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Published online by Cambridge University Press: 06 January 2021
There has been great debate about the potential labor market impact of the Affordable Care Act (“ACA” or “Obamacare”). Some have pointed to Massachusetts as the harbinger of what is to come nationally, while others have predicted massive dumping of employer-based insurance. An extension of this labor market debate was on full display during the summer of 2012. Critics seized on a McKinsey & Co. survey that found that Obamacare could result in thirty percent of companies dropping employer-sponsored insurance (ESI). Meanwhile, proponents of the ACA quickly and continually referred to the experience of companies in Massachusetts as a way to push back on this narrative.
Surprisingly, there is bipartisan agreement that Massachusetts’s own health reform efforts (“Romneycare”) does in fact serve as an accurate model for what to expect under the federal law: this has complicated a lucid discussion of the ACA’s potential labor market impact.
1 Jonathan Gruber, MIT Professor & Insurance Advisor to President Obama, debate with Douglas Holtz-Eakin at the Pioneer Institute's 2011 Hewitt Healthcare Lecture: The Budgetary Impact of Federal Healthcare Reform (May 16, 2011), available at http://vimeo.com/21114715.
2 Sharon Begley, Millions of Workers Might Dump Employer Plans Under Obamacare: Study, REUTERS (Sept. 9, 2013), http://www.reuters.com/article/2013/09/09/us-usa-healthcare-employersidUSBRE98816820130909.
3 See, e.g., Jonathan Gruber, The Impacts of the Affordable Care Act: How Reasonable Are the Projections? 7-13 (Nat’l Bureau of Econ. Research, Working Paper No. 17168), available at http://economics.mit.edu/files/6829; Julie Rovner, McKinsey Stands by Contested Health Insurance Survey, NAT’L PUB. RADIO (June 20, 2011, 6:42 PM), http://www.npr.org/blogs/health/2011/06/21/137306986/mckinsey-stands-by-contested-healthinsurance-survey.
4 Rovner, supra note 3.
5 Gruber, supra note 3, at 8-13.
6 Mark Koba, Want a Glimpse of Obamacare? Look at Massachusetts, CNBC (May 9, 2013), http://www.cnbc.com/id/100723888.
7 Lucy Madison, Haley Barbour Slams “Romneycare” at Health Care Hearing, CBS NEWS (Mar. 1, 2011), http://www.cbsnews.com/news/haley-barbour-slams-romneycare-at-health-care-hearing/.
8 Stephanie Condon, Obama Team Celebrates Anniversary of Romney's Health Care Law , CBS NEWS (Apr. 12, 2012), http://www.cbsnews.com/news/obama-team-celebrates-anniversary-ofromneys-health-care-law/.
9 Gruber, supra note 1.
10 Gruber, supra note 3, at 8.
11 Jesse Lee, Early Affordable Care Act Enrollment & the Massachusetts Experience, WHITE HOUSE BLOG (Nov. 1, 2013), http://www.whitehouse.gov/blog/2013/11/01/early-affordable-care-actenrollment-massachusetts-experience.
12 Steve Contorno, Localities Split on Providing Health Care Benefits for Part -Time Workers, WASH. EXAM’R (Feb. 14, 2013), http://washingtonexaminer.com/localities-split-on-providing-healthbenefits-for-part-time-workers/article/2521655.
13 CONG. BUDGET OFFICE, CBO AND JCT [JOINT COMMITTEE ON TAXATION]'s ESTIMATES OF THE EFFECTS OF THE AFFORDABLE CARE ACT ON THE NUMBER OF PEOPLE OBTAINING EMPLOYMENTBASED HEALTH INSURANCE 2 (March 2012), available at http://cbo.gov/sites/default/files/cbofiles/attachments/03-15-ACA_and_Insurance_2.pdf.
14 Subsequent personal conversations with former CBO staffers have confirmed that at the t ime the ACA was being debated in Washington in 2010, it was widely believed that Massachusetts could serve as a strong predictive model for expected labor market trends. Id.
15 Josh Archambault, Does Massachusetts Predict Employer Behavior Under Obamacare? Probably Not: Part 1, FORBES (Jan. 30, 2013), http://www.forbes.com/sites/aroy/2013/01/30/doesmass-predict-employer-behavior-under-obamacare-probably-not-and-5-reasons-why-part-1/.
