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Although research suggests that considerable efficiencies can be gained from cloud computing technology, concerns over privacy and security continue to deter government and private-sector firms from migrating to the cloud. By its very nature, storing information or accessing services through remote providers would seem to raise the level of privacy and security risks. But is such apprehension warranted? What are the real security threats posed to individuals, business and government by cloud computing technologies? Do the cost-saving benefits outweigh the dangers?

On October 26, the Brookings Institution hosted a policy forum on the privacy and security challenges raised by cloud computing. Governance Studies Director Darrell West moderated a panel of technology industry experts examining how cloud computing systems can generate innovation and cost savings without sacrificing privacy and security. West will also present findings from his forthcoming paper “Privacy, Security, and Innovation in Cloud Computing.”

After the program, panelists took audience questions.

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Executive Summary

Cloud computing can mean different things to different people, and obviously the privacy and security concerns will differ between a consumer using a public cloud application, a medium-sized enterprise using a customized suite of business applications on a cloud platform, and a government agency with a private cloud for internal database sharing (Whitten, 2010). The shift of each category of user to cloud systems brings a different package of benefits and risks.

What remains constant, though, is the tangible and intangible value that the user seeks to protect. For an individual, the value at risk can range from loss of civil liberties to the contents of bank accounts. For a business, the value runs from core trade secrets to continuity of business operations and public reputation. Much of this is hard to estimate and translate into standard metrics of value (Lev, 2003) The task in this transition is to compare the opportunities of cloud adoption with the risks. The benefits of cloud have been discussed elsewhere, to the individual to the enterprise, and to the government (West, 2010a, 2010b).

This document explores how to think about privacy and security on the cloud. It is not intended to be a catalog of cloud threats (see ENISA (2009) for an example of rigorous exploration of the risks of cloud adoption to specific groups). We frame the set of concerns for the cloud and highlight what is new and what is not. We analyze a set of policy issues that represent systematic concerns deserving the attention of policy-makers. We argue that the weak link in security generally is the human factor and surrounding institutions and incentives matter more than the platform itself. As long as we learn the lessons of past breakdowns, cloud computing has the potential to generate innovation without sacrificing privacy and security (Amoroso, 2006; Benioff, 2009).

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EXECUTIVE SUMMARY

Many web services are examples of cloud computing, from storage and backup sites such as Flickr and Dropbox to online business productivity services such as Google Docs and Salesforce.com. Cloud computing offers a potentially attractive solution to customers keen to acquire computing infrastructure without large up-front investment, particularly in cases where their demand may be variable and unpredictable, as a means of achieving financial savings, productivity improvements and the wider flexibility that accompanies Internet-hosting of data and applications.

The greater flexibility of a cloud computing service as compared with a traditional outsourcing contract may be offset by reduced certainty for the customer in terms of the location of data placed into the cloud and the legal foundations of any contract with the provider. There may be unforeseen costs and risks hidden in the terms and conditions of such services.

This document reports on a detailed survey and analysis of the terms and conditions offered by cloud computing providers.

The survey formed part of the Cloud Legal Project at the Centre for Commercial Law Studies (CCLS), within the School of Law at Queen Mary, University of London, UK. Funded by a donation from Microsoft, but academically independent, the project is examining a wide range of legal and regulatory issues arising from cloud computing. The project's survey of 31 cloud computing contracts from 27 different providers, based on their standard terms of service as offered to customers in the E.U. and U.K., found that many include clauses that could have a significant impact, often negative, on the rights and interests of customers. The ease and convenience with which cloud computing arrangements can be set up may lull customers into overlooking the significant issues that can arise when key data and processes are entrusted to cloud service providers. The main lesson to be drawn from the Cloud Legal Project’s survey is that customers should review the terms and conditions of a cloud service carefully before signing up to it.

The survey found that some contracts, for instance, have clauses disclaiming responsibility for keeping the user’s data secure or intact. Others reserve the right to terminate accounts for apparent lack of use (potentially important if they are used for occasional backup or disaster recovery purposes), for violation of the provider’s Acceptable Use Policy, or indeed for any or no reason at all. Furthermore, whilst some providers promise only to hand over customer data if served with a court order, others state that they will do so on much wider grounds, including it simply being in their own business interests to disclose the data. Cloud providers also often exclude liability for loss of data, or strictly limit the damages that can be claimed against them – damages that might otherwise be substantial if a failure brought down an e-commerce web site.

Although in some U.S. states, in E.U. countries and in various other jurisdictions the validity of such terms may be challenged under consumer protection laws, users of cloud services may face practical obstacles to bringing a claim for data loss or privacy breach against a provider that seems local online but is, in fact, based in another continent. Indeed, service providers usually claim that their contracts are subject to the laws of the place where they have their main place of business. In many cases this is a US state, with a stipulation that any dispute must be heard in the provider’s local courts, regardless of the customer’s location.

Perhaps the most disconcerting discovery of the Cloud Legal Project’s survey was that many providers claimed to be able to amend their contracts unilaterally, simply by posting an updated version on the web. In effect, customers are put on notice to download lengthy and complex contracts, on a regular basis, and to compare them against their own copies of earlier versions to look for changes.

The cloud computing market is still developing rapidly, and potential cloud customers should be aware that there may be a mismatch between their expectations and the reality of cloud providers' service terms, and be alive to the possibility of unexpected changes to the terms.

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While research suggests that considerable efficiencies can be gained from cloud computing technology, concerns over privacy and security continue to deter governments and private-sector firms from migrating to the cloud. Senator Amy Klobuchar (D-Minn.) has advanced discussion of the “Cloud Computing Act of 2011,” draft legislation that would address these challenges by encouraging the U.S. government to negotiate with other countries to establish consistent laws related to online security and cloud computing. The bill also creates new enforcement tools for investigating and prosecuting those who violate online privacy and security laws.

On June 16, the Brookings Institution hosted a forum on the policy proposals in the Cloud Computing Act of 2011. Discussion included an overview of the international policy implications as governments and firms adjust to a coherent legal framework, changes and innovations in public procurement, and challenges for private industry as it balances consumer needs and compliance with these proposed cloud computing safeguards.

After the program, panelists took audience questions.

Transcript

• Uncorrected Transcript (.pdf)

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Listen to the chatter from top officials, and you’d think that World War III was about to break out on the Internet. The defense secretary is warning about a digital “Pearl Harbor.” Former director of national intelligence Mike McConnell declares that the United States is “fighting a cyber war, and we’re losing.” Every new hack brings more pronouncements of network doom.

The scare talk, however, is misplaced. Yes, we’re facing enormous cybersecurity problems — just look at the high-profile penetrations of such companies as Sony and Lockheed or the millions of Americans whose personal information has been stolen online.

But these aren’t signs of some impending cataclysmic showdown as I explain in my new cybersecurity paper for The Brookings Institution. They’re markers of a rising tide of online crime that, in its own way, could be more dangerous than a cyberwar. According to the British government, online thieves, scammers and industrial spies cost U.K. businesses an estimated $43.5 billion in the past year alone. Crooks-for-hire will infect a thousand computers for $7 — that’s how simple it’s become. Sixty thousand new malicious software variants are detected every day. Forget “Pearl Harbor”; if we’re not careful, the Internet could be in danger of looking like the South Bronx circa 1989 – a place where crooks hold such sway that honest people find it hard to live or work there.

Could there be some online conflict in the future? Maybe. But crooks are draining billions from the legitimate global economy right now. Even the Pentagon’s specialists are worried, noting in their new cybersecurity strategy that “the tools and techniques developed by cyber criminals are increasing in sophistication at an incredible rate.”

Those tools also are becoming easier to use. The latest crimeware makes stealing passwords about as simple as setting up Web pages. One gang, recently arrested, used it to drain $9.5 million in just three months.

Read the full article at washingtonpost.com >>

“Missed connections” is the personals ads category for people whose encounters are too fleeting to form any union – a lost-and-found for relationships.  I gave that title to my paper on the conversation between the United States and for Europe on data, privacy, and surveillance because I thought it provides an apt metaphor for the hopes and frustrations on both sides of that conversation.

