us-ftc-advocacy-filings-8b3c4d6163efc8b2d687ec928e37a7ed•FTC Staff Comment Before the Health Systems Agency of New York Concerning its Draft Medical Facilities Plan
FTC Staff Comment Before the Health Systems Agency of New York Concerning its Draft Medical Facilities Plan
us-ftc-advocacy-filings-8b3c4d6163efc8b2d687ec928e37a7edFTC Staff Comment Before the Health Systems Agency of New York Concerning its Draft Medical Facilities PlanAdvocacy Filing
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UNITED ST Ans OF AMERICA
FEDERAL TRADE COMMISSION
WASHINGTON. D.C. 2O~SO
Health Systems Agency of New York City
275 Seventh Avenue
New York, New York 10001
COMM'SSIO~
APPROVED
February 9. 1987 (Jf
~7
~SS
Attention: Mr. Giri Vuppala
Assistant Director, Planning and Implementation
Dear Mr. Vuppala:
The Federal ~rade Commission's Bureaus of Competition,
Consumer Protection, and Economics are pleasen to submit this
response to the request of the Health Systems Agency of New York
City (nHSA") for pUblic comment on its draft Medical Facilities
Plan ("Draft MFP"). 1/ Our comments address recommendations in
the Draft MFP that some acute care hospitals in New York City be
closed.or converted to non-acute care uses, and that some acute
care beds at many other hospitals in New York City be delicensed,
in order to eliminate substantial -amounts of bed capacity not
"needed" under health planning standards. Those recommendations,
if adopted, would be implemented by 1990 through the state
certificate of need ("CON") regulatory process. In our view,
their implementation would be contrary to the interests of health
care consumers in New York City.
Our response is divided into two principal parts. First, we
express concern about the competitive implications of regulatory
reductions of medical/surgical hospital bed capacity of the
magnitude proposed in the Draft MFP. Such reductions would
substantially reduce the incentives for hospitals in New York
City to improve the price and quality of their services. 1/
Second, we urge the HSA to recognize that recent changes in the
health care financing system have reduced incentives for
hOSpitals to maintain excessive bed capacity. Careful
consideration should therefore be given to relying on the
1/
1/
These comments represent the views of the Bureaus of
Competition, Consumer Protection, and Economics of the Federal
Trade Commission, and do not necessarily represent the views
of the Commission or of any individual Commissioner. However,
the Commission has authorized their submission.
,
While our comments focus on recommendations relati~g to
medical/surgical beds (the licensure classification of most
acute care hospital beds in New York City, and of most of the
beds the Draft MFP recommends be eliminated), some points we
raise may also apply to recommendations in the Draft MFP for
reductions in maternity and pediatric bed capacity.
Mr. Giri Vuppala Page 2 hospitals themselves, rather than government res~lation, to determine appropriate capacity levels. 2/ Interest and Experience of the Federal Tra:e Commission For more than a decade, the Federal Trade Commission has engaged in extensive efforts to preserve and prccote competition in health care markets. We have been active bot~ in antitrust law enforcement and in advocacy of regulatory reforms, in the belief that competition in health care service ~arkets, like other markets, will benefit consumers by strengthening incentives for providers to meet consumer needs. The Co~ission's efforts in the health care field have placed particular emphasis on the hospital industry. As a result of Commission a~titrust enforce- ment efforts in that industry (including litigated cases and non- pUblic investigations involving hospital markets in many different areas of the United States), as well as economic analyses of CON regulation ii, the.Commission's staff has gained considerable experience with the economics of hos~ital competition, and with how health planning regulatlon affects such competition. We believe we can offer a valuable perspective on the proposals before the HSA by drawing upon that experience. 'The Desirability of Retaining Some "Unneeded" Medical/Surgical Bed Capacity Implementation of the Draft MFP's hospital ~d reduction recommendations, which are based on a target occupancy rate of 90%, would eliminate so many medical/surgical hospital beds in New York City that the remaining beds would be operating, for all practical purposes, at or near capacity. As a :esult, we believe local hospitals will have substantially diministed incentives to atiract additional patients by improving the price and quality of their services. These considerations counsel against forcing 1/ Because the points we raise apply generally to New York state poli~y regarding reductions of hospital bed capacity, we are sendlng a copy of these comments to Brian H~idricks, Office of Health Systems Management, New York State Department of Health, for consideration respectihg state-level policy. See, ~, Hospital Corp. of America, 106 F.'!'.C. 361 (1985), arI'd; 1986-2 Trade Cas. (CCH) , 67,377 (7tt Cir. 1986); American Medical Int'l, Inc., 104 F.T.C. 1 ( 984); K. Anderson & D. Kass,Certificate of Need Regu ation of Entry Into Home Health Care (Jan. 1986) (FTC staff report).
