Oil and water: Mixing individual mandates, fragmented markets, and health reform

American Journal of Law and Medicine

Volumn 36, Issue 1, 2010, Pages 7-77

  Hoffman, Allison K ^a  

^a HARVARD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; HEALTH CARE COST; HEALTH CARE POLICY; HEALTH INSURANCE; HUMAN; INSURANCE; LEGAL ASPECT; MANDATORY PROGRAM; NONBIOLOGICAL MODEL; ORGANIZATION AND MANAGEMENT; PATERNALISM; SOCIAL JUSTICE; UNITED STATES;

EFFICIENCY, ORGANIZATIONAL; HEALTH CARE REFORM; HEALTH CARE SECTOR; HUMANS; INSURANCE, HEALTH; MANDATORY PROGRAMS; MODELS, ORGANIZATIONAL; PATERNALISM; SOCIAL JUSTICE; UNITED STATES; UNIVERSAL COVERAGE;

EID: 77953639908     PISSN: 00988588     EISSN: None     Source Type: Journal    
DOI: 10.1177/009885881003600101     Document Type: Article

References (541)

1. th Century politics. Efforts began in the Progressive Era, when the American Association for Labor Legislation introduced legislation requiring insurance for all workers. President Franklin Roosevelt proposed national health insurance in 1934, but dropped it in response to resistance by medical professionals. President Truman rekindled the push for national insurance in 1945, which resulted in Medicare and Medicaid under President Johnson in 1965. Recently, the Clinton administration made a famous failed attempt at health reform in the 1990s.
2. See Paul Starr, What Happened to Health Care Reform?, 20 THE AMERICAN PROSPECT 20 (1995) (an analysis of the Clinton administration's health reform failure). For discussion of the history of health reform
3. see TOM DASCHLE ET AL., CRITICAL: WHAT WE CAN DO ABOUT THE HEALTH CARE CRISIS 49-51 (2008);
4. Theodore R. Marmor & Jonathan Oberlander, Paths to Universal Health Insurance: Progressive Lessons from the Past for the Future, 2004 U. ILL. L. REV 205 (2004).
5. On March 23, 2010, President Barak Obama signed into law the Patient Protection and Affordable Care Act, Pub. L. No. 111-148 (2010), available at http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=lll-cong- bill&docid=f:h3590eas.txt.pdf (last accessed Feb. 14, 2010).
6. The final health reform act will almost certainly include a companion bill, The Health Care and Education Reconciliation Act of 2010, H. R. 4872, which was passed by both the Senate and House on March 25, 2010. At times throughout this draft, I refer to the House Bill, the Affordable Health Care for America Act, H. R. 3962, 111th Cong. § 501 (2009), which the House passed on November 7, 2009 and was superseded by the Senate version of legislation that was enacted into law, available at http://thomas.loc.gov/cgibin/query/z?clll:H. R.3962: (last accessed February 14, 2010).
7. 2006 MASS. ACTS CHAPTER 58, An Act Providing Access to Affordable, Quality, Accountable Health Care, MASS. GEN. LAWS CH. 111M, § 2 (2008) [HEREINAFTER CHAPTER 58].
8. See, e.g., REPUBLICAN STUDY COMM., RSC POLICY BRIEF: AN INDIVIDUAL MANDATE TO PURCHASE HEALTH INSURANCE 2-4 (2008);
9. LINDA BLUMBERG & JOHN HOLOHAN, URBAN INST., DO INDIVIDUAL MANDATES MATTER? 1-3 (2008);
10. Sherry A. Glied et al., Consider It Done? The Likely Efficacy of Mandates for Health Insurance, 26 HEALTH AFF. 1612, 1615 (2007);
11. Jonathan Gruber, Covering the Uninsured in the U. S., 46 J. ECON. LIT. 571, 601 (2008) (analyzing approaches to health reform and making budgetary efficiency targeting argument for mandates);
12. David A. Hyman, The Massachusetts Health Plan; The Good, the Bad, and the Ugly, 55 U. KAN. L. REV. 1103, 1111 (2006);
13. Peter D. Jacobson & Rebecca L. Braun, Let 1000 Flowers Wilt: The Futility of State-Level Health Care Reform, 55 U. KAN. L. REV. 1173 (2007) (summarizing past state efforts at reform with an emphasis on discussion of individual and employer mandates);
14. Timothy Stoltzfus Jost, The Massachusetts Health Plan: Public Insurance for the Poor, Private Insurance for the Wealthy, Self-Insurance for the Rest, 55 U. KAN. L. REV. 1091 (2007) (arguing that the MA plan results in three tiers of health insurance);
15. Alan B. Krueger & Uwe E. Reinhardt, The Economics of Employer Versus Individual Mandates, 13 (2) HEALTH AFF. 34, 40 (1994);
16. C Eugene Steuerle, Implementing Employer and Individual Mandates, 13 (2) HEALTH AFF. 54 (1994) (discussing administrative challenges in terms of collection and enforcement);
17. MICHAEL TANNER, CATO INST., INDIVIDUAL MANDATES FOR HEALTH INSURANCE: SLIPPERY SLOPE TO NATIONAL HEALTH CARE (2006);
18. GLEN WHITMAN, Hazards of the Individual Health Care Mandate, CATO POLICY REPORT, SEPT./OCT. 2007, at 1 (outlining potential adverse effects on policy and benefit design and on free riding);
19. Sherry Glied, Mandates and the Affordability of Health Care (Economic Research Initiative on the Uninsured Working Paper Series, Paper No. 59, 2008) (describing the economics of the affordability exemption);
20. Jonathan Cohn, Mandate Overboard, THE NEW REPUBLIC (Dec. 7, 2007), http://www.tnr.com/article/politics/mandate-overboard;
21. Einer Elhauge, Coverage v. Coercion, HUFFINGTON POST (Mar. 3, 2008), http://www.huffingtonpost.com/einerelhauge/coverage-v-coercion-b-89686.html (questioning whether coercion of mandates is validated by effect on free rider problem);
22. JONATHAN GRUBER ET AL., NEW AMERICA FOUNDATION, HEALTH DEBATE REALITY CHECK: THE ROLE OF INDIVIDUAL REQUIREMENTS (2007), https://www.policyarchive. org/bitstream/handle/l0207/8824/Health%20Debate%20Reality%20Check.pdf.
23. See, e.g., BLUMBERG & HOLOHAN, supra note 4;
24. Gruber, supra note 4;
25. GRUBER et AL., supra note 4.
26. See, e.g., REPUBLICAN STUDY COMM., supra note 4;
27. TANNER, supra note 4;
28. Whitman, supra note 4.
29. Andrew P. Wilper et al., Health Insurance and Mortality in U. S. Adults, 99 AM. J. PUB. HEALTH 2289, 2292 (2009).
30. U. S. CENSUS BUREAU, supra note 1, at 23.
31. Fragmentation is present in different forms throughout the system of health care delivery and financing and thus has received, in one form or another, considerable attention from scholars. See, e.g., EINER ELHAUGE, THE FRAGMENTATION OF U. S. HEALTH CARE: CAUSES AND SOLUTIONS (forthcoming 2010);
32. Nan Hunter, Risk Governance and Deliberative Democracy in Health Care, 97 GEO. L. J. 1, 17-27 (2008) (discussion of health law as a field of risk-centered governance).
33. See infra Part III. C.
34. Einer Elhauge, Allocating Health Care Morally, 82 CAL. L. REV. 1449, 1455 (1994).
35. For examinations of health and solidarity, see Tom Baker & Jonathan Simon, Embracing Risk, in EMBRACING RISK: THE CHANGING CULTURE OF INSURANCE AND RESPONSIBILITY 1, 6 (Tom Baker & Jonathan Simon eds., 2002);
36. Tom Baker, Risk, Insurance, and the Social Construction of Responsibility, in EMBRACING RISK: THE CHANGING CULTURE OF INSURANCE AND RESPONSIBILITY 33, 47 (Tom Baker & Jonathan Simon eds., 2002);
37. Mary Crossley, Discrimination Against the Unhealthy in Health Insurance, 54 U. KAN. L. REV 73, 73 (2005);
38. Lawrence O. Gostin, Securing Health or Just Health Care? The Effect of the Health Care System on the Health of America, 39 ST. LOUIS U. L. J. 7, 9 (1994);
39. Sharona Hoffman, Unmanaged Care: Towards Moral Fairness in Health Coverage, 78 IND. L. J. 659, 668 (2003);
40. Hunter, supra note 9, at 48-50 (promoting health solidarity within the workplace by creating a system of deliberative democracy to manage employer sponsored plans and increase citizens' ability to "infuse risk allocation discourse with moral values");
41. John V. Jacobi, The Ends of Health Insurance, 30 U. C. DAVIS L. REV. 311, 363-66 (1997);
42. Timothy Stoltzfus Jost, Health Care Access in the United States: Conflicting Concepts of Justice and Little Solidarity, 27 MED. & L. 605, 605-07 (2008);
43. Wendy Mariner, Social Solidarity and Personal Responsibility in Health Reform, 14 CONN. INS. L. J. 199, 201-03 (2008);
44. Amy Monahan, Health Insurance Risk Pool and Social Solidarity: A Response to Professor David Hyman, 14 CONN. INS. L. J. 325, 325-26 (2008);
45. Rand E. Rosenblatt, The Four Ages of Health Law, 14 HEALTH MATRIX 155, 155 (2004);
46. Anja Rudiger, From Market Competition to Solidarity? Assessing the Prospects of U. S. Health Care Reform Plans from a Human Rights Perspective, 10 HEALTH AND HUM. RTS. 123, 125-27 (2008);
47. Deborah Stone, The Struggle for the Soul of Health Insurance, 18 J. HEALTH POL., POL'Y & L. 287, 290-92 (1993) (describing the history of solidarity and health).