The United States and Europe are linked by common values and overlapping heritage, an enduring security alliance, and the world’s largest trading relationship.  Europe has become the largest crossroad of the Internet and the transatlantic backbone is the global Internet’s highest capacity route.

[I]

But differences in approaches to the regulation of the privacy of personal information threaten to disrupt the vast flow of information between Europe and the U.S.  These differences have been exacerbated by the Edward Snowden disclosures, especially stories about the PRISM program and eavesdropping on Chancellor Angela Merkel’s cell phone.  The reaction has been profound enough to give momentum to calls for suspension of the “Safe Harbor” agreement that facilitates transfers of data between the U.S. Europe; and Chancellor Merkel, the European Parliament, and other EU leaders who have called for some form of European Internet that would keep data on European citizens inside EU borders.  So it can seem like the U.S. and EU are gazing at each other from trains headed in opposite directions.

My paper went to press before last week’s European Court of Justice ruling that Google must block search results showing that a Spanish citizen had property attached for debt several years ago.  What is most startling about the decision is this information was accurate and had been published in a Spanish newspaper by government mandate but – for these reasons – the newspaper was not obligated to remove the information from its website; nevertheless, Google could be required to remove links to that website from search results in Spain. That is quite different from the way the right to privacy has been applied in America.  The decision’s discussion of search as “profiling” bears out what the paper says about European attitudes toward Google and U.S. Internet companies.  So the decision heightens the differences between the U.S. and Europe.

Nonetheless, it does not have to be so desperate.  In my paper, I look at the issues that have divided the United States and Europe when it comes to data and the things they have in common, the issues currently in play, and some ways the United States can help to steer the conversation in the right direction.

[I] "Europe Emerges as Global Internet Hub," Telegeography, September 18, 2013.

The United States exports digital goods worth hundreds of billions of dollars across the Atlantic each year.  And both Silicon Valley and Hollywood do big business with Europe every year.  Differences in approaches to privacy have always made this relationship unsteady but the Snowden disclosures greatly complicated the prospects of a Transatlantic Trade and Investment Partnership.  In this paper Cameron Kerry examines that politics of transatlantic trade and the critical role that U.S. privacy policy plays in these conversations.

Kerry relies on his experience as the U.S.’s chief international negotiator for privacy and data regulation to provide an overview of key proposals related to privacy and data in Europe.  He addresses the possible development of a European Internet and the current regulatory regime known as Safe Harbor. Kerry argues that America and Europe have different approaches to protecting privacy both which have strengths and weaknesses.

To promote transatlantic trade the United states should:

• Not be defensive about its protection of privacy
• Provide clear information to the worldwide community about American law enforcement surveillance
• Strengthen its own privacy protection
• Focus on the importance of trade to the American and European economies

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Cloud computing is becoming omnipresent in the private sector as companies latch on to this innovation as a way to manage scalability, improve flexibility, and reduce cost. Analysts at IDC predict that, over the next six years, nearly 90 percent of new spending on Internet and communications technology will be on cloud-based platforms. Apple, Google, Amazon, Microsoft, and hundreds of smaller companies are positioning themselves to dominate the estimated $5 trillion worldwide market. While few companies will provide numbers, it is estimated that Amazon and Google may run as many as 10 million servers while Microsoft runs close to one million. In short, it is an innovation that makes a mockery out of Moore’s law.

But, like all innovations, cloud computing has potential pitfalls. Public sector organizations in particular have had difficulty taking advantage of new technologies. The Heritage Foundation keeps a list over 50 examples of government ineptitude including $34 billion in fraudulent Homeland Security contracts, National Institutes of Health renting a lab that it neither needs nor can use for $1.3 million per month, and the Department of Agriculture wasting $2.5 billion in stimulus money on broadband internet. Technological ineptitude received special attention with the failed launch of the Healthcare.gov, the release of classified data from Edward Snowden, and the costly FBI virtual case file debacle.

Cloud computing is far more than just a simple technology change and requires a close examination of governance, sourcing, and security. We sought to understand how well state government is prepared to address the challenges of cloud computing.

The Approach

We have gathered and started to do a content analysis of the IT strategic plans for each state. For each plan, we performed a content analysis, which is looking for certain phrases or text within the IT strategic plan in order to have a structured way to understand the data. Details for our approach can be seen in our previous blog post.

How States Are Implementing the Cloud

We were not surprised to see a number of states preparing to study or embark on cloud computing.

While some states don’t mention it (e.g. Alabama), most states are eagerly exploring it. For example, North Dakota’s plan talks about cloud computing as an integral part of the future and seven of its thirteen major IT initiatives are centered on preparation for transitioning to the cloud “where and when it makes sense”.

Vermont puts itself squarely in the studying period. The plan describes that, “While the risks of enterprise-wide and cloud-based IT must be carefully managed, trends continue to just larger-scale operations.” Wisconsin also clearly lays out its view on cloud computing, writing that, “Flexibility and responsiveness (also) guide Wisconsin’s approach toward adoption of cloud services” and suggests that its version of a private cloud “…offers advanced security and service availability tailored for business needs.” West Virginia provides an equally balanced approach by requiring that only services with an acceptably low risk and cost-effective footprint will be moved to the cloud.

In short, all of the states that are considering cloud computing are taking a thoughtful and balanced approach.

The Good

One of the most critical aspects of cloud computing is security and, without question, states understand the importance of good security. A good example of this is Colorado who designates security as one of its four “wildly important goals” and sets the target of “10 percent reduction in information security risk for Colorado agencies by close of FY15”.

South Carolina echoed the same theme by asserting that security and confidentiality are “overriding priorities at every stage of development and deployment.” Connecticut’s plans explain the need to “continuously improve the security and safeguards over agency data and information technology assets”.

The Bad

Despite the interest in cloud computing, we were only able to find a single state (Georgia) that explicitly links governance to security and, to us, by extension to cloud computing. In Georgia’s plan, they start with the idea that “strong security programs start with strong governance” and then explicitly describe necessary changes in governance to improve security.

We were, however, impressed with the seriousness that New York, North Carolina and Massachusetts took governance but it was difficult to find many other states that did.

The Ugly

Unfortunately the results on sourcing were dismal. While a few states (e.g. Kansas, Ohio, and Massachusetts) specifically discuss partnerships, most states seemed to ignore the sourcing aspect of cloud computing. The most ominous note comes from Alabama where they make a statement that innovation in the state is being stifled by a lack of strong personnel.

While we have great enthusiasm for government to address cloud computing, some of the non-technical issues are lagging in the discussion. Good government requires that these items be addressed in order to realize the promise of cloud computing.

Introduction: Despite the launch of indirect, “proximity” talks between Palestinians and Israelis, Palestinian President Mahmoud Abbas continues to resist a resumption of direct negotiations with Israel absent a full settlement freeze. As chairman of the Palestine Liberation Organization (PLO) and president of the Palestinian Authority (PA), Abbas also insists that any new negotiations pick up where previous talks left off in December 2008 and that the parties spell out ahead of time a clear “endgame,” including a timetable for concluding negotiations. While these may seem like unreasonable preconditions, Palestinian reluctance to dive headfirst into yet another round of negotiations is rooted in some genuine, hard-learned lessons drawn from nearly two decades of repeated failures both at the negotiating table and on the ground.

Not only have negotiations failed to bring Palestinians closer to their national aspirations but the peace process itself has presided over (and in some ways facilitated) a deepening of Israel’s occupation and an unprecedented schism within the Palestinian polity. Such failures have cost the Palestinian leadership dearly in terms of both its domestic legitimacy and its international credibility. While it remains committed to a negotiated settlement with Israel based on a two-state solution, the PLO/PA leadership has been forced to rethink previous approaches to the peace process and to negotiations, as much for its own survival as out of a desire for peace.

Haunted by past failures, Palestinian negotiators are now guided, to varying degrees, by six overlapping and sometimes conflicting lessons:

1. Realities on the ground must move in parallel with negotiations at the table.

2. Don’t engage in negotiations for their own sake.

3. Agreements are meaningless without implementation.

4. Incrementalism does not work.

5. Avoid being blamed at all costs.

6. Don’t go it alone.

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Introduction:

In the ebb and flow of Middle East diplomacy, the two interrelated issues of an Israeli-Syrian peace settlement and Washington’s bilateral relationship with Damascus have gone up and down on Washington’s scale of importance. The election of Barack Obama raised expectations that the United States would give the two issues the priority they had not received during the eight years of the George W. Bush administration. Candidate Obama promised to assign a high priority to the resuscitation of the Arab-Israeli peace process, and separately to “engage” with Iran and Syria (as recommended by the Iraq Study Group in 2006).