Mr. Giri Vuppala Page 3
hospitals in New York City to eliminate medical/surgical bed
capacity deemed "unneeded" by the HSA that the market would
otherwise support.
The vigor of hospitals' efforts to lower the price, and
improve the quality, of inpatient care depends heavily on the
motivation and ability of hospitals to increase their market
shares at the expense of other hospitals by offering attractive
combinations of price 2/ and quality. Hospitals that perform
well will be rewarded by increased inpatient business, and
hospitals that fall short of the norm will anticipate that other
hospitals will compete away many of their patients.
The Draft MFP recommends a reduction by 1990 of more than
16% in the supply of medical/surgical beds in New York City
hospitpls. The amount of medical/surgical bed capacity that
would remain after those reductions would be that which the HSA
estimates to be "needed" to accommodate the demand for inpatient
care it projects for 1990 -- a level of demand which the HSA
expects to be sUbstantially less than existing levels of
inpatient hospital utilization -- at an average occupancy rate of
90%. ~/
, It is likely that, for all practical purposes, hospital
medical/surgical facilities operating at such high occupancy
rates would be full, or close to full, and not especially eager
to seek additional patients. For a variety of reasons (including,
21 t While state hospital rate regulation places upper limits on
what hospitals can charge, hospitals remain free to compete
against others by setting rates below what the state would
allow, and by reducing charges to the third party payors
entitled under rate regulation to negotiate discounts from
standard charges.
~/ See Draft MFP at A52-A53; Health Systems Agency of New York
City, Acute Care Bed Needs Methodology (709.2) Update (March
19, 1986) at 1-17 ("Bed Needs Methodology Update") (earlier
estimate of beds "needed" to meet ,1990 demand, with dis-
cussion of various factors HSA expects to reduce demand from
present levels).
We note that capacity deemed "unneeded" by health planning
standards is not necessarily "excess capacity· in the
economic sense. As we discuss below, "unneeded" capacity may
sometimes serve an economically useful purpose. .
Mr. Giri Vuppala Page 4 among others, the need to hold capacity in reserve to accommodate fluctuations in demand for inpatient care), acut~ care hospitals cannot comfortably operate at average occupancy rates of 100%. 7/ Well before a hospital's average occupancy rate reaches that - level, its efforts to compete aggressively for new patients to fill empty beds will yield less and less net income. The hospital will more frequently have to turn away patients ~/, making the hospital's efforts to attract patients fruitless, and inconveniencing the patients' physicians by forcing them to use other hospitals. ~/ Information we have received in connection with our cases and non-public investigations in the hospital industry (including interviews with hospital officials and hospital planning documents) suggests that hospitals in New York City generally would become markedly less aggressive in their efforts to attract new patients by lowering price and improving quality, once their average occupancy rates climb to around 90%, the HSA's target occupancy rate for medical/surgical beds. The competitive efforts of hospitals in New York City, such as intensified marketing campaigns and efforts to negotiate 1/ See Joskow, The Effects of Competition and Regulation on HOSoital Bed SupplY and the Reservation Quality of the Hospital, 11 Bell J. Econ. 421 (1980); P. Joskow, Controlling Hospital Costs 49-55 (1981). ~/. In other industries, the absence of unused capacity does not necessarily diminish competitive incentives, because capacity can be expanded to meet demand. CON regulation in New York, 'however, appears to preclude that option here. Also, capacity tconservation techniques such as reducing usage of inpatient treatment in favor of outpatient care, and reducing average lengths of stay, have already been incorporated into the HSA's 1990 bed need estimates and thus are not available to further reduce utilization to solve the capacity constraints on increased patient loads. 1/ A hospital that must frequently turn away patients may have difficulty attracting physicians who would like to concen- trate their admissions at one hospital. We understand there may be other problems with operating at high occupancy rates t~at also make it unattractive to operate near 100% occupancY,on a regular basis. For exampl~, placing male and female patlents, and smokers and non- smokers, in different semi-private rooms may sometim~s be difficult when few rooms have unused beds and the male/female or smoker/non-smoker ratio differs from the norm.
