HealthLawProf Blog

Private Equity & British Care Homes

In earlier posts I have discussed the “care/profit tradeoff in nursing homes,” focusing on the role of private equity firms in reducing costs by limiting the liability of their enterprises. Cutting nursing staff and increasing the risk of elder neglect isn’t so costly for private equity barons when “complex corporate structures . . . obscure who controls their nursing homes.” One firm constructed a particularly notable series of corporate moats between itself and the nursing home which it first controlled, and then rented land to.

Daniel JH Greenwood has called a good deal of private equity activity a form of looting, and I have explored its shortcomings in a review of a book on the topic. Sadly, it appears that the private equity influence in Britain is undermining a key part of its health care system. Having stacked various care homes with debt in order to buy them, many private equity firms have abandoned (or are about to abandon) the homes:

[A new] report, delving into the running and funding of the care industry, reveals that the collapse of Southern Cross may not be a one-off, as a number of other social care companies are also on the brink. Private equity takeovers of public services that use similar high risk business models, could leave taxpayers picking up the bill for more company failures. The in-depth study of privatisation shows that the second largest care provider, Four Season, is also in severe financial difficulties and others may follow. If both Southern Cross and Four Seasons were to collapse, around 1,150 nursing and residential care homes would be at risk of closure, affecting nearly 50,000 vulnerable people and their families and hitting over 60,000 staff.

Another of the top four largest residential care home operators is Barchester Healthcare - a sister company to Castlebeck, the operators of the Bristol care home exposed by a Panorama documentary . . . for patient abuse . The home owners have admitted that serious wrongdoing took place at Bristol. The report shows that Barchester and other operators of care homes, have repeatedly changed ownership, often through private equity firms buying, consolidating and selling companies. The UK’s largest union is warning that the Government must tackle the crisis in the care industry.

However disruptive the private equity takeovers have been, they have fulfilled their main purpose: huge gains for a few entities that bought and sold at the right time:

Southern Cross was floated on the stock market by Blackstone, which obtained a 400% return in two years on its acquisition. Southern Cross is now at risk of collapse. Allianz Capital Partners made a return of 100% by acquiring Four Seasons in 2004 for £775 million, selling it four years later for £1.4bn - the business then collapsed in value.

3i private equity fund brought a 38% stake in Care Principles for £1.5m in 1997, the remaining amount in 2005 and sold to to Three Delta in 2007 for £270m - a return of 390%. Tunstall was acquired by Bridgepoint Capital in 2005 for £225m, merged with Bridgepoint Investment and sold on after three years for £514m.

Here are more details on Southern Cross. This story and other critical commentary suggest that the goal for owners has been rapid profit rather long term investment in more efficient processes. When the “music stopped” in the acquisition game, it was left with mounting debts.

Chris Sagers’ article “The Myth of Privatization” (59 Admin. L. Rev. 37) suggests that there is very little difference between “public” and “private” operationally, except that “one of them lacks even a nominal obligation toward the public interest.” I have seen little evidence to contradict that idea in the eldercare industry. Further research may reveal more support for Daniel JH Greenwood’s diagnosis of the rise of private equity:

The success of private equity firms challenges mainstream corporate governance theory: according to standard agency cost analysis, this should not have happened. Agency problems—the shorthand term for the tendency of fiduciaries in a capitalist system to work for themselves as well as, or instead of, their clients—cannot be solved by adding an additional layer of extremely highly paid agents supported by an ideology that justifies the most extreme forms of self-interestedness. Therefore, private equity is unlikely to be an innovative solution to the age-old agency problem.

Instead, it is better understood as a clever bit of legal arbitrage: by reclassifying agents as principals, it allows former fiduciaries to instead view themselves, and be viewed by others, as entitled to look out only for themselves. And look out for themselves they have: the private equity managers have extracted hitherto unseen sums from our corporations, appropriating for the private benefit of a handful of individuals surplus that otherwise might have gone to other corporate participants, including consumers, ordinary employees, taxpayers and investors in the public securities markets, or might have been devoted to increasing productivity or innovation for the benefit of future generations.

The basic private equity technique, like the basic hedge fund technique, appears to be to borrow money in order to increase potential returns or losses. If the loans were correctly priced, this would not create new value under standard valuation theories, nor would it be a service that could possibly warrant the high fees typically charged in the hedge fund and private equity worlds. The simplest explanation is that either lenders or fund investors are mispricing risk and have done so for several years at a stretch, contrary to the claims of the efficient market theorists.

This explanation suggests, moreover, that private equity is simply the modern equivalent of the pyramid schemes, margin loans and highly leveraged utility holding companies of the 1920s. Like those earlier edifices built on borrowed money, the contemporary schemes are likely to be highly unstable: if the underlying assets decline in value or fail to provide expected income by even small margins, the lenders are likely to take losses out of scale with their potential profits. Once lenders wake up to this possibility—most likely only after losses have begun—they are likely to cut back lending rapidly, which will, in turn, make the underlying assets both less valuable and less saleable still, thus beginning a new round of lender panic. Any minor downturn, in short, runs the risk of starting a self-reinforcing cycle of credit and business contraction. The rise of private equity in its present form, then, appears to be another step towards the pre-New Deal world of inequality and instability.