48. See KIEKE OKMA, NAT'L ACAD, OF SOC. INSUR., RECENT CHANGES IN DUTCH HEALTH INSURANCE: INDIVIDUAL MANDATE OR SOCIAL INSURANCE? 6-7 (2009), available at http://www.rwjf.org/files/research/okma.pdf;
49. Richard B. Saltman & Hans. F. W. Dubois, The Historical and Social Base of Social Health Insurance Systems, in SOCIAL HEALTH INSURANCE SYSTEMS IN WESTERN EUROPE 21, 29, (Richard B. Saltman et al. eds., 2004);
50. Stone, supra note 12, at 291.
51. See infra note 196 for studies and articles that explore conditions that generate mutual aid.
52. Some states have enacted laws that in essence require risk pooling through community rating, rate bands, mandated benefits or guaranteed issue of insurance. See discussion infra note 228. Cf. Economists Mark Pauly and Bradley Herring have shown evidence that there may be some risk pooling in the individual market even in unregulated states.
53. See discussion infra note 231.
54. E.g., Regina Austin, The Insurance Classification Controversy, 131 U. PA. L. REV. 517, 517 (1983);
55. Baker, supra note 12, at 33-35;
56. Donald Light, The Practice and Ethics of Risk-Rated Health Insurance, 267 JAMA 2503, 2503-05 (1992).
57. See Jonathan Simon, The Ideological Effects of Actuarial Practices, 22 L. & SOC. REV. 771, 772-73 (1988);
58. Stone, supra note 12, at 292-95.
59. CHAPTER 58, supra note 3.
60. Prior to reform, -10% of the Massachusetts population was uninsured (650, 000). Recent estimates are that 2.6% remain uninsured. SHARON K. LONG & MINDY COHEN, THE URBAN INST., GETTING READY FOR REFORM: INSURANCE COVERAGE AND ACCESS TO use OF CARE IN MASSACHUSETTS IN FALL 2006 2-3 (2006);
61. SHARON K. LONG ET AL., THE URBAN INST. & THE MASS. DIV. OF HEALTH CARE FINANCE AND POL'Y, ESTIMATES OF THE UNINSURANCE RATE IN MASSACHUSETTS FROM SURVEY DATA: WHY ARE THEY SO DIFFERENT? 9 (2008).
62. Robert J. Blendon et al., Massachusetts Health Reform: A Public Perspective from Debate Through Implementation, 27 HEALTH AFF. (WEB EXCLUSIVE) w556, W558 (2008), http://content.healthaffairs. Org/cgi/reprint/27/6/w556.
63. See, e.g., Jost, supra note 4.
64. TIMOTHY STOLTZFUS JOST, DISENTITLEMENT? 14-15 (2003).
65. See Posting of Uwe. E. Reinhardt to N. Y. Times Economix Blog, Health Reform Without a Public Plan: The German Model, http://economix.blogs.nytimes. com/2009/04/l7/health-reform-without-a-publicplan-the-german-model (April 17, 2009, 07:02 EST).
66. CONGRESSIONAL RESEARCH SERVICE, U. S. HEALTH CARE SPENDING: COMPARISON WITH OTHER OECD COUNTRIES 50-51 (2007), available at http://assets.opencrs.com/ rpts/RL34175-20070917.pdf; Jost, supra note 21, at 3.
67. See JOST, supra note 21, at 204-34;
68. Posting of Uwe E. Reinhardt to N. Y. Times Economix Blog, What is Socialized Medicine'? A Taxonomy of Health Care Systems, http://economix.blogs. nytimes.com/2009/05/08/what-is-socialized-medicine-a-taxonomy-ofhealth-care- systems/(May 8, 2009, 06:48 EST).
69. JOST, supra note 21, at 235;
70. Timothy Stoltzfus Jost, Why Can't We Do What They Do? National Health Reform Abroad, 32 J. L. MED. & ETHICS 443, 443 (2004).
71. Richard B. Saltman, Social Health Insurance in Perspective: The Challenge of Sustaining Stability, in SOCIAL HEALTH INSURANCE SYSTEMS IN WESTERN EUROPE 3 (Richard B. Saltman et al. eds., 2004);
72. JOST, supra note 21, at 235-264.
73. Saltman, supra note 25 at 21-23.
74. Id. at 27.
75. Id. at 5.
76. Saltman, supra note 25, at 6.
77. E.g., Timothy Stoltzfus Jost, The Experience of Switzerland and the Netherlands with Individual Health Insurance Mandates: A Model for the United States? 1, http://law.wlu.edu/deptimages/Faculty/ Jost%20The%20Experience%20of%20Switzerland%20and%20the%20Netherlands.pdf (last visited Mar. 7, 2010);
78. ROBERT E. LEU ET AL., THE COMMONWEALTH FUND, THE SWISS AND DUTCH HEALTH INSURANCE SYSTEMS: UNIVERSAL COVERAGE AND REGULATED COMPETITIVE INSURANCE MARKETS 8-11 (2009);
79. OKMA, supra note 13, at 4-7.
80. Anna Dixon et al., Solidarity and Comptetition in Social Health Insurance Countries, in SOCIAL HEALTH INSURANCE SYSTEMS IN WESTERN EUROPE 170, 170-71, 174-76 (Richard B. Saltman et al. eds., 2004).
81. Id. at 176-77;
82. see also Jost, supra note 30.
83. See, e.g., DASCHLE et AL., supra note 1, at 49, 53, 78;
84. Reinhardt, supra note 23.
85. Professor Ted Marmor describes how Americans' schizophrenia toward health care entitlement has resulted in five "Americas." First, the VA is socialized medicine, where because of veterans' sacrifice, we provide comprehensive, specialized benefits. Second, in Medicare Part A or disability coverage, contributory financing during the working life offers later protection against financial threats to well-being resulting from poor health; there is no connection between proportional/progressive financing and later distribution of benefits. Third, Medicaid is a means-tested program akin to European poor law. Fourth, in employment-related private insurance, the insured pay directly for the benefits you receive. Fifth, we provide some charity care at the individual level, which we have required with respect to emergency care under the Emergency Medical Treatment and Active Labor Act (EMTALA). Cf. THEODORE R. MARMOR ET AL., AMERICA'S MISUNDERSTOOD WELFARE STATE 22-31 (BasicBooks 1990).
86. Some states have tried to impose a participation requirement on employers through "pay or play", requiring employer contribution to its employees' coverage or payment of a penalty to the state. The legality of such laws, which face risk of preemption under the federal Employee Retirement Income Security Act (ERISA), will possibly be determined by the Supreme Court this session. I discuss employer mandates further in Part IV below.
87. H. R. 3590, supra note 2.
88. It is likely, of course, that any policy built upon an individual mandate will impose a number of additional regulations on commercial insurers. Such regulations are discussed in Part V below.
89. See ELHAUGE, supra note 9.
90. Cf. Deborah Stone, Protect the Sick: Health Insurance Reform in One Easy Lesson, 36 J. L. MED. & ETHICS 652, 652-53 (2008).
91. For a description of this patchwork, see DASCHLE et AL., supra note 1, at 29-38.
92. SUSAN JAFFE, HEALTH POLICY BRIEF: A PUBLIC HEALTH INSURANCE PLAN 2 (2009), available at http://www.healthaffairs.org/healthpolicybriefs/brief-pdfs/ healthpolicybrief-4.pdf.
93. Id.
94. Medicare covered thirty-eight million people aged sixty-five and older and seven million people under sixty-five with disabilities in 2008. THE HENRY J. KAISER FAMILY FOUND., MEDICARE: A PRIMER 1 (2009), http://www.kff.org/ medicare/upload/76l5-02.pdf [hereinafter KFF MEDICARE: A PRIMER].
95. Katherine Swartz, Justifying Government as the Backstop in Health Insurance Markets, 2 YALE J. HEALTH POL'Y L. & ETHICS 89, 95-96 (2001).
96. Id. at 94. Sixty percent of all firms offer health benefits, down from a recent high of 69% in 2000. KAISER FAMILY FOUND, ET AL., EMPLOYER HEALTH BENEFITS: 2007 ANNUAL SURVEY 36 (2007), http://www.kff.org/insurance/7672/ upload/76723.pdf [hereinafter KFF EMPLOYER HEALTH BENEFITS: 2007].