Mr. Giri Vuppala Page 5 affiliations with health maintenance organizatio~s (RHMOs·), started becoming more and more conspicuous as av~:age hospital occupancy rates fell from their historical levels of around 90\ to their present levels of about 82%. 10/ With ~any hospitals' medical/surgical beds. now running at below 90% oc~upancy, and some running at much lower occupancy rates, a hos?ital whose performance falls behind its peers runs the substantial risk of losing patients. In other hospital markets (incl~ding some that were the subjects of our investigations), these incentives appear to have had a significantly positive effect on t~e responsiveness of hosoitals to consumer needs. 11/ It is unfortJnate that just as lively-competition seems to be eStablishing a foc:~old in the New York City hospital market, the HSA's staff is re~~mmending elimination of the unused hospital bed capacity t~at appears to be an important contributing factor. We are particularly troubled that the Draft MFP's hosoital bed reduction proposals could hamper the growth of HMOs. The rate of development and growth of HMOs is likely :0 be aff~cted by how well HMOs can exploit competition in hospi:al markets to reduce their costs relative to the costs incurrec ~v other third party payors. For example, HMOs can use their p~rchasing power and their ability to channel patients to the ~ost cost-effective providers to economize on hospital costs by, among other means, seeking discounts and other preferential terms from hospitals (such as hospital assistance to HMO utilization review ?rograms). 12/ 10/ See New York Times, Oct. 6, 1986, at 04: Draft MFP at A13. "Notably, New York City's average hospital occJpancy rate !rernains substantially higher than the national average. See American Hospital Ass'n, Hospital Statistics (1986 ed.) at:Vii. 11/ For example, in some metropolitan hospital markets with which we are familiar, levels of unused hospit~l ca?acity somewhat higher than those prevailing in New York City have helped some third-party payors negotiate preferential reim~ursement arrangements yielding the equivalent of discounts from standard charges in exceS5 of 40%. 12/ See, e.s., P. Fox, Lewin & Associates, Private Health Care -- Initiatlves: A Case Study of the Denver Area (June 1983) • Notably, HMOs (unlike other pri?ate third-party payors, except for Blue Cross) are permltted under New York's hospital rate regulation system to negotiate preferential reimbursement rates .for hospital services provided to their subscribers. See N.Y. Pub. Health Law ~ 2807-a(3) (McKinney Supp. 1986).
Mr. Giri Vuppala Page 6 Such economies can, in turn, help HMOs expand the:: memberships by enabling them to reduce subscri~er premiums. 13/ We believe the impact of the proposed bed re~uctions on HMOs merits special concern, because HMOs often playa significant role in promoting well-functioning health care ma:<ets, in addition to b~nefitting their subscribers throuc~ more economical use of health resources. 14/ Moreover, the HSA·i:self is relying on the prospect of substantial increases in H~O ~embership in the non-Medicare popufation during the next few years to reduce hos- pital utilization, and thus the "need" for hospi::il be~s. 15/ To the extent that imolementation of the Draft MFP's bed reduction proposals would diminish t~e economies HMOs C3n 3chieve by taki~g advantage of hospital comp~tition, HMO membershi? may not grow -- and hospital utilization may not decline -- as q~ickly as the HSA's staff expects. Paradoxically, then, efforts to reduce the number of empty, "unneeded" hospital beds may inc=eas~ the number of utilized, "n~eded" beds. All of these reasons c~unsel against mandat~:y bed capacity reductions to meet,a 90% occupancy target. Such regulatory reductions would remove desirable incentives tha: encourage hospitals to serve consumers better. The Diminishing Justification for Regulatory Reductions of "Unneeded" Hospital Bed Capacity , The extent to which there are offsetting pu~lic benefits from reducing the amount of unused bed capacity i~ the New York City hospital market has been the subject of vigo:ous debate. For example, the HSA's staff has estimated capital cost savings of about $ 500,000 per ·unneeded" bed that does not have to be replaced, and operating cost savings of up to $ 150,000 per year per ·unneeded" bed taken out of operation. Hospital industry 13/ Cf. American Medical Int'l, Inc., 104 P.T.C. at 45-46, 49 - (1984) (initial decision) (in California duri~g ~arly 1980s, HMOs and self-insured health benefit plans that were able to negotiate preferential hospital rates on competitive basis grew rapidly enough, at the expense. of other third-party payors, to prompt the other payors to support legislation enabling them to also negotiate hospital discounts). 14/ See Hospital Corp. of America, 106 F.T.C. at 480. 15/ Bed Needs Methodology Update at 11, 15 (proje=ting increase in HMO membership to 30% of adult non-Medicare population by 1990) .
