. Team members
If accountable care organizations lead to more transcribed notes and reviewed them for quality
integrated provider groups that are able to exert and validation purposes. Staff coded interview
market power in negotiations—both by encour- responses using Atlas.ti, a qualitative data man-
aging providers to join organizations and by ex- agement and analysis software tool.
panding the proportion of patients for whom
provider groups can negotiate rates—private in-
surers could wind up paying more, even if care is Study Results
delivered more efficiently. The Legacy of California Managed Care Con-
Lessons from California, then, can inform cur- tracting In the most heavily populated Cali-
rent discussions about whether health delivery fornia markets, physicians formed medical
and payment reforms would reduce the rate of groups and IPAs in the 1980s and 1990s. These
health care spending growth, not only in Medi- measures came largely in response to the pres-
care but overall. Our findings suggest the oppo- ence—and competitive threat—of Kaiser Perma-
site: a definite shift in negotiating strength nente, a prototypical and successful group-
toward providers, resulting in higher payment model HMO. In a parallel development, health
rates and premiums. As one medical group exec- insurers competing with Kaiser Health Plan de-
utive said, “We are making out hand over fist.” In veloped HMO products that typically delegated
some cases, payment rates to hospitals and responsibility for provider network develop-
powerful physician groups approach and exceed ment, physician credentialing, utilization man-
200 percent of what Medicare pays, with annual agement, and quality reporting to medical
negotiated double-digit increases in recent groups and IPAs. The insurers contracted with
years. those groups on the basis of capitation (pay-
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tions (PPOs), has been concerned about pa- to the payers…. These are contracts with big
tients’ loss of access to providers after a contract leverage.”
termination. As a result, it requires plans to have ‘Must-Have’ Hospitals It has become
a formal transition plan approved by the state common in the parlance of health plan–provider
that demonstrates how subscribers’ access to an relations to refer to “must-have” providers—es-
accept- pecially hospitals—that must be included in a
ably broad network will be maintained. Until plan’s provider network to make the plan accept-
approval is received, in an uncertain and poten- able to customers. “Must-have” hospitals, by def-
tially prolonged process, health insurance plans inition, have market leverage over health plans,
must pay full charges to terminated providers. because plans cannot plausibly threaten to ex-
Horizontal Hospital Integration Hospital clude them. Importantly, “must-have” providers’
mergers and acquisitions are not unique to Cal- strong negotiating position is not necessarily
ifornia. However, pressure from managed care derived from size but rather by factors not typ-
may have spurred earlier and more widespread ically part of antitrust analysis. That is, they are
merger activity there than elsewhere. The history “must-have” for reasons other than large mar-
and current hospital responses are well captured ket share.
by a health plan executive with extensive Califor- A common basis for “must-have” status is rep-
nia experience: utation—lodged either in the hospital or physi-
“In California—and northern California in par- cian group overall or with particular hospital
ticular—the hospital system underwent consid- service lines. For example, Los Angeles respond-
erable attrition in the 1990s due to managed care ents agreed that Cedars-Sinai Medical Center is a
constraints [low payment rates] that were placed “must-have.” Asked why Cedars did not engage
on their delivery systems. Hospitals went out of in mergers and acquisitions to become a hori-
business or consolidated. They took on risk and zontally integrated system, as is common in
failed. The number of beds relative to the pop- northern California, a respondent from another
ulation [became] very low. The hospitals are at area hospital suggested that Cedars can say,
full capacity, and a number of them have con- “Screw it; we have a strong marketing arm and
solidated into very powerful systems. They enjoy the [movie] actors, let’s grow on campus and
significant monopoly leverage [the ability to dic- they will come to us.” As a result, according to
tate terms] over all [health insurance] plans.” another respondent, “Cedars has the highest
Sutter Health and Catholic Healthcare West rates in the world…. The hospitals down the
have been especially active in acquiring other street have no market power. They have to fight
California hospitals. Sacramento-based Sutter for every penny.”