16 Id.
17 The Joint Committee on Taxation also estimated that fourteen million residents would be receiving subsidies by 2020. STAFF OF COMM. ON OVERSIGHT & GOV't REFORM, 112TH CONG., REP. ON UNCOVERING THE TRUE IMPACT OF THE OBAMACARE TAX CREDITS: INCREASES THE DEFICIT, EXPANDS WELFARE THROUGH THE TAX CODE, AND IMPLEMENTS A NEW MARRIAGE TAX PENALTY 6 (2011) [hereinafter STAFF OF COMM. ON OVERSIGHT & GOV't REFORM, UNCOVERING THE TRUE IMPACT], available at http://oversight.house.gov/wp-content/uploads/2012/02/10-27-11_Obamacares_Subsidies_and_Tax_Distribution_Final.pdf.
18 CONG. BUDGET OFFICE, THE BUDGET AND ECONOMIC OUTLOOK: FISCAL YEARS 2012 TO 2022 52 (2012), available at http://www.cbo.gov/sites/default/files/cbofiles/attachments/01-31-2012_Outlook.pdf.
19 CONG. BUDGET OFFICE, AN UPDATE TO THE BUDGET AND ECONOMIC OUTLOOK: FISCAL YEARS 2012 TO 2022 43 (2012), available at http://www.cbo.gov/sites/default/files/cbofiles/attachments/43539-08-22-2012-Update_One-Col.pdf.
20 STAFF OF COMM. ON OVERSIGHT & GOV't REFORM, UNCOVERING THE TRUE IMPACT, supra note 17, at 3.
21 Romina Boccia et al., Federal Spending by the Numbers, 2013, HERITAGE FOUND. (Aug. 20, 2013), http://www.heritage.org/research/reports/2013/08/federal-spending-by-the-numbers-2013.
22 DOUGLAS HOLTZ-EAKIN & CAMRON SMITH, AM. ACTION FORUM, LABOR MARKETS AND HEALTH CARE REFORM: NEW RESULTS 3 (2010) available at http://americanactionforum.org/sites/default/files/OHC_LabMktsHCR.pdf.
23 Josh Archambault, Part 2: Does Massachusetts Predict Employer Behavior Under Obamacare? Probably Not, FORBES (Jan. 31, 2013), http://www.forbes.com/sites/aroy/2013/01/31/part-2-does-massachusetts-predict-employer-behaviorunder-obamacare-probably-not/ [hereinafter Archambault, Forbes: Part 2].
24 Letter from Douglas W. Elmendorf, Dir., Cong. Budget Office, to Nancy Pelosi, Speaker, U.S. House of Reps. (Mar. 20, 2010), available at http://www.cbo.gov/sites/default/files/cbofiles/ftpdocs/113xx/doc11379/amendreconprop.pdf.
25 HOLTZ-EAKIN & SMITH, supra note 22, at 3.
26 An Act Providing Access to Affordable, Quality, Accountable, Health Care, 2006 Mass. Acts 110, ch. 58 § 42(6C).
27 Since Romneycare was a state-based law, the legislature was limited in the scope and scale of what they could regulate and impact through state law. For example, they were unable to change the tax preference granted to employer-based insurance, mandate change in the federally-run Medicare program, or propose changes to coverage of large employers that are self -insured and are subject to federal regulation.
28 See 2006 Mass. Acts 110, ch. 58 § 42(6C).
29 AMY M. LISCHKO ET AL., COMMONWEALTH FUND, THE MASSACHUSETTS COMMONWEALTH HEALTH INSURANCE CONNECTOR: STRUCTURE AND FUNCTIONS 4 (2009) available at http://www.commonwealthfund.org/∼/media/Files/Publications/Issue%20Brief/2009/May/Issue%20Brief.pdf.
30 Archambault, Forbes: Part 1, supra note 15; see also MASS. DEP't OF TRANSP., MASSACHUSETTS DEPARTMENT OF TRANSPORTATION FREIGHT PLAN 3-11 fig. 10 (2010), http://www.massdot.state.ma.us/portals/17/docs/freightplan/03TrendsFutureConditions110110TOCv2.pdf.
31 Amy Lischko & Josh Archambault, evaluating the Massachusetts Experiment: The Data, in THE GREAT EXPERIMENT 146 (Pioneer Inst. 2012) (published in limited quantities by the Pioneer Institute).