In May 2009, shortly after assuming office, President Obama sent the assistant secretary of state for Near Eastern affairs, Jeffrey Feltman, and the senior director for the Middle East in the National Security Council, Daniel Shapiro, to Damascus to open a dialogue with Bashar al-Asad’s regime. Several members of Congress also travelled to Syria early in Obama’s first year, including the chairman of the Senate Committee on Foreign Relations, John Kerry, and the chairman of the House Committee on Foreign Affairs, Howard Berman. In addition, when the president appointed George Mitchell as special envoy to the Middle East, Mitchell named as his deputy Fred Hof, a respected expert on Syria and the Israeli-Syrian dispute. Last summer, both Mitchell and Hof visited Damascus and began their give and take with Syria.

And yet, after this apparent auspicious beginning, neither the bilateral relationship between the United States and Syria, nor the effort to revive the Israeli-Syrian negotiation has gained much traction. Damascus must be chagrined by the fact that when the Arab-Israeli peace process is discussed now, it is practically equated with the Israeli-Palestinian track. This paper analyzes the difficulties confronting Washington’s and Jerusalem’s respective Syria policies and offers an approach for dealing with Syria. Many of the recommendations stem from lessons resulting from the past rounds of negotiations, so it is important to understand what occurred.

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This summer, the world has watched as an al Qaeda offshoot, the Islamic State group, launched a militant offensive into Iraq, seizing large swaths of land. This Center for Middle East Policy’s Middle East Memo, Kurdistan Rising: To Acknowledge or Ignore the Unraveling of Iraq, examines how the fall of Iraq’s key city of Mosul has changed matters for Kurds in Iraq, and the necessity for American policymakers to take stock of the reality of the Kurdistan Region in this “post-Mosul” world.

Highlights: 

• A look at the Kurds of Iraq, their history and how the United States has largely spurned a partnership with them. Having been autonomous in Iraq since 1991, the Kurds heeded the aspirations of the United States in 2003 to assist in the removal of the Baath regime of Saddam Hussein, and played by the rules of the game established in the post-2003 period, albeit unwillingly at times. However, they have consistently refused to follow a path that would result in relinquishing the powers they enjoy. They have even taken steps to extend their autonomy to the point of having economic sovereignty within a federal Iraq, thus bringing them into serious dispute with Baghdad and the government of Nouri al-Maliki and earning the rebuke of the United States.

• An examination of how, since 2011, failed U.S. and European policies aimed at healing Iraq’s sectarian and ethnic fissures have contributed to the current situation. By so strongly embracing the concept of Iraq’s integrity as crucial to American interests in the region, key allies and partners have been marginalized along the way.

• Policy recommendations for the United States and its western allies, given that the Kurdistan region now stands on the threshold of restructuring Iraq according to its federal or confederal design, or exercising its full right to self-determination and seceding from Iraq. By ignoring the realities of Kurdish strength in Iraq, U.S. and European powers run the risk of losing influence in the only part of Iraq that can be called a success story, and antagonizing what could be a key ally in an increasingly unpredictable Middle East.

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• Kurdistan Rising: To Acknowledge or Ignore the Unraveling of Iraq

“Social security is not going broke,” said Carolyn Colvin, acting commissioner of the Social Security Administration, at a Brookings Retirement Security Project event this week. She was joined by Consumer Financial Protection Bureau Director Richard Cordray to discuss retirement planning and to unveil a new retirement calculator. “Social Security is the only guaranteed monthly income for a majority of older consumers,” Cordray said.

After their keynote addresses, a panel of retirement security experts moderated by Guest Scholar Joshua Gotbaum discussed efforts to improve retirement planning and what knowledge the average American needs to make retirement planning achievable. Ted Gayer, VP and director of Economic Studies at Brookings, introduced the event.

Here are 10 facts about Social Security and retirement planning mentioned during the event. Full video is available below and on the event’s page.

1/3 of U.S. households spend all of their available resources in every pay period

60 million people received Social Security benefits in September 2015

For the average worker, Social Security replaces only about 40 percent of pre-retirement earnings

45 million people are already 65 or order, and 10,000 people are turning 65 each day

The average American now spends about 20 years in retirement
(in 1950, the average was about 4 years)

4 in 10 Americans aged 51-59 are reaching retirement with limited or no savings,
and are projected to face a saving shortfall

~2/3 of the 40 million Americans 65 and older who receive Social Security benefits
depend on those benefits for ½ or more of their retirement income

It’s about 70 percent or more of income for those 80 or older

Only 60 percent of people who retire claim to have done any retirement planning at all

Delaying claiming Social Security “buys” people 6-8 percent more real benefits per year once they do take it

Olivia Mitchell, a professor at the Wharton School, University of Pennsylvania, explained this last point, noting that if a person stopped working at 62 but waited to claim benefits until 70, he or she would receive a benefit 76 percent higher in (real) dollars per month for life. “When to claim Social Security is many older Americans’ most important financial decision they will ever make in their lifetimes,” according to Mitchell.

Learn more about the event here and watch the video:

Video

• Helping America plan for retirement: Keynote remarks

The American people deserve to have a federal government that is both responsive and effective. That simply isn’t the case for more than 1 million people who are awaiting the adjudication of their applications for disability benefits from the Social Security Administration.

Washington can and must do better. This gridlock harms applicants either by depriving them of much-needed support or effectively barring them from work while their cases are resolved because having any significant earnings would immediately render them ineligible. This is unacceptable.

Within the next month, the Government Accountability Office, the nonpartisan congressional watchdog, will launch a study on the issue. More policymakers should follow GAO’s lead. A solution to this problem is long overdue. Here’s how the government can do it.

Congress does not need to look far for an example of how to reduce the SSA backlog. In 2013, the Veterans Administration cut its 600,000-case backlog by 84 percent and reduced waiting times by nearly two-thirds, all within two years. It’s an impressive result.

Why have federal officials dealt aggressively and effectively with that backlog, but not the one at SSA? One obvious answer is that the American people and their representatives recognize a debt to those who served in the armed forces. Allowing veterans to languish while a sluggish bureaucracy dithers is unconscionable. Public and congressional outrage helped light a fire under the bureaucracy. Administrators improved services the old-fashioned way — more staff time. VA employees had to work at least 20 hours overtime per month.

Things are a bit more complicated at SSA, unfortunately. Roughly three quarters of applicants for disability benefits have their cases decided within about nine months and, if denied, decide not to appeal. But those whose applications are denied are legally entitled to ask for a hearing before an administrative law judge — and that is where the real bottleneck begins.

There are too few ALJs to hear the cases. Even in the best of times, maintaining an adequate cadre of ALJs is difficult because normal attrition means that SSA has to hire at least 100 ALJs a year to stay even. When unemployment increases, however, so does the number of applications for disability benefits. After exhausting unemployment benefits, people who believe they are impaired often turn to the disability programs. So, when the Great Recession hit, SSA knew it had to hire many more ALJs. It tried to do so, but SSA cannot act without the help of the Office of Personnel Management, which must provide lists of qualified candidates before agencies can hire them. SSA employs 85 percent of all ALJs and for several years has paid OPM approximately $2 million annually to administer the requisite tests and interviews to establish a register of qualified candidates. Nonetheless, OPM has persistently refused to employ legally trained people to vet ALJ candidates or to update registers. And when SSA sought to ramp up ALJ hiring to cope with the recession challenge, OPM was slow to respond.

In 2009, for example, OPM promised to supply a new register containing names of ALJ candidates. Five years passed before it actually delivered the new list of names. For a time, the number of ALJs deciding cases actually fell. The situation got so bad that the president’s January 2015 budget created a work group headed by the Office of Management and Budget and the Administrative Conference of the United States to try to break the logjam. OPM promised a list for 2015, but insisted it could not change procedures. Not trusting OPM to mend its ways, Congress in October 2015 enacted legislation that explicitly required OPM to administer a new round of tests within the succeeding six months.