Health has two dozen northern California medi- Another source of “must-have” status comes
cal centers and hospitals, some with multiple from providing unique, specialized services,
locations.13 Catholic Healthcare West has thirty- which the hospital then uses to demand and
three acute care hospitals throughout the state.14 win higher rates for all services. In California,
Negotiating as a system across a broad geo- common specialized services include govern-
graphic area avoids antitrust scrutiny, which fo- ment-designated trauma center care, neo-
cuses on local market concentration. At the same natal intensive care, transplants, and specialized
time, this strategy permits hospital systems with cancer care. Major medical centers and even
strong bargaining positions in some markets to smaller community hospitals providing these
negotiate high rates elsewhere as well. Some re- services can often achieve “must-have” status
spondents described particular hospital sys- for all of their services this way.
tems, such as Sutter, as adopting an “all or Provider consolidation has expanded the pro-
none” negotiating strategy, which means that portion of hospitals with “must-have” status. As
a single contract defines the terms. The terms larger hospital systems have formed, systems
include all payment rates of all of the system’s have been able to use the substantial reputation
hospitals, not just those hospitals that plans of the “flagship” hospital to obtain higher pay-
deem important to include in networks. ment rates for all hospitals in the system, includ-
Hospitals in the University of California sys- ing those that would not have such status as
tem now negotiate as a system rather than as independent hospitals. Consolidation is also im-
individual entities. They realized only recently portant to some medical groups’ gaining “must-
that the potential power of group negotiating have” status, such as single-specialty groups with
trumped what some respondents described as a very large share of the market in that specialty
bureaucratic inertia.15 In the words of one uni- in a geographic sub-area.
versity hospital executive participating on the Joint Hospital And Physician-Group Nego-
negotiating committee, “Contracting as a full tiation California retains a “corporate practice
[University of California] system is frightening of medicine” restriction that, with a few excep-
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Moderating Influences
Although many providers have gained the upper Discussion
hand with health plans, we also heard that cer- The shift in who holds the upper hand in nego-
tain factors prompt them to not fully exercise tiating payments—once held by health insurance
their market power. Some providers may balance plans but now resting with health care providers
their desire for high prices with the fragility of —has had a major impact on California premium
employer-sponsored insurance in their com- trends. According to some survey respondents,
munities. As one hospital’s chief financial officer the dynamic needs urgent policy attention. “I am
said, “Things will get so expensive that you’ll shocked there isn’t an outcry over the fact that
drive employers out of the county, or they’ll just our costs are driven out of control,” a health plan
stop offering health insurance.We always have to executive complained. “We would like to estab-
strike that fine balance.” lish some sort of boundary, beyond which these
Insurers agree that some providers effectively guys can’t go. We’d welcome some regulatory
leave money on the table in negotiations—physi- intervention to break up these monopolies,
cians more than hospitals. According to health because they are just killing us.”
plan executives, medical groups in particular are Even some provider respondents are cynical
concerned about the demise of capitation and about providers’ motivation to join or form in-
the replacement of HMO products with PPOs, tegrated practices. Coming from Fresno, an area
blunting their desire to drive as hard a bargain as without the kind of integration seen in other
they could. California markets, a medical-group physician
A uniquely California factor moderating prov- offered, “The good thing about the systems not
iders’ market power is the presence of Kaiser being highly integrated and coordinated [in
Permanente. Non-Kaiser hospitals and physi- Fresno] is that premiums are lower. Why are
cians consider Kaiser’s large market presence those hospitals and physicians [integrating]?
as constraining them from pushing for higher It wasn’t for increased coordination of care, dis-
payment rates, which can lead to higher non- ease management, blah, blah, blah—that was not
Kaiser insurance premiums and a loss of market the primary reason. They wanted more money
share to Kaiser. Given this well-established com- and market share.”