97. In reality, most insurers buy reinsurance policies that limit their exposure.
98. If at the end of the year, employee health costs are higher than the reserve, the company must cover these costs. If employee health costs are lower than projected, the company retains the surplus in the plan. See infra Part B (explaining how ERISA preemption rules have created incentives for employers to self insure).
99. KFF EMPLOYER HEALTH BENEFITS: 2007, supra note 45, at 147.
100. THE HENRY J. KAISER FAMILY FOUND., HEALTH INSURANCE COVERAGE IN AMERICA: 2007 1 (2007), http://facts.kff.org/chartbooks/ Health%20Insurance%20Coverage%20in%20America, %202007.pdf [hereinafter KFF HEALTH INSURANCE COVERAGE IN AMERICA].
101. Id.
102. See infra Part V. B.
103. THE HENRY J. KAISER FAMILY FOUND., THE UNINSURED, A PRIMER: KEY FACTS ABOUT AMERICANS WITHOUT INSURANCE 1 (2009), http://www.kff.org/uninsured/upload/ 7451-05.pdf [hereinafter KFF The Uninsured].
104. For an overview of problems of uninsurance and underinsurance, see TIMOTHY STOLTZFUS JOST, HEALTH CARE AT RISK 1-16 (Duke Univ. Press 2007). For a study on the duration of being uninsured for different populations
105. see Pamela Farley Short & Deborah R. Graefe, Battery-powered Health Insurance? Stability in Coverage of the Uninsured, 22 HEALTH AFF. 244, 250-51 (2003) (finding that the wealthy tend to be uninsured for shorter period of time and less frequently).
106. Id.
107. Id. at 250.
108. The reasons for not having enrolled are varied, including lack of awareness of the programs and their eligibility criteria and cumbersome enrollment procedures. JOHN HOLAHAN ET AL., KAISER COMM. ON MEDICAID AND THE UNINSURED, CHARACTERISTICS OF THE UNINSURED: WHO IS ELIGIBLE FOR PUBLIC COVERAGE AND WHO NEEDS HELP AFFORDING COVERAGE? 1, 6 (2007), http://www.kff.org/ uninsured/upload/76l3.pdf.
109. SARA R. COLLINS ET AL., THE COMMONWEALTH FUND, SQUEEZED: WHY RISING EXPOSURE TO HEALTH CARE COSTS THREATENS THE HEALTH AND FINANCIAL WELL-BEING OF AMERICAN FAMILIES 4 (2006), http://www.commonwealthfund. Org/-/media/Files/ Publications/Fund%20Report/2006/Sep/ Squeezed%20%20Why%20Rising%20Exposure%20to%20Health%20Care%20Costs%20Threatens% 20the%20Health%20and%20Financial%20Well%20Being%20of/Collins- squeezedrisinghltcarecosts-953%20pdf.pdf.
110. THE COUNCIL FOR AFFORDABLE HEALTH INSURANCE, UNDERSTANDING THE UNINSURED AND WHAT TO DO ABOUT THEM 5 (2007), http://www.cahi.org/cahi-contents/resources/ pdf/UnderstandingTheUninsured0307-pdf [hereinafter CAHI UNDERSTANDING THE UNINSURED]. Recent estimates suggest that "young invincibles", who comprise a large part of the voluntary opt-outs, were 13.2 million in 2007.
111. Cara Buckley, For Uninsured Young Adults, Do-It-Yourself Medical Care, N. Y. TIMES, Feb. 18, 2009, at A1 (citing the Commonwealth Fund study).
112. CAHI UNDERSTANDING THE UNINSURED, supra note 58, at 5.
113. These opt outs might either have decided not to purchase insurance on their own or may have declined an offer of employer-sponsored insurance. Take up rates on employersponsored insurance are 82%. THE HENRY J. KAISER FAMILY FOUND, ET AL., EMPLOYER HEALTH BENEFITS: 2008 ANNUAL SURVEY 47, available at http://ehbs.kff.org/pdf/7790.pdf [hereinafter KFF EMPLOYER HEALTH BENEFITS: 2008].
114. America's Health Insurance Plans (AHIP), the insurance lobby, and the Blue Cross and Blue Shield Association have advocated for an individual mandate. See Press Release, America's Health Insurance Plans, America's Health Ins. Plans, Health Plans Propose Guaranteed Coverage for Pre-Existing Conditions and Individual Coverage Mandate (Nov. 19, 2008), available at http://www.ahip.org/ content/pressrelease.aspx?docid=25068;
115. Robert Pear, Insurers Offer to Soften a Key Rate-Setting Policy, N. Y. TIMES, Mar. 25, 2009 at B1.
116. If reform lowers the price of insurance or if once insured, they consume more care (i.e., moral hazard), the gap between consumption and premiums paid will narrow.
117. Gruber, supra note 4, at 581.
118. See e.g., Steven Shavell, On Moral Hazard and Insurance, 93 Q. J. ECON. 541 (1979).
119. The average premium per individual is roughly $5000 and per family is roughly $12, 000 for group coverage. The Henry J. Kaiser Family Found., Average Health Insurance Premiums and Worker Contributions for Family Coverage, 1999-2008 (2008), http://facts.kff.org/chart.aspx?ch=706. About 1/3 of the uninsured are individuals and the other 2/3 are part of families.
120. KFF HEALTH INSURANCE COVERAGE IN AMERICA, supra note 49, at 6. With an average family size of 3 in the U. S., those buying family plans will pay $4000 per person. U. S. Census Bureau, Fact Sheet: 2006-2007 American Community Survey 3-Year Estimates, http://factfinder.census.gov/servlet/ ACSSAFFFacts (last visited Mar. 9, 2009). A rough weighted estimate is $4300 per person. Yet, if average premiums decrease when more healthy people enroll or if these healthy people pay lower than average premiums, these estimates may be high; thus, I use $4000 to be conservative.
121. Marc L. Berk & Alan C. Monheit, The Concentration of Health Care Expenditures, Revisited, 20 (2) HEALTH AFF. 9, 12 (2001).
122. Jonathan Oberlander, Great Expectations - The Obama Administration and Health Care Reform, 360 NEW ENG. J. MED. 321, 322 (2009).
123. C.f. Gruber, supra note 4 (outlining arguments for universal coverage in general, which includes these three categories, among others).
124. See HEALTH CARE ACCESS AND AFFORDABILITY CONFERENCE COMMITTEE REPORT 2006, http://www.mass.gov/legis/summary.pdf [hereinafter CONFERENCE COMMITTEE REPORT].
125. See, e.g., SEN. MAX BAUCUS, CALL TO ACTION: HEALTH REFORM 2009 (2008), http://finance.senate.gov/healthreform2009/finalwhitepaper.pdf.
126. "Asymmetric paternalism" justifies paternalistic interventions so long as they help irrational people avoid making costly mistakes while causing little or no harm to rational people. Colin Camerer et al., Regulation for Conservatives: Behavioral Economics and the Case for 'Asymmetric Paternalism, ' 151 U. PA. L. REV. 1211, 1212 (2003);
127. see also Eyal Zamir, The Efficiency of Paternalism, 84 VA. L. REV. 229, 230 (1998) (efficiency analysis can "provideG a central justification for paternalism"). (Pubitemid 128443481)
128. See, e.g., Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563 (1982) (discussing paternalism and retribution in the law).
129. Of course, policymakers could misjudge best interest and create a harmful paternalistic intervention. See, e.g., Christine Jolls et al., A Behavioral Approach to Law and Economics, 50 STAN. L. REV. 1471, 1543 (1998). (Pubitemid 128421723)
130. Some believe the risk of side effects from vaccination in fact outweigh the potential benefits, making vaccination contrary to best-interest. For example, early polio vaccinations had a high likelihood of infecting someone with the disease and, more recently, some are concerned that vaccinations have caused an increased incidence of autism. See, e.g., Generation Rescue, http://www.generationrescue.org/(last visited Mar. 23, 2009).
131. Even for those who would not object to legal paternalism, mandates may be too strong of a tool. Some advocate for "soft paternalism", such as default rules, information disclosure requirements, or cooling off periods to shape behavior by encouraging people to behave in their own best interest rather than mandating they do so. Camerer et al., supra note 71, at 1224;
132. see generally Richard H. Thaler & Cass R. Sunstein, NUDGE: IMPROVING DECISIONS ABOUT HEALTH, WEALTH, AND HAPPINESS (2008) (promoting choice architecture to influence choices with greater subtlety).
133. See Camerer et al., supra note 71, at 1213 (2003) (providing a brief history of justification for paternalism);
134. Zamir, supra note 71, at 229.
135. Camerer et al., supra note 71, at 1212.
136. Christine Jolls, Cass Sunstein, and Richard Thaler explored such phenomena of bounded rationality, bounded willpower, and bounded self interest. Jolls et al., supra note 73;
137. see also HERBERT A. SIMON, Rationality and Administrative Decision Making, in MODELS OF MAN: SOCIAL AND RATIONAL 196-207 (1957).