These stopgap measures are inadequate to the challenge. Both applicants and taxpayers deserve prompt adjudication of the merits of claims. The million-person backlog and the two-year average waits are bad enough. Many applicants wait far longer. Meanwhile, they are strongly discouraged from working, as anything more than minimal earnings will cause their applications automatically to be denied. Throughout this waiting period, applicants have no means of self-support. Any skills applicants retain atrophy.

The shortage of ALJs is not the only problem. The quality and consistency of adjudication by some ALJs has been called into question. For example, differences in approval rates are so large that differences among applicants cannot plausibly explain them. Some ALJs have processed so many cases that they could not possibly have applied proper standards. In recognition of both problems, SSA has increased oversight and beefed up training. The numbers have improved. But large and troubling variations in workloads and approval rates persist.

For now, political polarization blocks agreement on whether and how to modify eligibility rules and improve incentives to encourage work by those able to work. But there is bipartisan agreement that dragging out the application process benefits no one. While completely eliminating hearing delays is impossible, adequate administrative funding and more, better trained hearing officers would help reduce them. Even if OPM’s past record were better than it is, OPM is now a beleaguered agency, struggling to cope with the fallout from a security breach that jeopardizes the security of the nation and the privacy of millions of current and past federal employees and federal contractors. Mending this breach and establishing new procedures will — and should — be OPM’s top priority.

That’s why, for the sake of everyone concerned, responsibility for screening candidates for administrative law judge positions should be moved, at least temporarily, to another agency, such as the Administrative Conference of the United States. Shortening the period that applicants for disability benefits now spend waiting for a final answer is an achievable goal that can and should be addressed. Our nation’s disabled and its taxpayers deserve better.

Editor's note: This piece originally appeared in Politico.

Critics of the nation's retirement system regularly complain that the system is in crisis. Too many private companies fail to offer their employees a retirement plan. Many employees who are covered by a plan fail to make contributions to it. Those who do make contributions may contribute too little or invest their savings unwisely. The end result: Many of us will reach retirement age with miniscule pensions or too little savings to enjoy a comfortable old age.

The argument that our retirement system has gaping holes is well founded. The notion that it faces an imminent "crisis" is nonsense. If the system currently faces a crisis, it has faced the same one for the past 40 years. While elderly Americans have seen their incomes and living standards improve in recent decades, the median working-age family has experienced little improvement in its real income. Nonelderly families that depend solely on the earnings of breadwinners who have below-average schooling saw a drop in their incomes.

In recent research with Brookings colleagues, I tracked the real incomes of families headed by aged and nonaged Americans. In the 34 years ending in 2012, the median real income of working-age families climbed a little more than 2 percent (in other words, by less than one-tenth of a percentage point per year). The median real income of families headed by someone past 62 increased a little more than 40 percent. The numbers suggest our retirement system is doing a decent job improving the living standards of the aged. Unfortunately, the labor market is doing a much worse job boosting the living standards of middle-class wage earners.

Critics of the retirement system might worry that it succeeds in protecting the incomes of the middle class elderly but fails to protect the incomes of the poor -- a concern not supported by the evidence. Income inequality has gone up among the elderly as it has among the nonelderly. But older low-income Americans have fared much better than low-income working-age adults. In the late 1950s, by far the highest poverty rate of any age group was that for people over 65. Even in the late 1980s, the elderly had a higher poverty rate than adults between 18-64. Since the middle of the last decade, however, the elderly have had the lowest poverty rate of any age group.

People who warn us of a retirement "crisis" are nonetheless correct in pointing to sizeable holes in the current system. Too few companies, especially small ones, offer their workers a retirement plan. According to recent government estimates, only about half of workers in companies with fewer than 100 employees are offered a retirement plan. Offer rates are higher in bigger companies and in government agencies, but about 30 percent of all employees are not offered any pension or retirement savings plan where they work. When retirement plans are offered, however, workers are very likely to participate in them -- even if they must make a voluntary contribution out of their pretax wages.

What is crucial for a retirement savings plan's success is automatic payroll withholding. Dollars that are withheld from workers' paychecks are harder for workers to spend on something other than retirement savings. A crucial improvement in our current system would be to require all employers to establish automatic payroll withholding for voluntary retirement savings in an IRA (individual retirement account). Companies that already offer a qualified pension or retirement savings plan should be exempt from any extra obligation.

The harshest critics of the current retirement system would go much further than this. Many want to bring back traditional retirement plans that guaranteed workers a specific monthly pension linked to their job tenure, final pay, and age at retirement. The advantages of such a plan for workers are that their employer is typically responsible for funding the plan and for ensuring that pensions are paid, regardless of the ups and downs of financial markets. A big disadvantage is that the promised benefits are not worth much if the worker's career with a company is cut short, either because of a layoff or quitting.

People who are nostalgic for old-fashioned pensions may be right that workers would prefer to be covered by such a plan, despite their disadvantages for short-tenure workers. I'm less persuaded that traditional pensions offer better protection to typical workers than modern 401(k)-type plans. Regardless of the pros and cons of the two kinds of plan, it is wildly unrealistic to think small employers or new employers will want to take on the risks and administrative burdens connected with an old-fashioned pension plan.

All U.S. workers are covered by a traditional, defined-benefit pension: it's called Social Security. It has worked well over the past four decades in protecting and even lifting the incomes of the retired elderly. It may not work as well in the future if benefits are cut substantially to keep the program solvent. Boosting workplace retirement savings is a sensible way to insure future retirees will have adequate incomes, even if Social Security benefits have to be trimmed. An essential first step to boosting savings is to require companies to put a retirement savings plan in every workplace.

Editor's note: This piece originally appeared in Real Clear Markets.

As I’ve noted in a previous JAMA Forum post, there has been a determined and serious effort in recent years by a broad range of organizations and analysts to find a consensus approach to the growing problem of financing long-term care in the United States. These efforts have just resulted in 2 major reports, released in February.

One report comes from the Bipartisan Policy Center (BPC), a national think tank committed to finding workable bipartisan policy solutions. The other is published by the Convergence Center for Policy Resolution, an organization that convenes groups and individuals with conflicting views to seek consensus on difficult issues. Participants in the latter project, known as the Long-Term Care Financing Collaborative, included leaders from major think tanks and philanthropy, insurance associations, health and consumer advocacy groups, organizations representing the interests of older Americans, not-for-profit services, and care for elderly persons, as well as former state and federal officials. (Disclosure: I served as an advisor to the BPC project and as a member of the Collaborative).

It’s a big step forward that the diverse participants in each of these projects were able to come to agreement. Why was that possible?

For one thing, the huge cost of long-term care and earlier failures to agree clearly focused many minds. Future costs are indeed attention-grabbing. Over the next 40 years, for instance, the number of elderly US residents with a severe need for long-term services and supports (LTSS) will increase 140% to more than 15 million. Meanwhile US adults turning 65 today can expect to incur an average of $138 000 in LTSS costs. But there is a wide risk distribution, with 15% of these seniors likely incurring more than $250 000 in expenses. Meanwhile, private insurance that covers the most crippling potential costs is proving harder and harder to find, with insurers increasing premiums and most pulling out of the market—in part because of the heavy and less predictable costs of aging.

Another factor that helped agreement in these projects was that the Urban Institute was able to upgrade its dynamic simulation model and to partner with the actuarial firm Milliman to incorporate claims data into its research to provide far more sophisticated and reliable estimates of several benchmark proposals. Urban made its model available to a range of organizations, including BPC (an employee benefits consulting company), LeadingAge (an association of groups that offer aging-related services), and the Collaborative. The estimates the Urban Institute produced had the effect of narrowing the set of plausible components in any serious plan. For instance, it became clear that a voluntary public catastrophic insurance program—even with subsidies—would be hard-pressed to significantly boost the number of people acquiring insurance protection against catastrophic LTSS costs.