Mr. Giri Vuppala Page 7 participants have disputed these claimed cost savings, parti- cularly respecting operating costs. 16/ We are nQt in a position to contribute ~ubsta~tially to resolving disputes of this tyoe. However, we ques:ion whet~er it is wort~w~ile for the HSA to second-guess hospitals' deter- mina:ions as to the costs and ~enefits of maintai~ing hospital bed capacity. Market forces are generally far superior to the decisior.s of government planners for allocating ~o~iety's resourc~s, and should be allowed to operate absent demonstrable market failures that prevent competitive forces from operating well. Thus, the HSA should consider the effects of ongoing i~provements in the health care financing system, including prospective payment mechanisms and prospects for greater price competition. These improvements are eliminating t~e feature5 of the ho~pital market (e.g., reimbursement system incentives for hospitals to maintain more bed capacity than econo~ically justified) that may have indicated-a need for CON regulation of hospital bed supply in the past. To toe extent t~ese features have been eliminated, maintaining whatever "unneeded" bed capacity the market would support may be presumed to create more benefits (including those outlined above) than costs. We believe that the HSA and state health planners should accord more deference than they have in the past to hospitals' determinations as to the "public need" for whatever unused capaci:y they may choose to maintain. At one time it was generally believed that t~e prevailing me~hods of reimbursement for hospital care (under which the revenues a hospital received for treating patients were hased on costs incurred by the hospital) resulted in incentives favoring (or- at least in a lack of incentives o~posing) overinvestment in capital assets at the expense of third party payors. Under those circumstances, CON regulation of bed capacity was ~onsidered necessary to counter hospitals' tendency to build and maintain more capacity than was necessary to serve their patients. The Draft MFP summarizes the trend toward reforms in health care reimbursement that are eliminating those incentives for inefficient health resources usage. 17/ Most prominent of the new reimbursement systems aimed at elLlminating incentives to waste is the Medicare DRG (diagnosis related group) prospective reimbursement system, which pays oper~ting expenses for hospital 16/ See "14% cut in ~.Y. hospital beds urged,· Modern Healthcare, - Jan. 2, 1987, at 11. 17/ Draft MFP at A7-A9.
Mr. Giri Vuppala Page 8
care of Medicare patients 18/ at predetermined flat rates not
linked to the specific costs a particular hospital incurs.
Hospital capital expenditures will likely be reimb~rsed on a
similar basis in the near future. 19/ The Draft MFP suggests
that New York's prospective reimbursement hospital rate
regulation system, which governs charges for all other payors
except HMOs, is also evolving in the same direction. 20/ The
salient characteristic of these reimbursement syste~s-rs that
they reduce or elLminate incentives to maintain inefficiently
high levels of unused bed capacity by reducing or ~liminating
providers' ability to shift elsewhere the costs of inefficiencies.
This effect may well be reinforced by increased price
competition among hospitals in New York City. Suc~ price
competition may be stimulated by HMOs (which, as discussed
earlier, 'are expected by the HSA to cover an increasingly large
percentage of the local population, and which are well-positioned
to channel subscribers to hospitals 'offering lower rates),
preferred provider organizations (~hich are similarly able to
direct patients toward cost-effective hospitals), and improve-
ments in conventional health benefit plans to provide subscribers
financial incentives (such as copayments) to channel themselves
toward economical, and away from profligate, providers. 21/
It should be emphasized that prospective reforms (e.g.,
elimination of cost-based reimbursement of capital costs under
state hospital rate regulation) reinforce the improved incentives
arising from reforms that have been or are being implemented.
The strong likelihood that any incentives toward inefficiency
that now remain will be eliminated should deter providers from
maki~g long-lived capital investments whos~ financial feasibility
181 Medicare patients account for about half the medicall
surgical patient days in New York City hospitals. See Bed
Need Methodology Update at 6.
