The corporate profit motive & questionable public relations practices during the lead-up to the Affordable Care Act.

• Author: Maher, John N.

1. INTRODUCTION II. SKY-ROCKETING COST, LOSS OF COVERAGE, & BANKRUPTCY A. Extremely High and Rising Costs Overall B. Rising Insurance Premiums, Deductibles, and Out-of-Pocket Expenses C. Rising Costs Hurt the Economy D. Personal Financial Ruin III. HEALTH CARE FINANCING IN THE UNITED STATES A. Signing the Affordable Care Act B. Government Health Care Financing Programs C. Privately-Funded Medical Coverage D. The Underinsured & The Uninsured E. Financing Friction F. Corporate Interests Protected Through Public Relations Tactics G. Unsavory & Apparently Unlawful Public Relations Tactics H. The Challenges A head IV. INSURANCE COMPANY RISK REDUCTION AND RISK AVOIDANCE TACTICS A. Dropping Beneficiaries Who Get Sick B. Padding Profit Through Coverage Denial C. Dr. Linda Peeno 's Testimony Before the House of Representatives V. WIN-AT-ALL-COSTS PUBLIC RELATIONS TACTICS A. What Is Public Relations? B. Misleading Public Relations Tactics C. Specious Third-Party Front Groups D. Contrived Self-Serving Studies E. The Result of the Public Relations Gamesmanship VI. POTENTIAL SOLUTIONS A. Congressional Hearings to Build a Record B. State-Based Licensing of Public Relations Professionals C. There Must Be Disclosure D. Existing Laws VII. CONCLUSION "IT IS A FACT THAT HEALTHY NATIONS ARE WEALTHY NATIONS. ... "(1)

   Excerpt-1: ... This is the fatal flaw. Many of those charged to fund medical care are incentivized, by corporate and fiscal law, to find ways to deny coverage. This enticement has led each of the larger private health insurance companies to implement various morally unsettling, but often licit ways to deny payment based on technicalities and fine print. So doing positions the company to maintain a medical loss ratio in keeping with shareholder and investor expectations, not to mention mammoth executive compensation linked to stock performance. Meanwhile, somewhere else in America, a patient goes untreated even though the technology and the medical resources may be available. Attending physicians are embarrassed, even frustrated or outraged. The patient feels the despair of abandonment. The anxiety and pain family and friends already feel is worsened by the idea that their loved one has been devalued by an anonymous, aloof, and apparently disinterested medical director ensconced in a distant office building overlooking the green fields of Connecticut. Given the importance Americans place on individual rights, freedom, and the inherent value of each life, one would think that those charged to fund medical care would be incentivized by benevolence and good will rather than the bottom line, especially when those in need of care are at their most vulnerable in body and spirit. (2) Excerpt--2: The time is now to clearly identify the extent of these two material problems: the elevation of profit over the financing of care on the one hand, and unchecked corporate duplicity guised as legitimate public relations on the other hand. Solutions must contemplate recalibration of the payment system so that those responsible for payment are motivated to fund medically necessary care rather than deny payment to increase profits. Solutions must equally embrace measures to require public relations firms to disclose the identity of their clients and certify the good faith basis of public claims so that debate about significant issues such as the health of America's citizens is free from disguise and unseemly manipulation. A problem identified is a problem half solved. (3) Until these two problems are taken up, each remains poised to produce high-stakes problems in the future. (4) I.INTRODUCTION

   The purpose of this Article is two-fold: first, to highlight two problems which threaten the effectiveness of the Patient Protection and Affordable Care Act of 2010 (Affordable Care Act), (5) and second, to invite civic and governmental dialogue to implement solutions to those problems. The Affordable Care Act is tailored to build upon what is good about the existing health care financing system in the United States. It is also calculated to maximize access to quality and affordable health care across the Nation. There remains, however, work that must be done to neutralize risks to the foundational requirements of consistency and predictability when it comes to payment for medical care.

