Non-punitive sanctions

… since the punitive kind would damage some of BushCo’s corporate sponsors, in this case the health insurers who provide Medicare Part D coverage.

Who says the Bush Administration isn’t creative?

Robert Pear in the New York Times has yet another excellent story about the misadventures of the Medicare Part D prescription drug insurance program.

The big insurers who (along with Big Pharma) bought and paid for Medicare Part D are massively cheating on their legal obligations. In particular, they’re not providing the customer service function they’re required to provide; instead, they merely refer customers who need immediate medication refills but have had their claims rejected to the government’s own 800 number.

The President, who has the Constitutional duty to “take care that the laws be faithfully executed,” has apparently allowed his subordinates to declare an “unofficial grace period” during which Part D insurance providers can violate the rules with impunity. The government has even failed to publish a schedule of penalties to be imposed for breaking the rules, on the somewhat bizarre ground that “sanction authority is not intended to be punitive.”

Now that they’ve invented non-punitive sanctions, how about chaste pornography? Merciful torture? Dry water? (Or how about compassionate conservatism?)

And of course the Administration that never stops yammering about “choice” has decided to deny to consumers the information about the performance of the competing plans that would allow them to choose intelligently rather than by eenie-meenie-miney-mo.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

5 thoughts on “Non-punitive sanctions”

  1. The article doesn't say that "big insurers" are "massively cheating on their legal obligations." It doesn't provide any evidence for that position either. Do you have such evidence, or are you lying ?
    The relevance of the "take care" clause isn't clear here. Would you care to make clear what you believe that constitutional provision requires?
    What in the article would make you believe that the government has declared an "unofficial grace period" "during which Part D insurers can violate the rules with impunity"? Doesn't Dr. McCellan, the administrator for the program, have a statement on the record? Are nonrenewal and termination not consequences for violation? (Is the question whether they are "punitive"–so that if they're not "punitive" then there is "impunity"?) Doesn't John Gorman, the consultant who refers to the unofficial grace period, suggest that enforcement would occur for egregious violations?
    What would make you say that the government has failed to publish a schedule of penalties "on the somewhat bizarre ground that 'sanction authority is not intended to be punitive.'" The article doesn't explicitly link the two concepts. Have you referenced the underlying publication to draw the connection not made in the article? Or have you simply over-read this piece?
    More interestingly, do you think that it would be a good thing, from the government's perspective, for the program to announce that the rules are intended to be punitive? Do you think that, perhaps, there might be good reasons for claiming that the sanctions regime is intended to be nonpunitive? For example, mightn't "punitive" sanctions regimes (as opposed to "nonpunitive" sanctions regimes) be thought of as a criminal provision, and thus mightn't denominating the regime as "punitive" actually hinder the regulatory goals? May I suggest some additional consideration on this point? Or some consideration, before your (bad faith) accusations of bad faith?
    Finally, the fact that particular data has not yet been release doesn't indicate one single thing about whether the government has decided to refuse to release it. Nor is there any evidence that the data would be meaningful or useful in anyone's making a decision. (Should people switch plans mid-year—can they?–based on data from the initial weeks and months of the program? Is that the point of collecting the data? Why not give them data for the first Wednesday, on the assumption that some data is better than none?)
    Other than that, spot on.

  2. Thomas:
    You claim that the article doesn't provide evidence of massive cheating by insurance companies, and demand to know whether I'm lying. In fact, it starts with a report that insurance companies, who are obligated by regulation to deal with customer complaints, are instead merely referring those complaints, including situations in which people can't get their prescriptions refilled, to a government 800 number not designed to deal with them. I call that "cheating" What do you call it?
    You ask:
    "What in the article would make you believe that the government has declared an 'unofficial grace period' 'during which Part D insurers can violate the rules with impunity'?"
    I reply:
    "John K. Gorman, a former Medicare official who is now a consultant to many insurers, said: 'The government has given companies an unofficial grace period in the first year, while they try to make this program work. We do not expect to see much enforcement unless there's an egregious violation.' "
    May I remind you of the posted "no insults" rule?
    And may I suggest that, even aside from the rule, that it would be a good idea to read both a document and its source carefully before calling its author a liar?

  3. Mark, I quoted you, but you didn't quote my quote of you. The article refers to "many" of the "dozens". You said the article referred to "the big"–and I'm asking for the source for that. I take it you don't have one, and it is clear the article didn't provide it. (It also isn't clear whether the referrals to the Medicare hotline are sufficient in number (measured by insurer), are authorized by the insurers, etc. to say that this is 'massive cheating.' If you have additional details on those points, which also aren't addressed in the article, please share.)
    I did see the reference to Gorman. I even referred to it in my comment. Did you not read my comment? How does the Gorman quote fit with "impunity"? What do you think that word means?
    Do I take it you withdraw the "nonpunitive sanctions" piece of your post (I mean, other than the title)?
    I'd say I'm in a stronger position vis a vis the facts for the things I said than you are for the charges you made. Of course, you're the host, so you're in a better position to determine whether the accusations you made need to be withdrawn/modified or my comments on the same ignored/deleted.

  4. Thomas, I admit I don't know much about the government's legal obligation, about which you and Mark disagree. I'm just wondering why you, as a tax payer, aren't pissed off?
    It very much annoyed me when I read this analogy of the giveaway to Big Pharma by a blogger at Huffington Post:
    "It's like the government subsidizing me to pay full price at Brooks Brothers but refusing to help me pay half price for the same suit at Costco."
    You can read the whole article here:

  5. It seems that the government is in something of a cleft stick with respect to sanctions. If a plan is terminated or denied renewal, suddenly thousands to millions of people are left without coverage and must scramble (with or without government help) to find a new plan. If fines are imposed, a plan can simply change its cost structure or revise its formulary to recoup the lost money (remember that customers are locked in for a year at a time while plan adjustments occur much faster).
    Of course, this cleft stick is of government's own making, but that's what you would expect of crony capitalism.

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