petition, a number of provider respondents As the interviews document, provider market
across the six markets expressed concern that power is not a phenomenon associated just with
employers might shift their employees to Kaiser. integration strategies. A single “must-have”
As a hospital CEO said, “When I came here, I said, hospital can develop enough clout to obtain pay-
‘we can’t leverage managed care companies and ment rates much higher than Medicare’s,
jack up prices and stick on a percent of charges acknowledging that many providers believe
NOTES
1 Medicare Payment Advisory Com- 2007 Oct 17. Available from: http://www
mission. Report to the Congress: 8 Multispecialty group practices are .sutterhealth.org/about/affiliates/
Medicare payment policy. Washing- organizations of physicians of vari- hospitals.html
ton (DC): MedPAC; 2008 Mar. ous specialties that share income 14 Catholic Healthcare West Hospitals.
2 Avalere Health LLC. Appendix 4, from practice. IPAs are intermedi- Interactive map [Internet]. San
supplementary data tables: trends in aries that contract with health plans Francisco (CA): Catholic Healthcare
hospital financing. In: Trendwatch on a risk basis for the services of West; 2009 [cited 2009 Nov 9].
chartbook 2008: trends affecting physicians in independent practices Available from: http://www
hospitals and health systems. Wash- that have, in turn, contracted with .chwhealth.org/CHW_Hospitals/
ington (DC): American Hospital As- the IPA. Interactive_Map/index.htm
sociation; 2008. 9 Providers are able to gain leverage in 15 The University of California (UC)
3 Williams CH, Vogt WB, Town R. How contract negotiations over many system includes five medical centers:
has hospital consolidation affected “terms and conditions,” including UC San Diego, UCLA, UC San Fran-
the price and quality of hospital prices. cisco, UC Davis, and UC Irvine. The
care? Princeton (NJ): Robert Wood 10 California HMOs often contract with first four are in the markets in
Johnson Foundation; 2006 Feb. medical groups or IPAs so that the our study.
4 Cuellar AE, Gertler PJ. How the ex- physician organizations assume risk 16 Federal Trade Commission/Depart-
pansion of hospital systems has af- for use of professional services and ment of Justice. Department of
fected consumers. Health Aff the responsibility for control of us- Justice and Federal Trade Commis-
(Millwood). 2005;24(1):213–9. age is delegated to them. sion statements of antitrust
5 Antwi YA, Gaynor MS, Vogt WB. A 11 Robinson JC. Physician organization enforcement policy in health care.
bargain at twice the price? California in California: crisis and opportunity. Washington (DC): FTC/DOJ;
hospital prices in the new millen- Health Aff (Millwood). 2001;20(4): 1996 Aug.
nium. Cambridge (MA): National 81–96. 17 Casalino LP. The Federal Trade
Bureau of Economic Research; 2009 12 California hospital trends, beds, Commission, clinical integration,
Jul. Working Paper no. 15134. 1999–2007 [Internet]. State Health and the organization of physician
6 Medicare Payment Advisory Com- Facts. Menlo Park (CA): Kaiser practice. J Health Policy Polit. 2006;
mission. Report to the Congress: Family Foundation; 2009 [cited 31(3):569–85.
Medicare payment policy. Figure 2A- 2009 Nov 10]. Available from: 18 Nichols LM, Ginsburg PB, Berenson
7. Washington (DC): MedPAC; http://www.statehealthfacts.kf- RA, Christianson J, Hurley RE. Are
2009 Mar. f.org/profileind.jsp?in- market forces strong enough to
7 Milliman Inc. Cost efficiency at d=396&cat=8&rgn=6 deliver efficient health care systems?
hospital facilities in California: a 13 Sutter Health. Acute care hospitals Confidence is waning. Health Aff
report based on publicly available [Internet]. Sacramento (CA): Sutter (Millwood). 2004;23(2):8–21.
data. Seattle (WA): Milliman Inc.; Health; 2008 [cited 2010 Feb 10].
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