138. Jolls et al., supra note 73.
139. See Zamir, supra note 71, at 251.
140. See, e.g., Gruber, supra note 4, at 582.
141. Cf. MICHAEL J. GRAETZ & JERRY L. MASHAW, TRUE SECURITY: RETHINKING AMERICA'S SECURITY 171-72 (1999) (explaining the purpose of social health insurance as protecting against the dual risks of inadequate income and "unacceptably steep" decline in living standards due to medical expenses).
142. Tom Baker & Peter Siegelman, Tontines for the Young Invincibles, REGULATION, WINTER 2009-2010, at 20, available at http://www.cato.org/pubs/ regulation/regv32n4/v32n4-4.pdf.
143. Id. at 23; Jeffrey Liebman & Richard Zeckhauser, Simple Humans, Complex Insurance, Subtle Subsidies, in USING TAXES TO REFORM HEALTH INSURANCE: PITFALLS AND PROMISES 230, 230-51 (Henry J. Aaron and Leonard E. Burman eds., 2009).
144. Diane Rowland & Adele Shartzer, America's Uninsured: The Statistics and Back Story, 36 J. L. MED. & ETHICS 618, 618 (2008).
145. See also Gruber, supra note 4, at 582 (citing the Institute of Medicine study and others showing impact of insurance on health);
146. Wilper, supra note 7, at 2289.
147. David U. Himmelstein et al., Marketwatch: Illness and Injury as Contributors to Bankruptcy, HEALTH AFF. (WEB EXCLUSIVE) w5-63 (2005), http://content.healthaffairs.org/cgi/reprint/hlthaff.w5.63vl;
148. CHRISTOPHER T. ROBERTSON ET AL., GET SICK, GET OUT: THE MEDICAL CAUSES OF HOME FORECLOSURES, 18 HEALTH MATRIX 65, 95 (2008).
149. Of course, because some of the costs of medical care are unpredictable, it is difficult to tell who is making a rational decision ex-ante. But, as discussed in Part II, with the irregular distribution of medical costs, a significant subset of the uninsured who expect low medical costs will indeed incur low costs.
150. See Light, supra note 16, at 2503-08.
151. See e.g., Camerer et al., supra note 71;
152. Zamir, supra note 71. Cf. Anthony T. Kronman, Paternalism and the Law of Contracts, 92 YALE L. J. 763 (1983) (explaining paternalistic limitation on contractual freedom by considerations of economic efficiency, distributive fairness, personal integrity, or sound judgment).
153. While mandatory motorcycle helmet laws offer potential efficiency gains (e.g., reduce costs of emergency response, injury, and death from accidents), they were challenged as overly paternalistic. The federal government eventually lifted financial penalties levied on states without helmet laws, and the once universal laws have since been either repealed or limited to apply to minors in two-thirds of states. See Insurance Institute for Highway Safety, Helmet use Laws (Mar. 2010), http://www.iihs.org/laws/HelmetUseOverview.aspx. Even the suggestion that a mandate is paternalistic may weaken its authority, as evinced by the case of mandatory HPV vaccination. Some scholars make a compelling case that compulsory HPV vaccination serves important public health goals.
154. E.g., Sylvia Law, Human Papillomavirus Vaccination, Private Choice, and Public Health, 41 U. C. DAVIS L. REV. 1731 (2008);
155. Kyra R. Wagoner, Mandating the Gardasil Vaccine: A Constitutional Analysis, 5 IND. HEALTH L. REV. 403 (2008;. Opponents argue that an HPV vaccination mandate is overly paternalistic. E.g.
156. Tracy Solomon Dowling, Mandating a Human Papillomavirus Vaccine: An Investigation into Whether Such Legislation is Constitutional and Prudent, 34 AM. J. L. & MED. 65 (2008);
157. Gail Javitt et al., Assessing Mandatory HPV Vaccination: Who Should Call the Shots?, 36 J. L. MED. & ETHICS 384, 384 (2008). Whether objectors are actually offended by paternalism or resistant to a mandate that they fear implicitly authorizes sexual activity by creating a perception that sex is "safe" post-vaccination, they use rhetoric of paternalism to undermine the validity of the mandate.
158. ROBERT H. JERRY, II & DOUGLAS R. RICHMOND, UNDERSTANDING INSURANCE LAW 953, 954 (LexisNexis 4th ed. 2007).
159. Id. at 956-57, 960. While debatable how much of the costs are internalized when insurance pays for harm, arguably, paying for insurance premiums that increase with driving incidents provides more incentive for safety than does externalizing all of the costs of an accident.
160. See Kevin M. Malone & Alan R. Hinman, Vaccination Mandates: The Public Health Imperative and Individual Rights, in LAW IN PUBLIC HEALTH PRACTICE 338, 339-40 (Richard Alan Goodman et al. eds., 2007).
161. States with vaccination mandates average 85% immunization rates versus 77% in nonmandate states. Paul E. M. Fine, Herd Immunity: History, Theory, Practice, 15 EPIDEMIOLOGIC REV. 265, 268 (1983). Vaccination efforts are credited with the eradication of smallpox, near eradication of polio, and control of measles. In the United States, morbidity by vaccine-preventable diseases has been reduced by 87-99%, depending on the disease.
162. See Walter A. Orenstein et al., Immunizations in the United States: Success, Structure, and Stress, 24 HEALTH AFF. 599, 599-600 (2005);
163. see also Malone & Hinman, supra note 92, at 338.
164. Jacobson v. Mass., 197 U. S. 11, 25 (1905).
165. Id. at 26 (citing Railroad Co. v. Husen, 95 U. S. 465, 471 (1878);
166. Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613, 628-29 (1898);
167. Thorpe v. Rutland & Burlington R. R., 27 Vt. 140, 148 (1854)).
168. See e.g., Linda J. Blumberg & John Holohan, The Individual Mandate - An Affordable and Fair Approach to Achieving Universal Coverage, 361 NEW ENG. J. MED. 6 (2009);
169. see also Sherry Glied, Universal Coverage One Head at a Time - The Risks and Benefits of Individual Health Insurance Mandates, 358 NEW ENG. J. MED. 1540, 1541 (2008).
170. See RAND COMPARE, ANALYSIS OF INDIVIDUAL MANDATE, http://www.randcompare. org/analysis/mechanism/individual-mandate (last visited July 8, 2009) (summarizing studies on the effects of expanded insurance coverage on ED care).
171. Gruber, supra note 4, at 601.
172. E.g., David M. Cutler & Richard J. Zeckhauser, Adverse Selection in Health Insurance, 1 FRONTIERS IN HEALTH POLICY RESEARCH (1998), available at http://www.nber.org/papers/w6l07.
173. Id.
174. see also Mark V. Pauly & Len M. Nichols, The Nongroup Health Insurance Market: Short on Facts, Long On Opinions and Policy Disputes, HEALTH AFF. (WEB EXCLUSIVE) 325, 327 (Oct. 23, 2002) (arguing that adverse selection is clear in regulated nongroup markets and less clear in unregulated ones but concluding that nonetheless, insurers' fear of adverse selection is real and drives underwriting and pricing behavior);
175. Peter Siegelman, Adverse Selection in Insurance Markets: An Exaggerated Threat, 113 YALE. L. J. 1223, 1226 (2004) (arguing that propitious selection, or the preference of risk averse who also tend to be more self-preserving to buy insurance, balances out any adverse selection);
176. Gruber, supra note 4, at 577 (discussing economic literature on adverse selection within health insurance markets).
177. Gruber, supra note 4, at 574;
178. Swartz, supra note 44, at 96.
179. THE HENRY J. KAISER FAMILY FOUND., HOW PRIVATE HEALTH COVERAGE WORKS: A PRIMER 2008 UPDATE 7, 5 (2008) [hereinafter HOW PRIVATE HEALTH COVERAGE WORKS].
180. See generally Cutler & Zeckhauser, supra note 99
181. Id. at 14.
182. See George A. Akerlof, The Market for "Lemons": Quality, Uncertainly and the Market Mechanism, 84 Q. J. ECON. 488, 489-90 (1970) (showing that in the used car market information asymmetry leads to pricing based on the average used car, which causes sellers of a good used cars to leave the market because they cannot get a high enough price, leaving "lemons" behind).
183. See also Michael Rothschild & Joseph Stiglitz, Equilibrium in Competitive Insurance Markets: An Essay on the Economics of Imperfect Information, 90 Q. J. ECON 629 (1976) (discussing information asymmetry in competitive insurance markets).
184. See text accompanying infra note 228 for discussion of state laws prohibiting risk selection.
185. See Timothy Stoltzfus Jost, Risk Selection by Private Health Insurers: Why Regulation Alone Cannot Solve the Problem, http://law.wlu.edu/deptimages/ Faculty/Jost%20Risk%20Selection%20by%20Private%20Health%20Insurers.pdf (providing description of different practices insurers use for risk selection).