32 Some of this loss of ESI could also be attributed to the poor economy in 2008 and 2009.
33 CTRS. FOR MEDICARE & MEDICAID SERVS., EMPLOYER-SPONSORED COVERAGE BACKGROUND AND FAQS FOR THE HEALTH INSURANCE MARKETPLACE 1, available at http://marketplace.cms.gov/getofficialresources/training-materials/background-and-faqs-on-employersponsored-coverage.pdf (last visited Apr. 8, 2014).
34 Archambault, Forbes: Part 1, supra note 15.
35 KAISER FAMILY FOUND., STATE HEALTH FACTS, DISTRIBUTION OF THE TOTAL POPULATION BY FEDERAL POVERTY LEVEL (ABOVE AND BELOW 400% FPL) (2012), available at http://kff.org/other/state-indicator/population-up-to-400-fpl/.
36 In states that have not expanded Medicaid, there will be an income window under which government subsidized insurance is not offered. This includes those making an income lower than 100% FPL but above current Medicaid eligibi lity in that state. However, individuals are able to obtain subsidies if they claim an income level higher than 100% FPL.
37 Editorial, Rahm's ObamaCare Brainstorm, WALL ST. J. (Jan. 25, 2013), http://online.wsj.com/news/articles/SB10001424127887323968304578245702495382788 (login required).
38 Id.
39 MASS. EXEC. OFFICE FOR ADMIN. & FIN., EXPANDING ACCESS TO AFFORDABLE, QUALITY HEALTH CARE, available at http://www.mass.gov/bb/h1/fy14h1/exec_14/hbudbrief3.htm (last visited May 3, 2014).
40 See RICHARD BURKHAUSER ET AL., EMP't POLICIES INST., AN OFFER YOU CAN't REFUSE, ESTIMATING THE COVERAGE EFFECTS OF THE 2010 AFFORDABLE CARE ACT (2011), available at http://epionline.org/studies/110715_EPI_AnOfferYouCantRefuse_Final.pdf.
41 Id.
42 STAFF OF COMM. ON OVERSIGHT & GOV't REFORM, UNCOVERING THE TRUE IMPACT, supra note 17, at 12-13 (internal citations omitted).
43 STEPHANIE RENNANE & C. EUGENE STEUERLE, URBAN INST., HEALTH REFORM: A FOURTRANCHE SYSTEM (UPDATED AND REVISED) (2011), available at http://www.urban.org/tables/901408-Health-Reform-Four-Tranches.pdf.
44 Sharon Begley, Millions of Workers Might Dump Employer Plans Under Obamacare: Study, REUTERS (Sep. 9, 2013), http://www.reuters.com/article/2013/09/09/us-usa-healthcare-employersidUSBRE98816820130909.
45 Brianna Ehley, More Companies Dump Employee Insurance for Obamacare, FISCAL TIMES (Jan. 23, 2014), http://www.thefiscaltimes.com/Articles/2014/01/23/More-Companies-Dump-Employee-Insurance-Obamacare.
46 MASS. DIV. HEALTH CARE FIN. & POLICY, MASS. EMPLOYER SURVEY 2010 6 (2011), available at http://www.mass.gov/chia/docs/r/pubs/11/mes-results-2010.pdf.
47 Rachel Zimmerman, Mass. ‘Culture of Coverage’ Is Key to Near-Universal Children's Health Insurance, COMMONHEALTH: REFORM & REALITY (Jan. 19, 2012), http://commonhealth.wbur.org/2012/01/mass-culture-of-coverage-is-key-to-insured-children.
48 James Cronin, Exporting Romneycare: Who Are the Winners and Losers as Health Reform Goes National?, BOSTON GLOBE (Oct. 13, 2013), https://www.bostonglobe.com/magazine/2013/10/12/who-are-winners-losers-health-reform-goesnational/M3OMovvf1OkbHLMnYIhgjP/story.html.
49 See MASS. DEP't OF TRANSP., supra note 30 at 3-11 fig. 10.
50 Employer-Sponsored Coverage Rates for the Nonelderly by Age, KAISER FAMILY FOUND., http://kff.org/other/state-indicator/rate-by-age-2/ (last visited May 3, 2014).
