The M F N Most Favored Nation Anti-Competitive Clause

The DOJ brought a case in Michigan about this. The department and the state of Michigan alleged that the M F N clauses in Blue Cross Blue Shield of Michigan's contract with hospitals decreased competition amongst health plans. Some clauses required hospitals to charge competitors more than the hospitals charged BC BSM, often by a specified percentage. Employers are unaware a lot of times of how they are being charged more than what might be appropriate.

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Yeah, so while the commercial payer marketplace is completely boring, the reasons it’s boring are not.

Let me walk you through this conversation I have in this healthcare podcast with Jacob Asher, MD.

First, we establish that the relative number of each carrier’s commercial members in California don’t seem to change year over year … and this has been true for years. When you rank order carriers by member count, the song remains the same. It’s Groundhog Day. Here’s a link to the 2022 CHCF (California Health Care Foundation) enrollment almanac, which shows for the large group market, Kaiser has captured and retained just over half of enrollees. Anthem comes in next with 14%, Blue Shield gets 9%, and then bringing up the rear we have UHC, Aetna, Cigna, Centene, and all others in descending order splitting the remaining 21%. Hmmm … intriguing, the whole idea that these relative member counts remain so consistent.

Then Dr. Asher and I dissect what is anybody actually doing to cut into the Kaiser market share or try to grab share from the two blues plans, if anything.

Dr. Jacob Asher was a great guy to have this conversation with. He was a practicing head and neck surgeon with Kaiser Permanente, and then he also served on the Permanente Medical Group Board of Directors.

Then he changed careers and became a full-time health plan chief medical officer for, first, Anthem, then Blue Cross, then Cigna, then UHC (UnitedHealthcare). Now he’s “retired” and reflecting back on unsolved and unaddressed issues within healthcare. And we’ve covered one here: Why is the commercial payer market as boring as it appears to be in California?

Now, after I had this conversation with Dr. Asher, I called up Wendell Potter, who everybody already knows (EP384), and Lauren Vela, who everybody also probably already knows, but she has spent her career at various employer coalitions and now works at a big employer transforming their health benefits (and she lives in California). I learned a few things that really helped me frame my thoughts on some of the issues that surfaced in the conversation that I had with Dr. Asher and that you’ll hear today. So, let’s get to it. Why doesn’t the relative market share of the big payers change year over year in California in the commercial space. May I present six reasons:

1. Everybody I talked to—Dr. Asher, Wendell Potter, Lauren Vela—first thing right out of the gate that practically everybody mentioned is employer inertia. Trying to get an employer to switch carriers is like trying to pull Excalibur from its stone. And right, not so surprising, it’s disruptive and obnoxious for employees and also benefit teams if carriers are switching all the time.

2. EBCs (employee benefit consultants). They have deals with carriers and others, and they also have a lot of power over employers. Listen to the show with AJ Loiacono (EP379) and Paul Holmes (EP397) for more on this.

3. As Wendell Potter put it, “The commercial market is [as a whole] stagnant. No real growth nationally. And in many states, the real money for carriers is not in the self-funded market; so they don’t care much about aggressively competing for market share.” Given that chart that just came out the other day showing the insane relative gross margins that carriers are making on Medicare Advantage patients, which is over double other lines of business … yeah, totally.

4. Just keep this in mind before we barrel into reason #4 here for a stagnant and maybe not exactly competitive market. Kaiser excluded, all of the rest of the California payers have what amounts to largely the same provider network. I’m exaggerating slightly here, but largely the same hospitals, the same consolidated integrated delivery networks.

And one thing that’s pretty clear (not just in California but across the country): Plans who bring the most members get the best prices from these hospitals and other provider organizations. Also, as Dr. Asher mentions in the show today, he never saw an employer buy on quality. Most were far more concerned about discounts. So, right … we have some circular reasoning here or circular logic. The big plans get the best prices, and then, because they have the best prices, they maintain their market share.

But wait … there’s more to this one, and it’s not just big gets you lower prices. Remember from episode 395 with Brennan Bilberry? He talked about the concept of the Most Favored Nation (MFN) anticompetitive clauses in hospital contracts. This concept is also super relevant here for payers as well if you think about it. This MFN Most Favored Nation anticompetitive clause, this is where a big hospital and “big carrier” have a chat … in a back room. The hospital agrees to not give any other carrier a lower price than the “big carrier.”

These MFN clauses are, of course, terrible for competition and plan sponsors and any patient with cost sharing. A lot of states have started to ban, restrict, and limit these clauses.

The DOJ brought a case in Michigan about this, and here’s a great federal government summary of the problem:

“The department and the state of Michigan alleged … that the MFN clauses in [Blue Cross Blue Shield of Michigan’s (BCBSM’s)] contracts with Michigan hospitals decreased competition among health plans. Some … clauses required hospitals to charge competitors more than the hospitals charged BCBSM, often by a specified percentage. Moreover, BCBSM often agreed to raise the prices that it paid hospitals, in part to obtain [the] MFN clauses.”