186. See also sources cited supra note 16.
187. See also Kaiser Family Foundation, infra note 228, for description of state laws that prohibit such practices.
188. Swartz, supra note 44, at 97.
189. Light, supra note 16, at 2504.
190. Swartz, supra note 44, at 97
191. Gruber, supra note 4, at 574.
192. Pauly & Nichols, supra note 100, at 326.
193. Jost, supra note 107, at 1.
194. Gruber, supra note 4, at 582.
195. 42 U. S. C. § 1395dd (2006).
196. Studies conflict on whether the availability of free care is in fact a relevant factor in people's decision to buy insurance or not.
197. See Gruber, supra note 4, at 578.
198. Hadley et al., Covering the Uninsured in 2008: Current Costs, Sources of Payment, and Incremental Costs, 27 HEALTH AFF. (WEB EXCLUSIVE) 399, 402 (Aug. 25 2008).
199. Gruber, supra note 4, at 582 (estimating the cost of uncompensated care at $30 billion annually);
200. Hadley et al., supra note 117, at 399;
201. (estimating uncompensated care at $56B).
202. see e.g. William F. Frist, An Individual Mandate for Health Insurance Would Benefit All, U. S. NEWS. COM, Sept. 28, 2009, http://www.usnews.com/ articles/opinion/2009/09/28/frist-an-individual-mandate-forhealth-insurance- would-benefit-all.html?PageNr=2.
203. RAND COMPARE, supra note 97, at 8-9 (citing studies on possible clinical efficiency gains and losses from expanded coverage).
204. THE HENRY J. KAISER FAMILY FOUND., COVERING THE UNINSURED IN 2008: KEY FACTS ABOUT CURRENT COSTS, SOURCES OF PAYMENT, AND INCREMENTAL COSTS 11 (August 2008) [hereinafter KFF COVERING THE UNINSURED IN 2008];
205. RAND COMPARE, supra note 97, at 8-9.
206. See Shavell, supra note 64, at 541.
207. See Himmelstein et al., supra note 85, at w5-66.
208. See infra Part III. C.2.a
209. See Stone, supra note 12, at 292.
210. This assumes a competitive markets, where insurers don't capture the benefit of lowcost enrollees as additional profit.
211. See, e.g., Baker, supra note 12 (discussing of the shifting limits of risk pooling over time).
212. See Gillian Lester, Unemployment Insurance and Wealth Redistribution, 49 UCLA L. REV. 335, 359 (2001), for an exploration of this concept in terms of unemployment insurance.
213. See Gruber, supra note 4, at 602.
214. See Sharon Long, On The Road To Universal Coverage: Impacts In Massachusetts At One Year, 27 HEALTH AFF. (WEB EXCLUSIVE) w270, w270 (June 3, 2008).
215. H. R. 3590, supra note 2.
216. KFF THE UNINSURED, supra note 52, at 4.
217. H. R.3590, supra note 2. Farhana Hossain & Archie Tse, Comparing the House and the Senate Health Care Proposals, N. Y. TIMES, Feb. 23, 2009, http://www.nytimes.com/interactive/2009/ll/l9/us/politics/lll9-plancomparison. htmltab=9.
218. See Baker & Siegelman, supra note 83, passim.
219. Id. at 3.
220. See CONGRESSIONAL BUDGET OFFICE, PRELIMINARY ANALYSIS OF THE CHAIRMAN'S MARK FOR THE AMERICA'S HEALTHY FUTURE ACT, as AMENDED: LETTER TO THE HONORABLE MAX BAUCUS 2 (October 7, 2009), available at http://www.cbo.gov/ftpdocs/l06xx/ docl0642/10-7-Baucus-letter.pdf (estimating a gross total of $829B over the next 10 years for credits and subsidies to expand insurance coverage, resulting in an estimated net cost of $518B over the next 10 years after revenues from additional taxes and other sources).
221. See Einer Elhauge, Allocating Health Care Morally, 82 CAL. L. REV. 1449, 1490-91 (1994).
222. See e.g., NORMAN DANIELS, JUST HEALTH (2008) (examining the role of health in social, political, economic policy).
223. See id.
224. Elhauge, supra note 137, at 1490-91.
225. Id.
226. but cf. Louis Kaplow & Steven Shavell, Why the Legal System is Less Efficient than the Income Tax in Redistributing Income, 23 J. L. STUDIES 667, 667 (1994) (arguing that distribution is most efficient through taxation, rather than through legal rules).
227. Elhauge, supra note 137, at 1488.
228. See id. at 1487
229. Gostin, supra note 12, at 28.
230. There will still be ex-post pooling of losses. That is, if I experience a $2M loss this year, others' premium dollars will help to pay for my loss because even with risk spreading over my lifetime, I will never pay enough to cover my loss this year.
231. See Len M. Nichols, State Regulation: What Have We Learned So Far?, 25 J. HEALTH POL., POLY & L. 175, 176 (2000). The approach is not inconsistent with universal coverage. The government could choose to build universal insurance by filling in holes left by the market (and has in some ways done so now with public insurance programs, EMTALA, and publically funded free care) by subsidizing the high-risk people who cannot afford to pay or those who experience unexpected and unaffordable medical costs. Yet, government intervention in this way may create incentives for everyone to buy cheap, low coverage policies and then seek out governmental assistance if they require expensive care.
232. The Genetic Information Nondiscrimination Act, or GINA, which was signed into law by President Bush in 2008, prohibits insurers from using genetic information in medical underwriting. Pub. L. No. 110-233, 122 Stat. 881 (2008).
233. See sources cited in supra note 12 for examples of scholars who advocate policies of health redistribution, including but not exclusively considering the mandate, in order to institutionalize greater solidarity.
234. E.g., Stone, supra note 12, at 290-91. In order to finance universal coverage, there must be either shared commitment by all citizens to be willing to subsidize others or coercion of some to contribute.
235. See Marmor & Oberlander, supra note 1, at 212.
236. See, e.g., Gillian Lester, Means Testing, Universalism, and the Formation of Social Preferences 20-22 (August 24, 2009) (unpublished draft, abstract available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=146l098).
237. For examples of authorities on solidarity and health insurance, see supra note 12. "Need" can be defined in any number of ways. It is beyond the scope of this article to determine the level of need that solidarity requires. For this article, it is sufficient for insurance to equitably protect all members of a community. In addition, solidarity with respect to health may demand that a community do more than just ensure medical care. It could also demand that the community provide for clean water, shelter, healthy food, and other needs that are key determinants of health. While solidarity could apply to any of these needs, this article focuses solely on medical care since that is the concern of the mandate for health insurance.
238. Stcme, supra note 12, at 292.
239. Reinhardt, supra note 21. Gosta Esping-Anderson describes how "social democracy", a welfare state model most common in Scandinavian countries, seeks solidarity in the form of "an equality of the highest standards." GÖSTA ESPING-ANDERSEN, THE THREE WORLDS OF WELFARE CAPITALISM 27, 75 (1990).
240. Saltman, supra note 25, at 27.
241. 26 U. S. C. § 3101 (2006).
242. See CONG. BUDGET OFFICE, ECON. AND BUDGET ISSUE BRIEF: IS SOCIAL SECURITY PROGRESSIVE? 2 (2006).
243. Id. at 3. The progressivity is limited by the fact that higher earners tend to live longer.
244. See id. at 5.
245. William M. Sage, Solidarity: Unfashionable, But Still American, in CONNECTING AMERICAN VALUES WITH HEALTH REFORM 10, 10-12 (Mary Crowley ed., 2009).
246. See Part III. A below.
247. See, e.g., Mariner, supra note 12, at 205-06;
248. Monahan, supra note 12, at 333-34.
249. CONFERENCE COMMITTEE REPORT, supra note 69, at 4.
250. Barack Obama, U. S. President, Health Care Speech to Congress (Sept. 9, 2009), in N. Y. TIMES, http://www.nytimes.com/2009/09/lO/us/politics/lOobama. text.html.
251. CBS News & N. Y. Times Poll, The Debate Over Health Care, at Question 54 (June 12-16, 2009), http://www.cbsnews.com/htdocs/pdf/CBSPOLL-June09a- health-care.pdf.
252. Stone, supra note 12, at 289-90.
253. CBS News & N. Y. Times Poll, supra note 163, at Question 59.
254. See, e.g., 1 PRESIDENT'S COMMISSION FOR THE STUDY OF ETHICAL PROBLEMS IN MEDICINE AND BIOMEDICAL AND BEHAVIORAL RESEARCH, SECURING ACCESS TO HEALTH CARE: THE ETHICAL IMPLICATION OF DIFFERENCES IN AVAILABILITY OF HEALTH SERVICES (1983) [hereinafter PRESIDENT'S COMMISSION];
255. Einer Elhauge, Allocating Health Care Morally, 82 CAL. L. REV. 1449 (1994) (providing framework of moral arguments for treating health differently);
256. NORMAN DANIELS, JUST HEALTH CARE 36-58 (Daniel I. Wikler ed., 1985).
257. See, e.g., PRESIDENT'S COMMISSION, supra note 166, at 16-17;
258. DANIELS, supra note 166, at 11-18;
259. Gostin, supra note 12, at 34-37;
260. Nichols, supra note 146, at 176;
261. Stone, supra note 12, at 288.
262. See, e.g., Gostin, supra note 12, at 13.
263. Id.
264. See, e.g., DANIELS, supra note 166, at 39-47.
265. Note that access to medical care might not be the only - or even the most important - determinant of health. Solidarity simply grows out of the belief that it is an important determinant of good health.