51 Id.
52 See Archambault, Forbes: Part 1, supra note 15.
53 See id.
54 See U.S. CENSUS BUREAU, ANNUAL SOCIAL & ECONOMIC SUPPLEMENTS, Table H-8: Median Household Income by State: 1984 to 2012, http://www.census.gov/hhes/www/income/data/historical/household/2012/H08_2012.xls (last visited May 3, 2014).
55 Ian Duncan & Ryung Suh, The Affordable Care Act, in MASSACHUSETTS HEALTH INSURANCE REFORM: PROMISE AND RESULTS (forthcoming) (on file with author).
56 Id.
57 STATE HEALTH FACTS, supra note 35.
58 Duncan & Suh, supra note 55, at 12-13.
59 Id. at 4, 12.
60 An Act Providing Access to Affordable, Quality, Accountable, Health Care, ch. 58, § 47(188)(b), 2006 Mass. Acts 77.
61 AUDREY GASTEIER, MASS. DIV. HEALTH CARE FIN. & POL’Y, ANALYSIS IN BRIEF: EMPLOYERS AND MASSACHUSETTS HEALTH REFORM 3 (2009), available at http://www.mass.gov/chia/docs/r/pubs/10/mes-aib-2009.pdf.
62 Id.
63 Id. at 2.
64 Archambault, Forbes: Part 2, supra note 23.
65 See id.
66 See generally Jonathan Gruber, MIT Professor & Insurance Advisor to President Obama, debate with Douglas Holtz-Eakin at the Pioneer Institute's 2011 Hewitt Healthcare Lecture: The Budgetary Impact of Federal Healthcare Reform (May 16, 2011), available at http://vimeo.com/21100075.
67 MASS. DIV. HEALTH CARE FIN. & POLICY, MASS. EMPLOYER SURVEY 2010 supra note 46, at 18.
68 See Archambault, Forbes: Part 1, supra note 15.
69 Archambault, Forbes: Part 2, supra note 23.
70 Id.
71 Id.
72 Id.
73 The penalty is $3,000 annually for each full-time employee receiving a tax credit, up to a maximum of $2,000 times the number of full-time employees minus 30. The penalty is increased each year by the growth in insurance premiums. The $2,000 penalty is equal to a $3,046 cut in wages.
74 Average Family Premium per Enrolled Employee for Employer-Based Health Insurance, KAISER FAMILY FOUND., http://kff.org/other/state-indicator/family-coverage/ (last visited May 12, 2014).
75 Casey B. Mulligan, In Massachusetts We Trust, N.Y. TIMES (Feb. 27, 2013), http://economix.blogs.nytimes.com/2013/02/27/in-massachusetts-wetrust/?_php=true&_type=blogs&_php=true&_type=blogs&_r=1 [hereinafter Mulligan, In Massachusetts We Trust].
76 According to Mulligan, “[b]ecause the employer penalty is contingent on a person's work status and hours worked, it has many of the economic characteristics of payroll taxes –at least for the purposes of quantifying incentives to work.” Casey Mulligan, Is the Affordable Care Act Different from Romneycare? A Labor Economics Perspective 5 (NBER, Working Paper No. 19366, 2013), available at http://www.nber.org/papers/w19366 [hereinafter Mulligan, Different from Romneycare?]. Massachusetts employers would not feel the pain of their state's penalty as much as employers under the ACA. Id.
77 Casey Mulligan, Romneycare, Obamacare, and the Labor Market, SUPPLY & DEMAND (IN THAT ORDER) (May 9, 2013, 7:41 AM), http://caseymulligan.blogspot.com/2013/05/romneycareobamacare-and-labor-market.html [hereinafter Mulligan, Romneycare, Obamacare].
78 Casey Mulligan, Health Reform, the Reward to Work and Massachusetts, N.Y. TIMES BLOG (Mar. 6, 2013, 6:00 AM), http://economix.blogs.nytimes.com/2013/03/06/health-reform-the-rewardto-work-and-massachusetts/?_php=true&_type=blogs&_r=0 [hereinafter Mulligan, Health Reform].
79 See McDonough, John E. et al., The Third Wave of Massachusetts Health Care Access Reform, 25 HEALTH AFF. w420, w420 (2006)CrossRefGoogle ScholarPubMed, http://content.healthaffairs.org/content/25/6/w420.full.html (noting that Romneycare is the third major healthcare reform act in Massachusetts since 1988).