What’s also important about these 2 projects is that the reports agree on several key elements. These elements are likely to form the core of potentially bipartisan legislation under a new Congress and administration. Among the most important are:

• Improving the market for private insurance. The BPC and the Collaborative proposals call for a number of steps to revitalize the market for private long-term care insurance, such as allowing employment-based retirement savings to be used for premiums and perhaps using autoenrollment to increase the take-up of available coverage. Both plans propose simpler, more standardized plans, with BPC including details of standard options. The Collaborative recommends clearly delineating private and public roles in long-term care insurance, with a stronger public role in addressing high need, long duration risk. As a further step toward bolstering the insurance market, both proposals recommend exploring innovations in long-term care product design. Ideas include possible jointly marketed products with health insurance or Medicare and perhaps long-term care coverage combined with life insurance or annuities.
• Public catastrophic insurance. Both reports call for a public catastrophic program for individuals with extraordinary costs to protect them from poverty and bankruptcy. In part, this is also to help cover the “tail end” risk that discourages private insurers from offering comprehensive protection, thereby allowing insurers to focus on shorter-term, more predictable coverage.  Each report is cautious about the uncertain cost of such protection but notes that the Medicaid program currently plays the role of insurer of last resort, and so a new catastrophic long-term care insurance program could help shift from the current welfare-based model toward a system of insurance. Echoing this, a new report from LeadingAge, which represents thousands of organizations engaged in aging services, also concluded that a universal program appears the best way to handle catastrophic costs.
• Retooling Medicaid. Both reports call for revamping Medicaid, by retooling its LTSS component to better serve persons with disabilities and others with long-term needs. Under both the BPC and Collaborative plans, states would offer a sliding-scale “buy-in” for Medicaid’s LTSS benefits. For working individuals with disabilities, this would function as a wraparound service to employer-sponsored health insurance and other health coverage. As both reports point out, the public catastrophic long-term care program would produce some savings for state Medicaid programs, making it financially easier for states to offer the wraparound coverage.
• Home and community based services. The 2 reports emphasize the importance of fostering community-based care and helping family caregivers.  An AARP report found that approximately 34 million family members and friends—mainly women—provide unpaid care to an older adult each year. The BPC would streamline waivers from federal rules to encourage states to expand home and community services. The Collaborative takes a step further and recommends entirely redefining Medicaid LTSS to include all settings and services currently offered under “mandatory” and “optional” state programs, and by doing so, eliminating the current bias in financing toward institutional care. The BPC suggests exploring some support for these caregivers, including temporary respite care to allow the usual caregiver some time off. The Collaborative published a report last summer, arguing for much greater integration of health and LTSS, including housing and transportation and for greater opportunities for training and support for caregivers.

There is of course a long road between publishing recommendations and the passage of legislation. And there are gaps in these proposals. For instance, how much a full proposal would cost and how it would be paid for (including how much from savings or new taxes) depends on design choices not worked out in detail.

But the similarity of these reports, the range of people and organizations involved and the determination of the participants to find common ground are in stark contrast to the polarization and gridlock we have become accustomed to. It augers well for enacting a solution to the enormous challenge of long-term care costs.

Editor's note: This piece originally appeared in The JAMA Forum

Editor's note: On March 16, Paul B. Ginsburg testified before the California Senate Committee on Health on fostering competition in consolidated markets. Download the full testimony here.

Mr. Chairman, Madame Vice Chairman and Members of the Committee, I am honored to be invited to testify before this committee on this very important topic. I am a professor of health policy at the University of Southern California and director of public policy at the USC Schaeffer Center for Health Policy and Economics. I am also a Senior Fellow and the Leonard D. Schaeffer Chair in Health Policy Studies at The Brookings Institution, where I direct the Center for Health Policy. Much of my time is now devoted to leading the new Schaeffer Initiative for Innovation in Health Policy, which is a partnership between USC and the Brookings Institution. I am best known in California for the numerous community site visits over many years that I led in the state while I was president of the Center for Studying Health System Change; most of those studies were funded by the California HealthCare Foundation.

The key points in my testimony today are:

• Health care markets are becoming more consolidated, causing price increases for purchasers of health services, and this trend will continue for the foreseeable future despite anti-trust enforcement; 
• Government can still play an effective role in addressing higher prices that come from consolidation by pursuing policies that foster increased competition in health care markets. Many of these policies can be effective even in markets with high degrees of concentration, such as in Northern California.

[1] Gaynor, M., and R. Town, The Impact of Hospital Consolidation – Update, Robert Wood Johnson Foundation Synthesis Report (June 2012).

[2] Baker, L. C., M.K Bundorf and D.P. Kessler, “Vertical Integration: Hospital Ownership Of Physician Practices Is Associated With Higher Prices And Spending,” Health Affairs, Vol. 35, No 5 (May 2014).

[3] Chapin White and Megan Egouchi, Reference Pricing: A Small Piece of the Health Care Pricing and Quality Puzzle. National Institute for Health Care Reform, Research Brief No. 18, October 2014.

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Fee-for-service payments encourage high-volume services rather than high-quality care. Alternative payment models (APMs) aim to realign financing to support high-value services.

The 2 main components of gastroenterologic care, procedures and chronic care management, call for a range of APMs. The first step for gastroenterologists is to identify the most important conditions and opportunities to improve care and reduce waste that do not require financial support.

We describe examples of delivery reforms and emerging APMs to accomplish these care improvements. A bundled payment for an episode of care, in which a provider is given a lump sum payment to cover the cost of services provided during the defined episode, can support better care for a discrete procedure such as a colonoscopy. Improved management of chronic conditions can be supported through a per-member, per-month (PMPM) payment to offer extended services and care coordination.

For complex chronic conditions such as inflammatory bowel disease, in which the gastroenterologist is the principal care coordinator, the PMPM payment could be given to a gastroenterology medical home. For conditions in which the gastroenterologist acts primarily as a consultant for primary care, such as noncomplex gastroesophageal reflux or hepatitis C, a PMPM payment can support effective care coordination in a medical neighborhood delivery model. Each APM can be supplemented with a shared savings component.

Gastroenterologists must engage with and be early leaders of these redesign discussions to be prepared for a time when APMs may be more prevalent and no longer voluntary.

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Editor’s Note: This analysis is part of The Leonard D. Schaeffer Initiative for Innovation in Health Policy, which is a partnership between the Center for Health Policy at Brookings and the USC Schaeffer Center for Health Policy and Economics. The Initiative aims to inform the national health care debate with rigorous, evidence-based analysis leading to practical recommendations using the collaborative strengths of USC and Brookings.

The passage of the Medicare Access and CHIP Reauthorization Act (MACRA) just over a year ago signaled a strong and unique bipartisan agreement to move towards value-based care, but until recently, many of the details surrounding how it would be implemented remained unknown. But last week, the Centers for Medicare and Medicaid Studies (CMS) released roughly 1,000 pages that shed more light on how physician payment will hopefully dramatically change for the better.

Some Historical Context

Prior to MACRA, how doctors were paid for providing care to Medicare patients was subject to a reimbursement formula known as the Sustainable Growth Rate (SGR). Established in 1997 to control the rate of increase in spending on physician services, the SGR pegged total spending among all Medicare-participating physicians to an overall budget target. Yet in this “tragedy of the commons,” no one physician benefitted from her good stewardship of health care resources. Total physician spending often exceeded the overall budget target, triggering reimbursement rate cuts. However, lawmakers chose to push them off into the future through what were called “doc fixes,” deferring the rate cuts temporarily. The pending cut rose to over 21 percent before MACRA’s passage as a result of compounding doc fixes.

Moving Forward with MACRA

When it was signed into law on April 16, 2015, MACRA ended the SGR, its cuts, and many previous payment incentive programs. In their place, MACRA established two overarching payment incentive schemes for providers to choose from:

1. the Merit-Based Incentive Payment System (MIPS) program, which supplants three previous payment incentives and makes positive or negative adjustments to a physician’s payment based on her performance; or


2. the Alternative Payment Model (APM) program, which awards a 5 percent bonus through 2024—with higher annual payment updates thereafter—for having a minimum percentage of Medicare and/or all-payer revenue through eligible APMs. Base physician fee rates for all Medicare providers would be updated 0.5 percent for each of the first four years, followed by no increases until 2026, when base fees would increase at different rates depending on the payment incentive program in which a physician participates.