266. See generally JOHN RAWLS, A THEORY OF JUSTICE (1971).
267. See Elhauge, supra note 166, at 1483-84.
268. See Lester, supra note 150, at 25.
269. Cf. Allen E. Buchanan, The Right to a Decent Minimum of Health Care, 13 PHIL. & PUB. AFF. 55, 69-70 (1984) (making a related argument for enforced beneficence to coordinate health-related charity desires toward the most effective uses in building infrastructure or innovation).
270. One must believe that to some degree, we cannot control or foresee health risk, which is, of course, only partially true. It might be easiest to believe that health is arbitrary with respect to genetic factors of illness. Cf. Onora O'Neill, Genetic Information and Insurance: Some Ethical Issues, 352 PHIL. TRANSACTIONAL: BIOLOGICAL SCI. 1087 (1997) (arguing that it is not reasonable to differentiate premiums on the basis of unavoidable genetic risk).
271. Marc L. Berk & Alan C. Monheit, The Concentration of Health Care Expenditures, Revisited, 20 HEALTH AFF. 9, 12 (2001);
272. Hall, supra note 177, at 3-4.
273. See, e.g., 47 Million and Counting: Why the Health Care Marketplace is Broken: Hearing Before the U. S. Senate Committee on Finance, 110th Cong. (2008) (statement of Mark A. Hall, J. D., Fred D. and Elizabeth L. Turnage Professor of Law and Public Health, Wake Forest University) available at http://finance.senate.gov/hearings/testimony/2008test/06l008MHTest.pdf (testified that - the key challenge in reform is to "place people into large groups whose membership is not tied to health risk, and to limit the choice of plans within the group. ").
274. Berk & Monheit, supra note 177, at 12;
275. Hall, supra note 177, at 3-4.
276. Berk & Monheit, supra note 177, at 12.
277. Stone, supra note 12, at 292.
278. See also Michael J. Graetz & Jerry L. Mashaw, TRUE SECURITY: RETHINKING AMERICAN SOCIAL INSURANCE (1999).
279. See generally Jonathan S. Feinstein, The Relationship Between Socioeconomic Status and Health: A Review of the Literature, 71 THE MILBANK Q. 279 (1993).
280. BAKER & SIMON, supra note 12, at 47.
281. Over three-quarters of Americans now support Medicare and Social Security, even through many pay more into these programs than they will ever collect in benefits. Harris Interactive, The Harris Poll, Poll 92 (Dec. 21, 2005), http://www.harrisinteractive.com/harris-poll/index.asp?PID=620. Support for Social Security has grown from 68% in 1936, when enacted, to as high as 86% in the late 1990s.
282. MATTHEW C. PRICE, JUSTICE BETWEEN GENERATIONS: THE GROWING POWER OF THE ELDERLY IN AMERICA 82-83 (1997).
283. Lester, supra note 150, at 15. On the flip side, such investment could be seen as stickiness that might preserve a bad program just as easily as a good one.
284. Jon Kingsdale, Implementing Health Care Reform in Massachusetts: Strategic Lessons Learned, 28 HEALTH AFF. (WEB EXCLUSIVE) w588, w592 (May 28, 2009).
285. Partners HealthCare, the largest group of providers in the Commonwealth, has been accused of demanding high rates from insurers in return for inclusion in the insurer's network. Since insurers have little choice but to include Partners physicians, they have agreed to the demanded rates. Scott Allen et al., A Healthcare System Badly Out of Balance, BOSTON GLOBE, Nov. 16, 2008, at Al.
286. Kingsdale, supra note 185, at W589-90 (discussing the importance of cost containment for sustaining the near-universal health care coverage in Massachusetts).
287. Saltman, supra note 25, at 6.
288. See e.g., EMBRACING RISK (Tom Baker & Jonathan Simon eds., 2002);
289. Hunter, supra note 9, at 57;
290. Simon, supra note 16, 787-95.
291. Cf. BAKER & SIMON, supra note 12, at 46;
292. ESPING-ANDERSON, supra note 153, at 66-68;
293. Lester, supra note 150, at 40-42.
294. BAKER & SIMON, supra note 12, at 18.
295. Id. at 46-47
296. Deborah Stone, Beyond Moral Hazard: Insurance as Moral Opportunity, in EMBRACING RISK 52, 54 (Tom Baker & Jonathan Simon eds., 2002).
297. Simon, supra note 16, at 790.
298. Lester, supra note 150, at 40-42.
299. Id. at 22-31, 43-46;
300. see also Ernst Fehr & Herbert Gintis, Human Motivation and Social Cooperation: Experimental and Analytical Foundations, 33 ANN. REV. SOC. 43 (2007);
301. Ernst Fehr & Klaus M. Schmidt, The Economics of Fairness, Reciprocity and Altruism - Experimental Evidence and New Theories, in 1 HANDBOOK OF THE ECONOMICS OF GIVING, ALTRUISM & RECIPROCITY 615 (Serge-Christophe Kolm & Jean Merrier Ythier eds., 2006).
302. Lester, supra note 150, at 46.
303. Id. at 25.
304. ESPING-ANDERSEN, supra note 153, at 64-65.
305. Id.
306. Id. This type of concern may be diluted in a mandates plus subsidies approach, but only if the perception of the universality of the program is stronger than any stigmatization from line drawing.
307. Blendon et al., supra note 19, at w560.
308. Id.
309. This comfort could, of course, grow out of a belief that the reform doesn't affect them or that even if it does, it's worth it. Either way, it signals a growing comfort with a redistributive program.
310. See, e.g., Glied, supra note 4; Gruber, supra note 4.
311. See, e.g., Glied, supra note 4, at 1619-20;
312. Gruber, supra note 4, at 601. A study by the Lewin Group assessed ten proposals to expand coverage. The four that included an individual mandate appear likely to achieve significantly higher levels of coverage.
313. See JOHN SHIELS & RANDALL HAUGHT, THE LEWIN GROUP, COST AND COVERAGE OF TEN PROPOSALS TO EXPAND HEALTH INSURANCE COVERAGE 2-3 (2003).
314. SHARON K. LONG & KAREN STOCKLEY, URBAN INST., HEALTH INSURANCE COVERAGE AND ACCESS TO CARE IN MASSACHUSETTS: DETAILED TABULATIONS BASED ON THE 2008 MASSACHUSETTS HEALTH INSURANCE SURVEY 3 (2009), available at http://www.mass.gOv/Eeohhs2/docs/dhcfp/r/survey/08his-detailed-tabulations.pdf. Based on 2008 tax filings, only 97, 000 people had access to affordable coverage and remained uninsured, a number expected to decrease as penalties increase.
315. JOHN HOLOHAN & LINDA BLUMBERG, URBAN INST., MASSACHUSETTS HEALTH REFORM: SOLVING THE LONG-RUN COST PROBLEM 2-3 (2009).
316. Low compliance may also be a sign that a mandate was not well-implemented, not necessarily of fundamental mandate failure, as discussed in a recent article by Professor Sherry Glied and colleagues. Glied et al., supra note 4. Compliance is a function of at least four factors: (1) knowledge of a mandate's requirements, (2) penalties for noncompliance, (3) levels of enforcement of penalties, and (4) costs of compliance. Cf. id. at 1618-19 (identifying only three of these four factors in their analysis of the effectiveness of mandates on participation in programs).
317. The interconnection between paternalist goals and fragmentation is complicated. For some, a fragmented market works to their benefit if they can obtain inexpensive coverage based on their own risk profile. If they are charged more for premiums when risk pools more broadly, at some point the purchase of insurance might not be in their own interest but rather to serve distributive goals, at least in the short term. It is difficult to identify the level of trade off between paternalist and redistributive objectives across individuals and over time, but there is clearly some trade off.
318. So far in Massachusetts, emergency department (ED) use for non-emergencies has not decreased. Sharon K. Long & Paul B. Masi, Access and Affordability: An Update on Health Reform in Massachusetts, Fall 2008, 28 HEALTH AFF. (WEB EXCLUSIVE) w578, w583 (2009). The shortage of primary care providers may have contributed to this problem. It is also possible that consumers are in a habit of using the ER for non-emergency care.