80 Id. at w426.
81 MASS. DIV. HEALTH CARE FIN. & POLICY, supra note 46, at 3.
82 See ‘Romneycare’ Facts and Falsehoods, ANNENBURG PUB. POLICY CTR. (Mar. 25, 2011), http://www.factcheck.org/2011/03/romneycare-facts-and-falsehoods/.
83 Lischko, Amy et al., The Massachusetts Commonwealth Health Insurance Connector, Structure and Functions, 55 COMMONWEALTH FUND 1, 11 (2009)Google ScholarPubMed, http://www.commonwealthfund.org/∼/media/Files/Publications/Issue%20Brief/2009/May/Issue%20Brief.pdf.
84 Individual Market Guaranteed Issue (Not Applicable to HIPAA Eligible Individuals) , KAISER FAMILY FOUND., http://kff.org/other/state-indicator/individual-market-guaranteed-issue/ (last visited May 18, 2014).
85 Chris Conover, No, Obamacare is Not a Good Deal for Young People in the Long Run, Not Even Close, FORBES (Aug. 23, 2013), http://www.forbes.com/sites/theapothecary/2013/08/23/noobamacare-is-not-a-good-deal-for-young-people-in-the-long-run-not-even-close/.
86 Robert Seifert & Stephanie Anthony, The Basics of MassHealth, MASS. MEDICAID POL’Y INSTITUTE 1, 1 (Feb. 2011), available at http://www.umassmed.edu/uploadedFiles/CWM_CHLE/Included_Content/Right_Column_Content/MassHealth%20Basics%202011-FINAL.pdf.
87 Casey Mulligan has noted that Romneycare also placed an implicit tax on unemployment insurance:
[u]nemployment insurance (UI) is a major safety net program, and the benefits paid by the UI program are implicitly taxed by Romneycare because UI benefits are part of the household income that determines a household's assistance with health insurance premiums. In particular, persons laid off from a non-ESI job before Romneycare would find their UI benefits taxed at normal marginal personal income tax rates but under Romneycare those marginal rates jump about 10 percentage points for CommCare participants as a result of CommCare's “sliding scale” premium assistance. For someone receiving $1,462 per month in UI benefits – about the average among UI-eligible persons with earnings potential near the Massachusetts median – that's an extra $155 per month in taxes.
Mulligan, Different from Romneycare?, supra note 76, at 16.
88 STAFF OF COMM. ON OVERSIGHT & GOV't REFORM, UNCOVERING THE TRUE IMPACT, supra note 17, at 14.
89 Id.
90 Mulligan, Different from Romneycare?, supra note 76, at 7.
91 See Casey Mulligan, Health Care Inflation and the Arithmetic of Labor Taxes, N.Y. TIMES BLOG (Aug. 7, 2013, 12:01 AM), http://economix.blogs.nytimes.com/2013/08/07/health-careinflation-and-the-arithmetic-of-labor-taxes/.
92 Id.
93 Id.
94 Id. at 1.
95 Josh Archambault, Impact of the Federal Health Law's “Cadillac Insurance Tax” in Massachusetts, PIONEER INST. (Oct. 5, 2012), http://pioneerinstitute.org/download/impact-of-thefederal-health-laws-cadillac-insurance-tax-in-massachusetts/ [hereinafter Archambault, Impact].
96 Patient Protection and Affordable Care Act of 2010, Pub. L. No. 111-148, 124 Stat. 119, amended by Health Care and Education Reconciliation Act of 2010, Pub. L. No. 111-152, 124 Stat. 1029 (2012). The threshold will increase annually in conjunction with inflation. In addition, the annual thresholds described above increase by $1,650 in the case of self -only coverage and $3,450 in the case of self and spouse or family coverage for retirees not entitled to Medicare benefits and individuals engaged in high-risk professions.
97 Id.
98 The CBO projects that the excise tax will also have indirect impacts on taxes. On page 21 of their latest scoring report, an additional line includes $231 billion in other effects on revenues, which are at least partially due to more taxes being paid by employers paying less in tax-preferred health benefits and more in taxable income. CONG. BUDGET OFFICE, ESTIMATES FOR THE INSURANCE COVERAGE PROVISIONS OF THE AFFORDABLE CARE ACT UPDATED FOR THE RECENT SUPREME COURT DECISION (2012), available at http://www.cbo.gov/sites/default/files/cbofiles/attachments/43472-07-24-2012-CoverageEstimates.pdf.