And don’t forget about the role of private equity in influencing our political process. Blackstone billionaire Pete Peterson helped fuel concerns about government spending, while doing very little to advocate for increased taxes on the wealthy. And now we see that the CLASS Act—an innovative program to promote full funding for future long-term-care in the US–is likely to be on the chopping block. The primary value of both care homes and care plans to P/E firms appears to be their susceptibility to rapid sales and purchases. The P/E firm’s employees can earn massive bonuses if the value of entities goes up, and can’t lose those bonuses even if things eventually fall apart. It is a heads they win, tails they win scenario. The losers include all the other stakeholders in firms which are treated primarily as ATMs for fleeting owners.

 

Position Opening: Garwin Distinguished Visiting Professor of Law and Medicine

The Southern Illinois University School of Law is seeking nominations and applications for the Garwin Distinguished Visiting Professor of Law and Medicine for the 2012-13 academic year.  Established in 1996, the Garwin Professorship is funded in part by a grant from the Garwin Family Foundation which was established in 1993 for the purposes of fostering education and academic research.  Support for the position includes a competitive salary, benefits, travel allowance, housing for one year, and a research assistant.

With 35 faculty members and approximately 350 students, the Southern Illinois University School of Law enjoys one of the best student-faculty ratios of any law school in the country.  The School, and it's Center for Health Law and Policy (established in 2004), offer an outstanding health law program with a variety of courses as well as co-curricular and extra-curricular activities.  This includes a unique M.D./J.D. dual degree program offered in conjunction with the SIU School of Medicine. The School of Law also offers an LL.M. in Health Law and Policy, as well as a Masters of Legal Studies in Health Law and Policy. In conjunction with the American College of Legal Medicine, the School of Law participates in the publication of the Journal of Legal Medicine (since 1981) and Legal-Medical Perspectives (since 2000). The School also hosts each year (since 1992) the National Health Law Moot Court Competition, the only national competition focusing on health law issues. Since 1999, the School has also sponsored the annual SIH/SIU Health Policy Institute. Additionally, beginning in 2006, the School of Law has hosted each spring the John and Marsha Ryan Bioethicist in Residence.

Minimum Qualifications:  Applicants must possess the Juris Doctor degree or its equivalent from a nationally-accredited law school, be currently on the faculty of an accredited school of law or other graduate professional school, and have an outstanding national reputation as a health law/policy scholar and teacher.  Factors to be considered in assessing candidates for the Garwin Visiting Professorship include the following: scholarly and teaching record, honors received (e.g. awards, fellowships, etc.), participation and leadership in national and international organizations, letters of recommendation and other factors relevant to assessing qualifications for this position.

Areas of Concentration: Health law and policy including without limit any of the following – medical malpractice, food and drug law, public health law, and bioethics and the law, and possibly in the area of torts. Duties & Responsibilities:  (a) classroom instruction; (b) research and publication involving legal analysis of a high quality; (c) a public lecture. Deadline for application: October 15, 2011 or until position is filled.

To apply or nominate a candidate:  Applications may be submitted electronically at http://law.siu.edu/employment or by U.S. mail.  A completed application will require a letter of application, a resumé, and the contact information for three references.  The letter should be addressed to:

Professor W. Eugene Basanta, Chair, Garwin Visiting Professor Search Committee, Southern Illinois University School of Law, Mail code 6804, 1150 Douglas Drive,Carbondale, Illinois  62901

Applications and nominations may be submitted on line at http://www.law.siu.edu/employment/.

SIUC is an affirmative action/equal opportunity employer that strives to enhance its ability to develop a diverse faculty and staff and to increase its potential to serve a diverse student population.  All applications are welcomed and encouraged and will receive consideration. 

Guest Blogger Eleanor D. Kinney: Greetings from Puerto Vallarta!!

  El 18 de Julio

 

 

There is a country south of the border – the United Mexican States – with a per capita GNP less than one- third that of the United States (See Figure 1).  Yet that country, Mexico, has committed to universal health coverage for all its citizens as a matter of right.  With amendments of 2003, the Mexican constitution recognizes a constitutional right to health and health care.  Further, Mexico has adopted many of the international and regional human rights treaties that recognize an international human right to health (U. Minn).

 

 

The Mexican Constitution of 1917 (as amended to 2003) has two provisions regarding health and health care in its con­stitution. Constitución Política de los Estados Unidos Mexicanos [Constitution], as amended, Diario Oficial de la Federación [D.O], art. 4, 5 de Febrero de 1917 (Mex.).  One provision establishes a “right to health protec­tion” and sets forth what subordinate federal statutory law will authorize: 

Every person has the right to health protection. The law will describe the basis and means for access to health care services and will establish the concurrence of the Fed­eration and the federative entities in matters of public health. Boys and girls have the right to satisfy their nutrition, health, and education needs and for healthy recreation for their total development.