319. See, e.g., Austin, supra note 16;
320. Hunter, supra note 9 (showing that health law as a field is in fact structured around principles of risk allocation);
321. Light, supra note 16;
322. Stone, supra note 12.
323. See Alan Weil, Increments Toward What?, 20 HEALTH AFF. 68, 72 (2001).
324. See also sources cited supra note 211 (discussing social stratification effects of risk classification practices); see Jost, supra note 4 (discussing how differential costs played into a stratified system in Massachusetts);
325. Mariner, supra note 12.
326. Many think an individual mandate will face much greater challenges nationally than it did in Massachusetts. Prior to reform, the uninsurance rate in Massachusetts (8-10%) was much lower than the national rate of 16%. Massachusetts also had ready funding ready for reform - a large Uncompensated Care Pool and federal funding of $385 million from a Medicaid § 1115 waiver. Mary Ann Chirba-Martin & Andres Torres, Universal Health Care in Massachusetts: Setting the Standard for National Reform, 35 FORDHAM URB. L. J. 409, 412 (2008);
327. Christie L. Hager, Massachusetts Health Reform: A Social Compact and a Bold Experiment, 55 U. KAN. L. REV. 1313, 1315-16 (2007);
328. Elizabeth A. Weeks, Failure to Connect: The Massachusetts Plan for Individual Health Insurance, 55 U. KAN. L. REV. 1283, 1297-98 (2007).
329. See Stone, supra note 39, at 654.
330. See Nichols, supra note 146, at 180.
331. Id.
332. see also Stone, supra note 12, at 301.
333. See Nichols, supra note 146, at 180;
334. Stone, supra note 12, at 301.
335. See Nichols, supra note 146, at 180;
336. Stone, supra note 12, at 301.
337. See e.g., Simon supra note 16, at 784.
338. Baker, supra note 12, at 47
339. See Nichols, supra note 146, at 178;
340. Stone, supra note 12, at 292-94.
341. Swartz, supra note 44, at 95.
342. U. S. C. § 105 (2008);
343. U. S. C. § 125 (2007).
344. See, e.g., Melinda Beeuwkes Buntin et al., The Role of the Individual Health Insurance Market and Prospects for Change, 23 HEALTH AFF. 79, 81 (2004);
345. COLLINS et AL., supra note 57, at 3-4;
346. Michelle M. Doty et al., Failure to Protect: Why the Individual Insurance Market Is Not a Viable Option for Most U. S. Families, COMMONWEALTH FUND PUB. 1300, Feb. 2009, at 1-3.
347. See HOW PRIVATE HEALTH COVERAGE WORKS, supra note 102, at 7
348. See, e.g., Austin, supra note 16;
349. Hunter, supra note 9 (showing that health law as a field is in fact structured around principles of risk allocation);
350. Light, supra note 16;
351. Stone, supra note 12.
352. Of course, this expectation does not necessarily translate into low costs.
353. While it is difficult to generalize about risk selection practices because different practices are permitted or prohibited state-by-state, no state prohibits all risk selection. For an overview of state laws on risk-selection practices, see the Henry J. Kaiser Family Foundation Statehealthfacts.org Website, http://www.statehealthfacts.org/comparecat.jsp?cat=7 (last visited Mar. 5, 2010) (data on regulation in states' small group and individual markets) [hereinafter Statehealthfacts.org].
354. Without mandated benefits as part of coverage, fragmentation could also result in a less obvious way by limiting risk pooling for a particular condition. If a condition is included in one policy but not another, risk does not pool among the policy holders for such a condition. See supra Part B.
355. See Statehealthfacts.org, supra note 228.
356. MARK V. PAULY & BRADLEY HERRING, POOLING HEALTH INSURANCE RISKS 21, 33-38 (1999);
357. Mark V. Pauly & Bradley Herring, Risk Pooling and Regulation: Policy and Reality in Today's Individual Health Insurance Market, 26 HEALTH AFF. 770, 770 (2007).
358. See also Vip Patel & Mark V. Pauly, Guaranteed Renewability and the Problem of Risk Variation in Individual Health Insurance Markets, HEALTH AFF. (WEB EXCLUSIVE) w280 (2002) http://content.healthaffairs.org/cgi/content/full/ hlthaff.w2.280vl/DCl (arguing guaranteed renewability increases pooling in the individual market).
359. See Pauly & Herring, supra note 231.
360. See, e.g., Beeuwkes Buntin et al., supra note 224 (contending that poor pooling is a significant problem in the individual market).
361. See Gruber, supra note 4, at 574-75.
362. COLLINS et AL., supra note 57, at 4.
363. Id. at 21.
364. Id. at 4.
365. See DASCHLE et AL., supra note 2, at 47-50, 61-64. For a rich discussion of the politics that led to the creation of Medicare, see THEODORE R. MARMOR, THE POLITICS OF MEDICARE (2d ed. 2000). The compromise reached by Presidents Kennedy and Johnson and Ways and Means Chairman, Wilbur Mills became law in 1965 as Medicare Parts A and B and Medicaid.
366. Id. at 31-56.
367. In 1997, Congress authorized the State Children's Health Insurance Program (SCHIP) to extend coverage to children in families with income too high to qualify for Medicaid but unable to obtain or afford private health insurance coverage. The Balanced Budget Act of 1997, Title XXI State Children's Health Insurance Program (SCHIP), Pub. L. 105-33, H. R. 2015, 105th Congress (1997).
368. Medicaid does pool the expensive disabled beneficiaries with some healthy beneficiaries, including poor children and their parents, who are inexpensive. Yet, even with the presence of children in the risk pools, the average cost remains high because Medicaid covers expensive benefits for the disabled, including long term care.
369. 15 U. S. C. § 1011 (2006).
370. An insurer's highest risks might in effect pool across state lines through some carriers' reinsurance policies.
371. Amy Monahan, Federalism, Federal Regulation, or Free Market? An Examination of Mandated Health Benefit Reform, 2007 U. ILL. L. REV. 1361, 1365 (2007).
372. Every state currently has such mandated benefits laws, which might require insurers to cover certain providers (e.g., chiropractors), benefits (e.g., pediatric care), or patient populations (e.g., students up to the age of 30 on their parents' plans). See VICTORIA CRAIG BUNCH & J. P. WIESKE, COUNCIL FOR AFFORDABLE HEALTH INSURANCE, HEALTH INSURANCE MANDATES IN THE STATES 2008 (2008).
373. One study suggests mandated benefits increase the cost of basic health coverage from 20-50%. Id. at 1;
374. Amy B. Monahan, The Case for Federalizing Mandated Health Benefits, 32 ADMIN. & REG. L. NEWS 2, 2 (2007).
375. 29 U. S. C. § 1144 (2006).
376. Hunter, supra note 9, at 35 (describing ERISA preemption law). ERISA sets standards for employer-sponsored benefit plans, including group health plans, and preempts any state law that "relates to" an employer-sponsored benefit plan. 29 U. S. C. § 1144 (2006).
377. Under New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co., 514 U. S. 645, 651-52 (1995)
378. a state law that has a "connection with" an ERISA plan might also be preempted. Yet, ERISA "saves" from preemption those laws that regulate the business of insurance. 29 U. S. C. § 1144 (b) (2) (a) (2006). Nonetheless, the "deemer clause" excludes employee benefits plans from the savings clause, by providing that ERISA plans, such as selfinsured health insurance, "shall [not] be deemed to be an insurance company or any other insurer..."
379. Id. § 1144 (b) (2) (b).
380. For a discussion of ERISA and mandated benefits, see Amy Monahan, supra note 242, at 1371.
381. KFF EMPLOYER HEALTH BENEFITS: 2007, supra note 45, at 148, ex. 10.3.
382. Phyllis C. Borzi, There's "Private" and Then There's "Private": ERISA, Its Impact, and Options for Reform, 36 J. L. MED. & ETHICS 660, 661 (2008).
383. Pub. L. No. 104-191 § 101, 110 Stat. 1936 (1996) (note description of the Act on the first page).
384. See Robert Kuttner, The Kassebaum-Kennedy Bill - The Limits of Incrementalism, 337 NEW ENG. J. MED. 64, 64 (1997).
385. Id. at 65.
386. Id.
387. Pub. L. No. 104-191 § 101, 110 Stat. 1939 (1996).
388. Id. Further, any exclusion is shorted by the length of creditable coverage prior to enrollment so long as there was no break in coverage of 63 days or longer.
389. Id.
390. Id.
391. Kuttner, supra note 251, at 64-66
392. HIPAA eligible individuals are those who have had 18 months of creditable coverage in a group plan without a significant break of 63 days or more and have exhausted available COBRA benefits. Pub. L. No. 104-191 § 101, 110 Stat. 1939 (1996).
393. 26 U. S. C. § 106 (2007).
394. Gruber, supra note 4, at 574.
395. 26 U. S. C. § 125 (2007). Section 125 allows an employee to pay for certain expenses out of pre-tax income, excluding such amounts from income and payroll taxes.
396. CONGRESSIONAL BUDGET OFFICE, U. S. CONGRESS, CBO'S HEALTH INSURANCE STIMULATION MODEL: A TECHNICAL DESCRIPTION 1 (2007).
397. COLLINS et AL., supra note 57, at 2.
398. 26 U. S. C. § 213 (2007). Self-employed workers benefit from the same exclusion rules that apply to groups. Gruber, supra note 4, at 575. For some individuals, Health Savings Accounts provide some tax benefits. Pub. L. No. 108-173, § 1201,
399. 117 Stat. 2066 (2003). For discussion of HSAs and solidarity
400. see Amy Monahan, The Promise and Peril of Ownership Society Health Care Policy, 80 TULANE L. REV. 777 (2006).