99 Press Release, Mercer Consulting, US Employer Health Plan Enrollment Up 2 Percent Under PPACA's Dependent Eligibility Rule (Aug. 1, 2011), available at http://www.mercer.com/pressreleases/1421820.
100 Jonathan Gruber, supra note 1.
101 Id.
102 Id.
103 Archambault, Forbes: Part 2, supra note 23.
104 Archambault, Impact, supra note 95.
105 Id.
106 Mulligan, Different from Romneycare?, supra note 76, at 18.
107 Id.
108 Id. at 18.
109 Id. at 13.
110 Casey Mulligan, Average Marginal Labor Income Tax Rates under the Affordable Care Act 32 (NBER, Working Paper No. 19365, 2013), available at http://www.nber.org/papers/w19365.
111 Id. at 18.
112 Id.
113 Id.
114 Id. at tbl. 2.
115 Mulligan, Different from Romneycare?, supra note 76, at 5.
116 Id. at 19.
117 Id. The Author's following explanations of the table have been adapted from conclusions and analysis in Mulligan's article, supra note 77, passim. Row 1: The employer penalties under Romneycare and ACA diverge: $295 versus $2,000, respectively. Overa ll, the ACA employer penalty is 12 times more impactful, as the one in the Commonwealth the penalty can be deducted from any tax burden, but cannot be under the ACA. In addition, the Massachusetts penalty will not be skirted by shifting more workers to part-time. Row 2: Both Romneycare and the ACA create a five-six dollars per month work disincentive, due to their individual mandate relief. Row 3 and 4: Both Romneycare and the ACA have effects due to individuals “sliding along” and “jumping onto” the sliding income scale for health insurance assistance. Both can create work disincentive, but under the ACA it is much larger than under Romneycare. In both cases, the ACA has roughly twice the impact because the subsidy is larger. The incentive to participate under the ACA and slide along the scale is more than twice as large as Romneycare's because Massachusetts was only providing new subsidies to households earning 150 - 300% FPL. However, under the ACA, subsidies are being newly offered to those earning between 100- 400% FPL. Yet, the most glaring difference between the laws is the incentive of jumping onto the assistance scale. Under Romneycare the insurance assistance only kicks in after other forms of assistance for Massachusetts workers leaving ESI jobs. By contrast, under the ACA the subsidies appear much greater for someone leaving a job offering ESI. Row 5: Under Romneycare, expanding Medicaid was/is the only area under which the contribution to marginal tax rate was greater than under the ACA. Yet, the four dollar per month average impact is relatively small given that the expansion only affected a very small group of the population in the Bay State. Row 8: At a high level, the ACA adds 12 times more dollars to work disincentives for an individual than Romneycare. Row 9: As a percentage of total compensation the impact of the ACA on income will be 13 times more than under the Massachusetts law. It should be noted that compensation in somewhat greater in the Commonwealth than the national average. The impact is much greater for a few reasons: 1) Participation rates will be higher under the ACA, 2) The generosity or cost per individual will be higher under the ACA, 3) The ACA is expected to impact a much wider proportion of the population under the ACA. These factors will directly alter work incentives for a large fraction of the United States’ population and have a different impact than Romneycare did in Massachusetts.
118 Id.
119 Id. at 20.
120 Id. at 21. He further clarifies:
Assistance programs available to help people without work or otherwise with low incomes can be summarized by measuring the combined value of benefits available to a person who does not work, less taxes paid, and comparing it to the net of tax value of benefits available to the same person if he or she were working. The difference between the two combined values is the causal effect of working of the value of benefits available. The more that working reduces the net of tax value of available benefits, the more the programs have reduced the reward to working.
Id.
121 Ian Duncan & Ryung Suh, supra note 56.
122 Id.
123 Douglas Holtz-Eakin & Cameron Smith, Labor Markets and Health Care Reform: New Results, AM. ACTION FORUM (May 27, 2010), http://americanactionforum.org/sites/default/files/OHC_LabMktsHCR.pdf (discussing the portion of PPACA funding devoted to federal subsidies and the projected increase in subsidies by 2018).