   First, for-profit health insurance companies will continue to occupy dominating and influential positions within the reformed framework. Because of legal obligations to shareholders to maximize profits, corporate efforts shall persist to implement cost-saving methods. If the past is prologue, these resource conservation devices will continue to inject inconsistency and unpredictability into whether or not care will be covered. The result is to all but incapacitate the security so indispensible to the legislative and executive intent behind reformed health care. Until America removes the incentive for third-party payors to limit or deny coverage altogether, actually paying for care will remain less important than corporate earnings. As one commentator observed, "[s]o, if the private sector of our health system continues to be dominated by for-profit insurance plans, the industry's well-financed lobby and its political influence will probably prevent any future reform proposals that might threaten its income." (6) It thus appears that payment for care will stay in the back-seat to profit.

   The second problem involves the ease with which private health insurers employ the questionable tactics of public relations practitioners to mislead the public and lawmakers in important fiscal and health matters. Together, they spend millions of dollars to draw from a catalogue of proven schemes to misrepresent the facts to the public and lawmakers intending to secure public dollars for private gain. As discussed more fully below, in the heated debate preceding enactment of Affordable Care Act, this was done on a scale heretofore unseen.

   Presently, there is no enforcement mechanism to compel honesty, fair dealing, and disclosure of the real parties-in-interest in public relations. To date, there has been no penalty for placing untrue sound-bites, discrediting attacks, and self-serving studies in television, radio, Internet, newspaper, and other media for dissemination throughout the country. (7) Likewise, there has been no sanction for providing falsehoods to individual Members of Congress, their staffs, and the Presidential Administration to induce the authorization and appropriation of public dollars for private interest. (8)

   These ploys are more than mere rhetoric. Their falsity coupled with the intent to deceive for private financial gain crosses both moral and legal lines. They are material misrepresentations designed to steer fiscal and policy decisions away from other viable alternatives, i.e., a single-payor system or a public insurance option.

   An old college professor often noted in terms of critical thinking, "[a] problem identified is a problem half-solved." (9) Unless governmental corrective action is taken, health care financing in the United States will never truly get over Mu, that is, the coefficient of friction, (10) between for-profit corporate interest and the moral imperative to care for the Nation's sick. (11) Until states regulate public relations professionals, state and federal disclosure requirements are enacted, and the federal government enforces civil and criminal penalties to protect society from widespread and well-heeled campaigns of deceit, the health insurance industry and its compatriots in public relations remain ready to once more abuse the public trust for their private economic gain.

   Symptomatically, any movement to challenge the health insurance industry's reign will likely be met with the very tactics this type of reform seeks to remediate. Currently, the Secretary of the United States Department of Health and Human Services (HHS) is engaged in extensive administrative rulemaking to implement the new legislation. (12) At the same time, private insurers are using their resources to "reframe the debate" in the hope of securing industry-friendly regulations. (13)

   The economic health of the Nation and the health of its people compel Congress to hold hearings and take appropriate action to prevent public relations abuses from negatively affecting health care, and other industries for that matter, again. When oversight and enforcement measures are in place, the path will be clearer to tackle the fiscal misalignment where those charged with financing health care are incentivized to deny payment to increase profit.

   The balance of this article:

   i. discusses the drivers making American health care the most expensive in the world;

   ii. outlines the patchwork of public and private fiscal arrangements that comprise the American health care financing system;

   iii. reveals the legal means by which private insurance companies reduce or eliminate risk, through rescission, cancellation, coverage denials, and other methods;

   iv. evaluates the behind-the-scenes campaign America's Health Insurance Plans (AHIP), the public relations and lobbying arm of the health insurance industry, waged to thwart reform without exposing its self-serving profit motive;

   v. explains how the Affordable Care Act was enacted despite stiff opposition; and

   vi. concludes with a call to open a dialogue with a view toward focusing efforts to implement solutions, among them:

   a. that Congress conduct hearings to develop the record and take action in light of the unvarnished facts;

   b. that states adopt licensing and enforcement procedures for public relations;

   c. that federal law require public relations practitioners to disclose the real-parties-in-interest who fund spin efforts and certify the good faith basis of claims placed into the media; and

   d. that law enforcement authorities evaluate the suitability of using existing laws to address apparent fraudulent misrepresentations.

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