Figure 1 Relevant Statistical Indicators for the United States, Canada and Mexico
	Per capita GDP 2010*		Per Capita Health Expenditures, 2007**
	$s	Rank	$s	% of GDP	Rank
Mexico	15,224	47th	823	5.9	29th
United States	47,084	6th	7,290	16.0	1st
Canada	39,699	10th	3,895	10.1	5th
Sources:   *World Bank Group, 2010 **Organization for Economic Cooperation and Development, 2007

As discussed in my last blog entry, the Mexican Congress amended the Ley General de Salud to establish the System for the Social Protection in Health (SPSS) to establish the Seguros Popular for Mexico’s uninsured.  Ley General de Salud [The General Law of Health], as amended, art. 18, Diario Oficial de la Federación [D.O.], 7 de Febrero de 1984 (Mex).  The Seguros Popular initiative includes a universal health insurance scheme called the System for Social Protection in Health (SSPS). The health insurance scheme is financed jointly by the federal government, the states and higher income enrollees.

SSPS covers an essential package of personal health services for low risk, high probability illnesses and injuries. The services include ambulatory primary care and hospitalization for secondary care. The package of essential services is covered by funds at the state level. For the most part, services are provided through a network of providers who work for the state and federal public health sectors. The package of catastrophic interventions includes low-probability, high cost illnesses and injuries including cancers, cardiovascular disease, stroke, severe injuy and HIV-AIDS. Covered services include long-term rehabilitation, neo-natal intensive-care, organ transplantation, and dialysis. These tertiary care services are more limited and funded at the federal level.    (See F. Knaul and H. Arreola 2006).

With implementation starting in January 2004, the a seven year transition period during which SP will be offered on a progressive and voluntary basis to all Mexicans who are not already enrolled one of Mexico’s social insurance institutions. The aim was to have universal coverage in Mexico by 2012. There has been much progress in achieving this goal.  This progress and other aspects of the SSPS and SP are detailed on the website of the Comisión Nacional de Protección Social en Salud and the commission’s annual reports.  (See Comisión Nacional de Protección Social en Salud, Informe de Resultado del Segundo Semestre de 2009 (2009).

Before the Seguros Popular, more than 50 percent of Mexico’s population was uninsured (Knaul et. al., 2003).  Half of the Mexican population was at risk for catastrophic out of pocket medical costs and very limited access to health care services. The express purpose of Seguro Popular was to address this access problem for the poorest members of Mexican society. 

The big question for Seguros Popular generally and SSPS in particular is whether Mexico will be able to carry them off over the long term. The goal of extending coverage seems to be quite achievable. The real question will be if these coverage expansions can be absorbed by the Mexican health care sector and, in particular, the public provider network that serves the informal worker sector?  Also, can they be absorbed without unduly raising the cost of health care services in Mexico?  Finally, with the care provided under the initiative be of high quality? Fortunately, the Comisión Nacional de Protección Social en Salud is well aware of these issues and have been careful to evaluate coverage expansions and other aspects of the initiative.  

It is most interesting compare Mexico to its Northern neighbors, the United States and Canada. Clearly Mexico is more attuned to Canada with its guarantee of health coverage as a matter of right. Seemingly absent from the Mexican experience is the discussion of “government takeovers” of health care and concerns that government sponsored health bill bankrupt the country. One gets the sense that the Mexican government and the people of Mexico believe that health coverage for all people is important a country’s development and are willing to put universal coverage as a national priority.  

Hasta la Vista! 

 Eleanor D. Kinney

 

Electricty Rate Hikes Weighed Against Disease Prevention

The Environmental Protection Agency is finalizing two Clean Air Act regulations.  The Cross-State Air Pollution Rule requires 27 states to improve air quality by reducing power plant emissions that contribute to ozone and/or fine particle pollution. The Power Plant Mercury and Air Toxics Rule will limit mercury, acidic gases and other toxic pollution emanating from power plants, keeping 91 percent of the mercury in coal from being released to the air. Currently, there are no national limits on the amount of mercury and other toxic air pollution released from power plant smokestacks.

 Many operators of older power plants are lobbying for exemptions to the rules, as reported in yesterday’s Environment and Energy Daily newsletter. Out in front of this effort is the National Association of Regulatory Utility Commissioners (NARUC), who is meeting next week to consider passing a resolution (available here on Page 20) that would call on Congress for more flexibility in implementing the rules.

The American Lung Association, American Public Health Association, Asthma and Allergy Foundation of America and Physicians for Social Responsibility Trust for America’s Health is urging NARUC in a letter sent last week to reject taking this stance, claiming the rules will prevent asthma, heart attacks and premature deaths.

As suggested some of my previous postings, Congress has been very sympathetic to industry’s claims about the economic burdens of pollution regulations, with several proposals on the table to weaken or delay them. It is a values discussion couched in cost benefit calculations: how much does the prevention of premature deaths or asthma benefit society in dollars, so that it can be compared to the monetary costs of higher electricity rates in areas served by older plants? If Congress steps in to delay the rules, it would be helpful if the proponents explicitly discussed those trade-offs, but they rarely do.

[MM]