MIPS addresses providers’ longstanding complaints that reporting that reporting under the existing programs—the Physician Quality Reporting System, the Value-Based Modifier, and Meaningful Use — is duplicative and cumbersome. Under the new MIPS program, physicians report to the government payer directly (CMS) and receive a bonus or penalty based on performance on measures of quality, resource use, meaningful use of electronic health records, and clinical practice improvement activities. The bonus or penalty physicians may see starts at 4 percent of the fee schedule in 2019 (based on their performance two years prior—in this case 2017) and increases successively to 5 percent in 2020, 7 percent in 2021, and 9 percent from 2022 onward. From 2026 onward, MIPS providers would receive an annual increase of 0.25 percent on their base fee schedules rates.

In contrast, the APM incentive program awards qualifying physicians a fixed, annual bonus of 5 percent of their reimbursement from 2019- – 2024, and provides that their fee schedule rates grow 0.5 percentage points faster than those of MIPS in 2026 and beyond, in recognition of the risk they assume in these contracts.

Yet, according to MACRA, not all APMs are created equal. APMs eligible for this track must use quality measures similar to those of MIPS, ensure electronic health records are used, and either be an approved patient-centered medical home (PCMH) or require that the participating entity “bears more than nominal financial risk” for excessive costs. Then, in order to receive the APM track bonus, physicians must have a minimum of 25 percent of their revenue from Medicare come through eligible APMs in 2019, with the minimum increasing through 2023 up to 75 percent. In 2021, a new all-payer Advanced APM option becomes available, allowing providers in APM contracts with other payers to participate in the Advanced APM incentive. To do so, they must meet the same minimum thresholds—50 percent in 2021, 75 percent in 2023—but through all provider contracts, not solely Medicare revenue, while still meeting a significantly lower Medicare-specific threshold. By creating an all-payer option, CMS hopes to enable greater provider participation by allowing all payer revenue to count toward the same minimum threshold. Under the all-payer model in 2021, for example, providers must have no less than 25 percent of Medicare revenue through Advanced APMs and 50 percent of all revenue through Advanced APMs.

MACRA Implementation Details Revealed

The newly released proposed rule provides answers to significant questions that had been left unanswered in the law surrounding the specifics of implementation of MIPS and the APM incentives. At long last, providers are gleaning insight into how CMS intends to implement MIPS and the APM track. Given the fast-approaching MIPS performance period in January 2017, here are three key highlights providers need to know:

1. Qualifying for the APM incentive track—and getting out of MIPS—will be difficult. In order to qualify for the bonus-awarding Advanced APM designation, APMs must meet the “nominal financial risk” criteria, which will be measured in three ways: an APM’s marginal rate sharing for losses, minimum loss ratio (the threshold above which providers would begin sharing in losses), and total potential risk as a percent of expected costs. Clinicians must further have a minimum share of revenue that comes in through the designated APMs.


2. Providers will have fewer opportunities to see and improve their performance on MIPS. Despite calls from provider groups for more frequent reporting and feedback periods, MIPS reporting periods will be annual, not quarterly. This is true for performance feedback from CMS, as well, though they may explore more frequent feedback cycles in the future. Quarterly reporting and feedback periods could have made the incentive programs more “actionable” for providers, alerting them to their performance closer to the time the services were rendered and providing more opportunities to improve performance.


3. MIPS allows greater flexibility than previous programs. Put simply, MIPS is the performance incentive program clinicians will participate in if not on the Advanced APM track. While compelling participation, the proposed MIPS implementation also responds to stakeholder concerns that earlier performance incentive programs were onerous and sometimes irrelevant—MIPS reduces the number of measures required in some categories and allows physicians to select from a set of measures to report on based on relevancy to their practice.

With last week’s release of the proposed rule, the Leonard D. Schaeffer Initiative for Innovation in Health Policy is kicking off a series of work products that will focus dually on further MACRA implementation issues and on translating complex policy into providers’ experience. In the blogs and publications to follow, we will dive into greater detail and discussion of the pieces of MACRA implementation highlighted here, as well as many other emerging physician payment reform issues, as the law’s implementation unfolds.

Given the lackluster healthcare exchange enrollment numbers, unaffordable coverage, and increasing overall healthcare costs, President Obama is wrong to think the Affordable Care Act (ACA) needs just a few tweaks – its most fundamental aspects need to be rethought. Obama’s essay marks the first time a modern sitting president has had a piece published in the journal.

Much of the progress made under the ACA expanding healthcare coverage to the uninsured has been thanks to increased enrollment in Medicaid -- not the exchanges -- a harbinger of even less progress to come.  Secretary of Health and Human Services Sylvia Burwell sharply adjusted down projections of new exchange enrollees in 2016 to 1.3 million. Furthermore, the Congressional Budget Office (CBO) has estimated that over the next decade, as the population increases, coverage will expand only modestly and the proportion of the uninsured will cease to decline.

Six key areas in the ACA are flawed -- and need to be fixed if healthcare reform is to meet its promise and not have rampant cost problems:

1. Subsidies still leave plans too expensive. Congress must continue income-related subsidies while making coverage affordable to both households and taxpayers, which is “no easy task” because it could drive up costs of the ACA considerably.
2. The Cadillac tax needs to be fixed. While better than nothing, it doesn’t confront the underlying problem of health insurance being tax deductible, which is regressive and inefficient. One suggestion is a modification of the Cadillac tax that makes any excess plan costs above a cap be considered taxable income to the employee, as opposed to an excise tax.
3. Increase federalism in the healthcare system. States should apply for waivers under Section 1332, which takes effect in 2017 and gives states flexibility to meet the law’s goals while retaining its basic protections. The Administration has made a serious mistake in dragging its feet and acting overly restrictively with states who could launch their own bold and far-reaching experiments, as it has itself in encouraging conservative states to expand Medicaid under the ACA.
4. The exchanges need to be the primary vehicle for health insurance – not Medicaid expansion. Equalizing the subsidy structure for exchange plans and the tax treatment of employer-sponsored benefits, more employees would go on the exchanges which gives them greater choice and portability.
5. Replace the Independent Payment Advisory Board with a premium support system for Medicare. Premium support would enforce a long-term budget for Medicare by allowing greater control of the beneficiaries themselves, as opposed to imposing payment and price controls; it would also accelerate innovation in the design and pricing of Medicare services.
6. The ACA should focus more on the “upstream” determinants of health – beyond just medical services. We need to find ways to blend health, housing, transportation, social services and other items to reduce the need for costly medical services, he writes.

If it were a separate economy, the US health system would be equivalent to the first or sixth largest economy in the world. It is both pragmatic and principled to recognize that achieving agreement on how to redesign an economy that large, or to do it successfully in 1 piece of legislation, is beyond the capabilities of the federal government. That is why core parts of the ACA need to be reassessed and revised and why empowering the US system of federalism to adapt and experiment with this law is so important.

Read "The Future of the Affordable Care Act: Reassessment and Revision."

The Medicare Access and CHIP Reauthorization Act of 2015, referred to most often as “MACRA,” set in motion a new approach to Medicare physician payment and replaced the oft-criticized Sustainable Growth Rate with two new payment schemes. In late April, the Centers for Medicare and Medicaid Services (CMS) released many proposed details surrounding the law’s implementation; however, it is important to keep in mind that the final rule is still forthcoming and may incorporate significant changes in response to public comments made on the proposed rule.

While there are many stakeholders trying to understand the implications of this significant legislation, physicians and other providers—whose response is critical to the success of MACRA—must prepare quickly and almost immediately make decisions about which incentive program to pursue and what steps will increase prospects for success. Starting January 1, 2017, physicians’ and other providers’ performance will determine their payment rate updates. Because of the time required to gather and evaluate performance data, spending and other performance measures in calendar year 2017 will provide the basis for physician payments in 2019.

In this piece, we offer a glimpse into the potential financial changes in physician payment based on the proposed rule. Due to the complexity of the MACRA provisions and their significant effects on payment, policymakers, physicians, and other providers alike must better understand the various dimensions of MACRA. We focus on the financial flow of dollars to help physicians and other providers assess which path within MACRA to take and how best to forecast the impact on their payments, as well as to provide an overview for policymakers on the financial implications of different options physicians are actively weighing now as a result of MACRA.

