Come 2024, Bostonians could see Green Line service to Medford, Amazon drones in the sky, and a Summer Olympics opening ceremony at a stadium in Southie. Whether they’ll see a competitive health care marketplace is harder to predict. It all depends on whether a complex agreement pushed by Attorney General Martha Coakley tames the market power of Partners HealthCare.
And that depends, to an unsettling degree, whether the lawyers on Coakley's team who negotiated the 10-year deal with Partners have accurately predicted how the health care market will operate — and on how many of them stay around to make the deal stick.
Now awaiting approval in state court, the deal allows Partners, parent of the renowned Massachusetts General and Brigham and Women's, to acquire three suburban hospitals. In exchange, Partners would accept up to 10 years of limits on how it contracts with insurers, six and a half years of limits on price increases, and an outside monitor to keep tabs on its conduct.
Coakley's team is clearly confident that a well-crafted monitoring system, backed by the courts and the AG's office, can rebalance a health care market in which lower-cost providers struggle to compete against Partners' prestige.
But in a state with a noble tradition of activist government, overconfidence is the policy variable that dare not speak its name. Over time, smart government lawyers get attractive job offers. New elected leaders bring their own priorities. Market conditions change in unexpected ways.
As Superior Court Judge Janet Sanders ponders the consent agreement, she should consider the many ways in which a deal forged in 2014 might lose its urgency.
In agreeing to the Partners deal, Coakley converted a potential antitrust suit into a long-term policy project, one that supporters and critics alike describe as unprecedented. In the absence of apples-to-apples comparisons, I asked a number of legal experts and longtime Beacon Hill watchers in recent weeks to help identify rough analogs in the annals of state government: multi-year policy projects that demand sustained attention and a strong political commitment.
There have been some successes: After the 1993 education reform plan, for instance, legislators and state education bureaucrats mostly stuck to a basic bargain of more money for schools in exchange for more accountability — even as interest groups fought around the edges.
Other examples show how time can erode even more formal legal commitments. In 2009, as part of a larger transportation reform bill, the Legislature directed the Patrick administration to study ways of using private money to improve roads and other public assets. But it was a crazy period. The Patrick administration was churning through transportation chiefs. Unions fought key provisions. Senator Steve Baddour, the biggest promoter of public-private partnerships, left the Legislature. The required study commission didn't come into effect for years.
Another example: In 2011, when the Steward Health Care System took over the bankrupt Quincy Medical Center, the for-profit chain promised that the bankrupt hospital would stay open through 2017. Last month, Steward announced plans to close it anyway. Rather than insisting that a deal is a deal, the AG's office is leaving Steward some wiggle room. That sounds reasonable today; the Quincy facility is in bad shape financially, and Steward's vow to Coakley wasn't part of a court-enforced agreement. But it shows that highly specific commitments can be renegotiated.
Responding to such concerns, Coakley's office points to a long history of consent agreements with businesses, including a 2008 agreement with the drug-benefit management firm Caremark. Meant to prevent certain conflicts of interest, that deal has proceeded without incident. But enforcing it doesn't require much sustained political will. A 10-year entanglement with Partners, the state's largest employer, certainly would.
Partners executives, for their part, don't believe they're getting off lightly. The deal would be enforceable in court. Constant scrutiny from an outside monitor, hired on Partners' dime, won't fill their hearts with glee. Yet when disputes arise, the AG's office would have to decide which ones to take back before the judge. Over a decade punctuated by election years, future attorneys general might not be eager to fight over a 2014 deal.
The clearest alternative to the proposed Partners deal is an antitrust suit to block the health system from buying more hospitals. Coakley's critics underestimate how arduous that path would be. Still, the deal with Partners asks Judge Sanders and the public for something that nothing in recent experience justifies: an uncommon faith that, if a health care behemoth gets still bigger and stronger now, enlightened overseers can, over a decade, safely manage away the risks.