Oh, hey … I’ll let you raise your price so I can have a Most Favored Nation clause, just as long as I get a lower price, which is higher than it was originally. And this was actually back in 2013. I have no insight at all or knowledge, or I am not suggesting in any way that what was going on in Michigan is going on in California. However, this anticompetitive practice is common enough. If you’re interested in how common, count the lawsuits.

5. Employers are unaware a lot of times of how they are being charged more than what might be appropriate. And they are largely unaware of options other than Blue Cross, United, Cigna, Aetna … the big payers.

6. As Dr. Asher talks about and which I never really thought about, Kaiser doesn’t have Medicaid patients. [Correction: Kaiser does have some Medicaid members—just less than others.] And because their network and hospitals to a large extent are closed, they also don’t have uninsured patients to a large extent. So, no charity care to speak of and, therefore (at least as it is posited), they can be cheaper because they don’t have to cost offset. So, their price advantage has a structure element here that could make it even more untouchable.

So, there’s your six reasons. You can start to see basically all of these things solidify into the same thing. It’s less about trying to get new business and more about locking in the existing business. It’s not really a secret that this market is rock hard. Plans realize that. They realize that the cost of keeping an enrollee is cheaper than acquiring a new enrollee. So, carriers focus sales and marketing efforts on holding on to their existing customers, especially the coveted jumbo accounts.

Interestingly (and I was talking about this with Lauren Vela), the more clinical programs a carrier has deployed for an employer, the more the carrier is locked in there. So, the more the clinical value proposition resonates, the more clinical stuff that gets integrated. Changing plans becomes even more disruptive, and employers are even more likely to remain where they are.

So, there’s more to clinical programs than payers catching themselves a little PMPM (per member per month) something something upcharge recurring revenue or trying to get new business. It’s also locking in customer retention.

Is any of this specific to California? Some of it is—like a lot of the Kaiser stuff—but most, not. Meaning a lot of the country doesn’t exactly have a functioning commercial small group or large group marketplace either.

To a certain extent, it’s no wonder big employers don’t change plans that often. Why would they bother, given probably fairly incremental differences between these big payer carriers? I realize I’m scrambling out on a limb here and making assumptions, but to achieve more than incremental improvements, a BUCA (Blue Cross, United, Cigna, Aetna) would need to invest all kinds of resources into being that shining star. And why would they do that when nobody can take down Kaiser? And for all the reasons that we just talked about, it’s a hard row to hoe to grab new clients.

There’s a lot of ramifications to this, but this show can’t be seven hours long.

You can learn more by connecting with Dr. Asher on LinkedIn.

Jacob Asher, MD, completed a residency in otolaryngology–head and neck surgery at the University of California, San Francisco, after receiving degrees from Brown University and the Boston University School of Medicine. Dr. Asher then practiced as an ENT (ear, nose, and throat) surgeon with Kaiser Permanente in Northern California and also served on the board of directors of The Permanente Medical Group, where he focused on physician compensation reform, member satisfaction initiatives, and retirement benefits.

After transitioning to full-time health plan management, Dr. Asher served as a California commercial market medical director between 2008 and 2022 for Anthem Blue Cross, Cigna, and UnitedHealthcare. In those roles, he supported membership growth and retention in both fully insured and self-funded product lines and promoted value-based reimbursement, including capitation.

He has led utilization management teams, collaborated with internal and external population healthcare advocates, and worked to develop clinical initiatives that sought to achieve the Triple Aim. In his role as the clinical face of the health plan to the local market, he worked with network colleagues on accountable care organization partnerships and hospital and physician contract renewals with integrated pay for performance, supported Obamacare exchange participation, engaged in quality improvement collaboratives, and supported regulatory compliance efforts.

Currently, Dr. Asher is serving as a mentor for the Stanford Master in Medical Informatics program while exploring innovative solutions to healthcare delivery.

10:00 What is the competitive picture of California’s health plans?

11:28 What was everyone doing in order to get market share?

15:07 EP387 with Betsy Seals.

15:22 EP379 with AJ Loiacono and EP397 with Paul Holmes.

15:26 Why is it difficult to take market share?

16:16 Who was Dr. Asher pitching to and why?

18:49 Did employers ever buy plans for quality?

22:43 What does this look like from the payer perspective?

27:01 What improvements have there been to engagement in health plans?

29:07 Have plans gotten better at communicating with employers?

30:38 Why is it hard to compare the Kaiser world to the non-Kaiser world?

33:00 EP390 with Gloria Sachdev, PharmD, and Chris Skisak, PhD.