MACRA overview

As established in the law, MACRA creates two primary payment schemes that physicians accepting Medicare can choose to be judged under:

1. The Merit-Based Incentive Payment System (MIPS), which administers bonuses or penalties based on how well physicians perform relative to other physicians on a set of quality and value measures (detailed later); or
2. The Advanced Alternative Payment Model (APM), which initially offers bonuses and then provides higher annual fee updates than MIPS when physicians earn a sufficient amount of their revenue (or see a sufficient percentage of their patients) through qualifying Medicare or approved private payer payment models that require accepting financial risk if spending exceeds targets.

At least initially, the large majority of physicians and other providers likely will be judged under MIPS, with CMS projecting in the proposed rule that only 4 to 11 percent of Medicare providers will qualify for the Advanced APM payment approach in its first year because of the relatively strict standards to qualify. Unlike the expectations expressed during congressional debate over MACRA, which mainly focused on encouraging physicians to form or contract with APMs, the rules proposed by CMS will lead many to remain in MIPS for the foreseeable future. Indeed, we understand that many physician specialty societies are advising their members to remain in MIPS. In a comment letter to CMS, we suggested ways to better support the pipeline of physicians and other providers into APMs.

The graph below illustrates the potential scenarios for the flow of funds under the proposed rule. In MIPS, payment is based upon physician performance relative to all other physicians in the program, with bonuses and penalties centered around the base fee-for-service (FFS) payment rates and annual payment updates. MACRA explicitly requires bonuses or penalties in MIPS—not including exceptional performance bonuses—to be budget neutral.

Unlike MIPS, the Advanced APM program dictates that physicians receive a fixed 5 percent bonus for each of the first six years and higher base payment rate updates than MIPS from 2026 onward, in addition to additional bonuses or penalties based on quality and cost performance under their respective Advanced APM contracts. Adding to the contrast with MIPS, bonuses in the Advanced APM program, as well as contractually specified bonuses or penalties, have no requirement to be budget neutral.

The graph below illustrates that consistently high performers in MIPS can actually financially outperform physicians in APMs for many years. In theory, therefore, physicians in an APM—for instance, a Next Generation Accountable Care Organization (ACO)—who are confident that they would score well on relevant quality and value metrics might actually prefer to be judged as a group under MIPS.

In assessing their options, though, it is important to recognize that performance under MIPS as an individual physician or small group may be less predictable than as a part of an APM, because performance in MIPS is relative to the performance of other physicians. This unpredictability occurs because, as explained above, MACRA requires MIPS incentive payments to be budget neutral, which makes performance among MIPS providers a zero-sum-game—one physician’s increase in performance threatens the payment of another, such that bonuses and penalties offset each other overall.

The Merit-Based Incentive Payment System (MIPS)

MIPS consolidates three existing programs that dictate physician bonuses or penalties for Medicare physicians and other providers (the physician quality reporting system, a meaningful use incentive program for electronic health record use, and the value-based payment modifier) into a new system that creates a composite score based on:

• The quality of care provided (30 percent in 2021 and beyond), as measured under current law;
• Resource use (30 percent in 2021 and beyond), which consists of the “measures of resource use established for the value-based modifier under current law and, to the extent feasible, accounting for the cost of Part D Drugs”;
• Meaningful use of electronic health records (EHRs) (25 percent), established under current law to determine whether a provider is meaningfully using EHRs; and
• Clinical practice improvement activities (15 percent), a broad subsection decided on by the Secretary.

Physicians and other providers’ weighted scores in each of these categories for a year are aggregated into an overarching Composite Performance Score (CPS) for each practice. The CPS values are ranked from highest to lowest, and the relative ranking of each score determines how provider payments are adjusted, dictating whether a bonus or penalty results as well as its size. Each year, the Secretary will select either the mean or the median of CPSs for that year to serve as the performance threshold above and below which physicians and other providers will receive bonuses or penalties, respectively.

Initially in 2019, 4 percent of a medical professional’s revenue generated through Medicare fee-for-service payments will be redistributed under MIPS, growing to 9 percent by 2022 and remaining at that level indefinitely. By comparison, under the three previous reporting programs, physicians in small practices were subject to combined penalties as high as 6 percent or bonuses up to 2 percent; larger practices (with 8 or more physicians) were subject to maximum penalties and bonuses of 8 percent and 4 percent, respectively.

Maintaining budget neutrality requires that CMS pay the same amount in bonuses as it receives in penalties. To assure that penalties offset bonuses, the MIPS bonus percentages described above are potentially subject to a scaling factor of up to three-times to maintain budget neutrality. For example, having the Secretary adopt the median CPS would mean half of all physician practices would rank above that value and half would rank below. However, because practices can differ in both number of physicians and the extent of their Medicare billing, there is no guarantee that the Medicare payments—and associated bonuses—earned by practices above the midpoint would exactly equal the penalties owed by practices below the midpoint. CMS would compute and apply an appropriate scaling factor to assure total bonuses equal total penalties and achieve budget neutrality.

Outside of the budget neutrality requirement, the law provided $500 million each year from 2019 to 2024 to award “exceptional performance” bonuses to MIPS providers with the highest composite performance scores. The bonuses would be awarded on a sliding scale up to as high as 10 percent added to the base MIPS bonus.

Advanced Alternative Payment Models (Advanced APMs)

The other pathway under MACRA involves alternative payment models that meet the criteria established by CMS to be designated “advanced.” Advanced APMs are defined as (i) measuring physicians and other providers according to metrics similar to those of MIPS, (ii) requiring providers’ use of certified EHRs, and (iii) holding providers accountable for at least “nominal financial risk.” In the proposed rule, CMS outlines which of its current APMs measure up to this “Advanced” threshold, including:

• Medicare Shared Savings Program ACOs, Tracks 2 and 3;
• Medicare Next Generation ACOs;
• Comprehensive Primary Care Plus (CPC+) Model;
• Oncology Care Model (two-sided risk); and
• Comprehensive End-Stage Renal Disease Care Model (Large Dialysis Organization arrangement).

Notably absent from this list of proposed approved Advanced APMs are Track 1 MSSP ACOs and various bundled payment models.

By earning a sufficient percentage of their revenue through an Advanced APM, physicians can qualify for a bonus payment equal to 5 percent of their annual fee-for-service revenue in years 2019-2024 and a 0.5 percentage-point higher annual fee rate increase than physicians and other providers in MIPS each year starting in 2026 (0.75 percent vs. 0.25 percent). Alternatively, as a new feature under this rule, physicians can also qualify by seeing a sufficient percentage of their patients through an Advanced APM; notably, the patient percentage thresholds are lower than the revenue percentage thresholds.

Specifically, for physicians participating in Advanced APMs, there are four ways to qualify for the bonuses and higher payment updates of the Advanced APM track. Across all, the thresholds increase in the initial years and remain constant from 2023 onward. However, the thresholds are distinct in whether they are based on revenue or patient volume, as well as whether they are based on Medicare alone or on all payers. The four categories for qualification are:

1. Earn a minimum percentage of their Medicare Part B revenue through an Advanced APM;

2. Starting in 2021, earn a lower minimum percentage of their Medicare Part B revenue AND a minimum percentage of their revenue from all payers through an Advanced APM;

3. See a minimum percentage of their Medicare patients through an Advanced APM; or

4. Starting in 2021, see a lower minimum percentage of their Medicare patients AND a minimum percentage of their patients from all payers through an Advanced APM.

Importantly, if physicians and other providers fall short of these minimums, they would not qualify under the Advanced APM track. However, physicians and other providers participating in APMs who meet the lower “Partial Qualifying Provider” percentage thresholds for either revenue or patients can choose to opt out of MIPS reporting altogether, guaranteeing that they will receive neither a penalty nor bonus for the year. Further, the providers participating in APMs that were not designated Advanced may still qualify as MIPS APMs and receive some automatic credit under the Clinical Practice Improvement Activities (CPIA) category.

Potential for low specialist participation in the Advanced APM program

Over time, MACRA is likely to continue to evolve and the All-Payer Combination Advanced APM option will become available, making payment models developed by private insurers increasingly available and allowing more payment models to gain “advanced” recognition.