191 Draft !{FP at A6, A8: see also, e.q., "Lawmakers mull capital
payment plans," Modern Healthcare, August 1, 1986, at 20:
·HHS' capital plan arouses provider anxieties,· Hospitals,
June 20, 1986, at 24 (legislative debate on Medicare pro-
spective reimbursement of hospital tosts focusing on how, not
whether, that should be implemented).
20/ Draft MFP at A6-A8.
211 Suora p. 5: Draft MFP at A8-A9, A14, AI?: see also, e.g.,
"Hospital industry price wars heat up," Hosoitals, Oct. 1,
1985, at 59: Hospital Corp. of America, l06~F.1.C. at 480-82.
Mr. Giri Vuppala Page 9 depenjs on shifting costs to third party payors. 22/ And it seems unlikely that providers still harboring s~~~illusions will find support in the bond market for implementatiQn of their plans. 23/ If the "market failure" underlying the need for CON regulation of hospital bed capacity has been or is being remedied, there is less reason to presu~e that h~spitals' decisions respecting unused capacity will be economically in- correct. A hospital unable to shift capital or Qperating cost inefficiencies onto third parties will presumably not maintain unused, or rarely-used, bed capacity unless it -~ll ena~le the hospital to earn future patient revenues sufficient to cover the costs of maintaining the capacity. And if the hospital's judg- ment proves to be faulty, the hospital -- not t~e government, and not third party payors -- will bear the burden c: its error. 24/ Indeed; the Draft MFP indicates that some of the ·unneeded" bed capacity it has targeted for elimination is unli~ely to survive in the present reimbursement environment, with or without regulatory action, for these reasons. While we believe the maintenance of at le3st som~ "unneeded" bed cap3citv that the market would SU?Dort would serve' consumer interests, we do not sugqest conserving "unneeded" hospital facilities that would require public s~~sidies to survive, or that the hospitals believe would be more profitably used for purposes other than providing acute care hospit3liza- tion. It seems entirely appropriate for the HSA to facilitate th~ voluntary exit of hospitals and hospit3l beds from the acute care sector of the health care industry (s~ch as by advising hospitals on possible alternative uses for their I 22/ Cf. Raske, "Assn. seeks sound capital pay p~licy," Modern Healthcare, Nov. 7, 1986 at 120 (uncertainty about future of reimbursement for capital expenses encouragi~g hospitals to make more conservative capital investment decisions for inpatient services). 23/ See Draft MFP at A6 (prediction that mortgage financing will -- be difficult or impossible to obtain for many hospital modernization projects as result of prospect of severe li~its on future reimbursement of hospital capital costs) • 24/ This may not be true, however, if the hospit3l is depending on subsidies from outside the reimbursement system (such as lo~n quarantees or operating subsidies from the state fund for financially-distresse~ facilities) to maintain arguably "unneeo~d" capacity the market would not otherwise support.
Mr. Giri Vuppala Page 10
facilities, and facilitating state ap~roval of such alternative
uses) •
In summary, the HSA and state health planne~s should
consider whether, in view of recent changes in the reimbursement
environment, hospitals still have substantial incentives to make
economically incorrect decisions to maintain unused bed capacity,
and whether such decisions made by hospitals are a~y less likely
to be correct than the inevitably imperfect decisions made by
government regula~ors. To the extent that such incentives are no
longer substantial, the pUblic interest would best be served by
exercising the discretion available under New Yor~ health
planning statutes and regulations to find "public need" for
whatever level of bed capacity hospit3ls choose t~ maintain.
Conclusion
For th~ foregoing reasons, we urge that 1) t1e HSA's
recomm~ndations to the Department of Health regarding hospital
closures and bed r~ductions take into account the ootential bene-
ficial effects of unused medical/surgical bed capacity; and 2)
the HSA consider whether, in light of the tre~d toward elimi-
nation of reimbursement system incentives to main:ain economi-
cally unjustified hospital bed capacity, hospitals themselv~s can
be relied upon to determine approp~iate capacity levels.
We appreciate this opportunity to comment on the HSA's
proposals. We would be happy to answer any questions you may
have regarding these comments, or provide any other assistance
you .may need.
I Sincerely,
c;r/~~~~I.'
~{~~~. zucllrman
Bureau of Competition
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