Notably, however, the “advanced” list does not include any of the current bundled payment models established by CMMI. This omission will be particularly critical to specialists, as bundled payments represent a significant share of their participation in APMs and many of the proposed “advanced” APM qualifiers have more effectively engaged primary care physicians and other providers than specialists to-date.

To this end, in their proposed rule, CMS’ requested comment on how to offer an option based on bundled payments, a model that has garnered comparatively greater specialist participation. Bundled payments as a concept have often been cited by economists and health care policymakers as a strong policy lever to shift to value-based payment, but their exclusion may effectively limit many physicians and other providers.

Concluding thoughts and outstanding questions

With only six months before physicians’ performance will have an impact on their payment under MACRA, physicians are intensely scrutinizing the two payment incentive programs and how they would fare under them. But most are confused about how best to navigate the various programs given the complexity of the rules and options. The lack of timely data with which to assess their performance on an ongoing basis may further handicap the ability of physicians to make informed choices and improve their performance.

While the proposed rule elucidates many elements of the new payment systems and the final rule will help clarify some remaining questions, many questions about moving parts remain, including those related to: the different risks and rewards for MIPS vs APMs; the uncertainty of movement between both pathways; and the potential for additional payment models (such as the Physician-Focused Payment Model option). These and other uncertainties have raised concerns about the viability of small practices in this environment and the risk that MACRA will lead large numbers of physicians to seek employment by hospitals and large physician organizations. This risks potentially leading to to much higher degrees of consolidation and losses in physician productivity.

MACRA remains a fundamentally important change from the status quo. It offers significant promise to change—and hopefully improve—physician practice and move payment from volume to value. Without question, its implementation will be watched intently.

Since the Affordable Care Act’s (ACA) health insurance marketplaces first took effect in 2014, news story after story has focused on premium increases for certain plans, in certain cities, or for certain individuals. Based on preliminary reports, premiums now appear set to rise by a substantial amount in 2017.

What these individual data points miss, however, is that average premiums in the individual market actually dropped significantly upon implementation of the ACA, according to our new analysis, even while consumers got better coverage. In other words, people are getting more for less under the ACA.

Covered California, that state’s marketplace, just announced premium increases averaging 13.2 percent. But even if premiums increase by the 10 or 15 percent overall that some are predicting for 2017, they will still be far lower than premiums otherwise would have been in the absence of the law. Moreover, this analysis does not include the effects of premium and cost-sharing subsidies that serve to make ACA marketplace plans more affordable for many people.

2014 Premiums In the ACA Marketplaces Were 10-21 Percent Lower Than 2013 Individual Market Premiums

While many stories of pronounced increases are simply the natural result of a law that works differently in every region and for people of different health statuses, it appears to be conventional wisdom that the ACA increased premiums in the individual, non-group insurance market, if only because it increased the quality and robustness of coverage. Indeed, many of the ACA’s new rules do have the anticipated effect of increasing premiums, such as:

• mandated guaranteed issue regardless of health status;
• restrictions on the ability to charge different premiums based on anything besides age and smoking habits;
• requirements for plans to offer certain benefits deemed “essential;”
• limits on out-of-pocket costs an enrollee can pay for covered services in a given year; and
• the elimination of any lifetime limits on coverage.

However, many features of the ACA push in the opposite direction and save consumers money. The individual mandate and federal subsidies greatly expanded the number of people purchasing coverage in the individual market, pushing premiums down both by increasing the sheer size of the market – the bigger the market, the lower the prices – and including many healthier people who previously went uninsured. In addition, the ACA created relatively transparent marketplaces where insurers must compete on premiums for products standardized by actuarial value, allowing competition to drive down prices.

Together, by creating a much larger and more competitive market, these changes placed strong downward pressure on insurance premiums, outweighing the factors pushing in the opposite direction. Stronger rate review and minimum requirements for how much an insurance plan must spend on actual health care expenses furthered this downward pressure on prices.

According to our analysis, average premiums for the second-lowest cost silver-level (SLS) marketplace plan in 2014, which serves as a benchmark for ACA subsidies, were between 10 and 21 percent lower than average individual market premiums in 2013, before the ACA, even while providing enrollees with significantly richer coverage and a broader set of benefits. Silver-level ACA plans cover roughly 17 percent more of an enrollee’s health expenses than pre-ACA plans did, on average. In essence, then, consumers received more coverage at a lower price.

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Editor's note: This piece originally appeared in Health Affairs.

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President Barack Obama's April 17 debut before the hemisphere's main gathering of democratically elected leaders offers an important test of his administration's commitment to longstanding bipartisan support for democracy abroad. So far, the signals are not encouraging.

No doubt, the president inherits an unfortunate legacy on this front. President George W. Bush's over-the-top freedom agenda was seen by many as a veiled attempt, by military means or otherwise, to assert U.S. hegemony. At best, it was an overly ambitious and ham-handed effort to boost prospects for political reform in every corner of the world.

The more pragmatic Mr. Obama will take a different, more muted approach, bending U.S. advocacy on human rights to other concerns. Secretary of State Hillary Clinton apparently suggested that in her February visit to Beijing, where she signaled to the Communist Party's leaders that the United States would not let human rights get in the way of other priorities. But how far will this pragmatism go? Are we entering a new era in which the rights of the hundreds of millions of people who still live under authoritarian rule are relegated to third-tier status in the U.S. agenda?

In Latin America and the Caribbean, the good news is that most citizens not only have a secure voice and vote in how they are governed, but live in increasingly free societies. Freedom of the press is robust, civil society is active and independent judiciaries are slowly consolidating. Threats to these critical components of any democratic society emanate less from a restless military and more from heavily armed criminals who create havoc in once safe neighborhoods and target investigative journalists and honest judges with "plata o plomo" - money or lead.

There are, however, a few exceptions to this generally positive trend. Venezuela, under Hugo Chavez's tutelage, has deteriorated badly on several indicators of democratic life and is no longer invited to the Community of Democracies, a global association of governments committed to fundamental practices of democracy and human rights. Not far behind is Nicaragua which, under Sandinista leader Daniel Ortega, is reverting to old-style tactics of repressing the opposition and clamping down on dissent. Other states worth watching closely are Ecuador and Bolivia which, as they undertake dramatic reform to incorporate once marginalized groups, are vulnerable to civil conflict.

And then there is Cuba. Raul Castro will not be at the Summit of the Americas in Trinidad and Tobago because Cuba does not adhere to the inter-American system's fundamental principles of democracy and human rights. That is as it should be. But Mr. Obama will face considerable pressure from his colleagues to fudge this bright line by engaging, rather than isolating Cuba, as they and nearly every other country has done. Indeed, the White House has already begun moving in this direction by easing restrictions on family travel and remittances to the island. Much more can and should be done in the coming months to continue this process of rapprochement between Washington and Havana. But lifting Cuba's suspension as a member of the Organization of American States (OAS), as many are advocating, would be a step too far.

The governments of the region, as they emerged from years of military dictatorship in the 1980s, agreed to lock arms and resist any attempt to overthrow civilian constitutional rule. This joint approach has served the region well when such countries as Peru, Paraguay, Guatemala and Haiti faced political turmoil. The commitment to core democratic standards, expressed through the Inter-American Democratic Charter, is central to the region's identity and compares well to the European model of integration based on common democratic values and forms of government.

All this progress is at risk if the region's governments decide to lift Cuba's suspension as a member of the OAS without preconditions. Unless the Castro regime takes serious steps toward meeting the region's basic human rights standards, including rights to free speech, fair elections and due process for political prisoners, it should not be considered for renewed membership. The Obama Administration, which appears determined to open new paths of dialogue with difficult countries like Cuba, Iran and Syria, must be careful not to lower the bar so far that its own neighborhood loses its distinct identity as a community of democratic states.

President Obama, thus, should walk a fine line at the Summit gathering. He needs to lead by example by implementing human rights reforms at home while reminding his colleagues they share a common responsibility to follow and promote universal democratic standards. This must include encouraging the Castro government to adopt genuine political reforms before it can be welcomed back to the OAS, as well as strengthening the region's collective defense of democracy in backsliding states. Anything less would surely set the human rights cause back for the region, and the world.