401. 26 U. S. C. § 213 (2007). This assistance is further limited. It is only available to those who itemize deductions, which generally means itemized deductions exceed the standard deduction and it is only of value to those with federal tax liabilities.
402. THE HENRY J. KAISER FAMILY FOUND., TAX SUBSIDIES FOR HEALTH INSURANCE: AN ISSUE BRIEF 10-11 (2008).
403. If the markets are competitive, subscribers in these groups will benefit from lower or moderated premiums over time. If not, as some suggest may be the case, insurers might extract the surplus revenue from financiers longer term as increased profits. See James C. Robinson, Consolidation and the Transformation of Competition in Health Insurance, 23 HEALTH AFF c. 11 (2004) (describing a lack of competition in the insurance industry, leading to inefficiency and increased profits for insurers).
404. We can assume these financiers will pay a significant share of premiums or else the employee would not have opted out in the first place.
405. HOLOHAN & BLUM BERG, supra note 207, at 4.
406. Id.
407. MASS. DIV. OF HEALTH CARE FIN. AND POLV, HEALTH CARE IN MASSACHUSETTS: KEY INDICATORS 3 (2009), available at http://www.mass.gOv/Eeohhs2/docs/dhcfjp/r/ pubs/09/key-indicators-02-09.pdf [hereinafter KEY INDICATORS].
408. KEY INDICATORS, supra note 268, at 3.
409. Id.
410. Id.
411. SHARON K. LONG ET AL., URBAN INST., HEALTH INSURANCE COVERAGE IN MASSACHUSETTS: ESTIMATES FROM THE 2008 MASSACHUSETTS HEALTH INSURANCE SURVEY 26 (2008).
412. Id.
413. Id.
414. Pauly & Nichols, supra note 100, at w326.
415. Recent estimates show that covered workers on average contribute 16% of the premium for single coverage and 28% for family coverage. KFF EMPLOYER HEALTH BENEFITS: 2007, supra note 45, at 68. Covered workers in small firms are more likely to have 100% of premiums paid by their employer than workers in large firms, but when they are responsible for a part of the premium, they are more likely to have to pay over 50% of it.
416. Id.
417. Id.
418. MICHAEL J. NEW, THE CENTER FOR DATA ANALYSIS, THE EFFECT OF STATE REGULATIONS ON HEALTH INSURANCE PREMIUMS: A PRELIMINARY ANALYSIS 2 (2005).
419. Diane Rowland & Adele Shartzer, America's Uninsured: The Statistics and Back Story,. 36 J. L. MED. & ETHICS 618, 621-22 (2008).
420. COLLINS et AL., supra note 57, at 2.
421. Jost, supra note 32, at 1;
422. ROBERT E. LEU et al., The Commonwealth Fund, The Swiss and Dutch Health Insurance Systems: Universal Coverage and Regulated Competitive Insurance Markets 1 (2009).
423. For a comprehensive discussion of approaches to limiting risk selection and risk adjustment, see Katherine Baicker & William H. Dow, Risk Selection and Risk Adjustment: Improving Insurance in the Individual and Small Group Markets, 46 INQUIRY 215 (2009).
424. H. R. 3590, supra note 2.
425. Baicker & Dow, supra note 282 at 224.
426. H. R. 3590, supra note 2.
427. Baicker & Dow, supra note 282 at 224.
428. The Health Reform Law uses this approach to provide a bridge for high-risk enrollees in the individual market before requirements for state exchanges and insurance market regulations are in effect. H. R. 3590, supra note 2.
429. Baicker & Dow, supra note 282, at 220.
430. Deborah Cholett, Expanding Individual Health Insurance Coverage: Are High-Risk Pools The Answer?, HEALTH AFFAIRS (WEB EXCLUSIVE) w349, w349 (Oct. 23, 2002), http://content.healthaffairs.org/cgi/reprint/hlthaff.w2.349vl; Jost, supra note 107, at 5.
431. Baicker & Dow, supra note 282, at 220. Time will tell if the appropriations set aside in the Health Reform Law for high-risk pools will prove sufficient.
432. Swartz, supra note 44, at 90-91;
433. see KATHERINE SWARTZ, REINSURING HEALTH: WHY MORE MIDDLE-CLASS PEOPLE ARE UNINSURED AND WHAT GOVERNMENT CAN DO 101-02 (2006);
434. see also John Jacobi, Health Law Symposium: The Present and Future of Government-Funded Reinsurance, 51 ST. LOUIS U. L. J. 369, 369 (2007).
435. Swartz, supra note 44, at 90-91.
436. H. R. 3590, supra note 2.
437. Jost, supra note 107, at 5.
438. SWARTZ, supra note 291, at 101-02, 114-15.
439. Jost, supra note 107-For discussion of the difficulty of achieving intended results hy regulating insurance markets, see Deborah Chollet, What Have We Learned from Research on Individual Market Reform?, in STATE HEALTH INSURANCE MARKET REFORM 46, 53-58 (Alan C. Monheit & Joel C. Cantor eds., 2004);
440. Deborah J. Chollet et al., The Impact of Access Regulation on Health Insurance Market Structure (2000) http://aspe.hhs.gov/health/Reports/impact/ index.html (unpublished research submitted to ASPE, HHS) (showing impact of regulation depends on relative strength of intermediate effects on number of insurers in the market and market concentration).
441. See Baker & Simon, supra note 12, at 13.
442. H. R. 3590, supra note 2. See, e.g., Sara R. Collins et al., Issue Brief: How Health Care Reform Can Lower the Costs of Insurance Administration, 61 COMMONWEALTH FUND PUB. 1299 (2009) (outlining common elements of leading health reform proposals) [hereinafter COMMONWEALTH FUND PUB. 1299];
443. SARA R. COLLINS ET AL., THE COMMONWEALTH FUND, A ROADMAP TO HEALTH INSURANCE FOR ALL: PRINCIPLES FOR REFORM (2007), available at http://www.commonwealthfund.org/usr-doc/Collins-roadmaphltinsforall-1066.pdf [hereinafter ROADMAP].
444. Id.
445. Hager, supra note 213, at 1323;
446. see also Statehealthfacts.org, supra note 228 (providing information on risk-pooling techniques employed by various states).
447. See MASS. GEN. LAWS CH. 176J, § 8;
448. MASS. GEN. LAWS CH. 176M, § 2.
449. See also Statehealthfacts.org, supra note 228.
450. See Statehealthfacts.org, supra note 228.
451. See Hager, supra note 213, at 1316.
452. See Holohan & Blumberg, supra note 4, at 2.
453. See CONFERENCE COMMITTEE REPORT, supra note 69, at 4;
454. see also Chapter 58, supra note 3.
455. See CONFERENCE COMMITTEE REPORT, supra note 69, at 1;
456. see also Chapter 58, supra note 3, § 111M (establishing MGL 176Q).
457. An employer who fails to set up a cafeteria plan could be subject to pay for uninsured employee's hospital care. See Hager, supra note 213, at 1325;
458. see also CHAPTER 58, supra note 3.
459. Participants in a cafeteria plan must be permitted to choose among at least one taxable benefit (such as cash) and one qualified benefit. Qualified benefits include accident and health benefits. 26 U. S. C. § 125 (2007).
460. See 26 U. S. C. § 125 (2007).
461. Robert Steinbrook, M. D., Health Care Reform in Massachusetts - Expanding Coverage, Escalating Costs, 358 N. ENG. J. MED. 2757, 2759 (2008).
462. See RACHEL NARDIN ET AL., MASSACHUSETTS' PLAN: A FAILED MODEL FOR HEALTH CARE REFORM 8 (2009), http://www.pnhp.org/mass-report/mass-report-Final.pdf.
463. Id.
464. H. R. 3590, supra note 2.
465. See Holohan & Blumberg, supra note 207, at 4.
466. See id. Original estimated costs for subsidies for CommCare's subsidies were $400M for FY08; actual costs are estimated to be $647M.
467. Id. at 3. For FY09, original estimates were $725M; the amount requested for budget was $869M and actual costs may be even greater. Id.
468. Abby Goodnough, Massachusetts Cuts Back Immigrants' Health Care, N. Y. TIMES, Sept. 1, 2009, at A17.
469. MA Health Care Hit by Budget Cuts, MASS. ASS'N HEALTHCARE ACCESS MGMT., June 25, 2009, http://www.mahamweb.org/june-2009-news.html.
470. See Jost, supra note 4 (discussing coverage stratification in Massachusetts).
471. See Melissa B. Jacoby, Individual Health Insurance Mandates and Financial Distress: A Few Notes from the Debtor-Creditor Research and Debates, 55 U. KAN. L. REV. 1247, 1250-51 (2007);
472. Jost, supra note 4. Experts contend the state could have improved the quality of plans in the individual market by doing more to negotiate rates on behalf of all plans sold through the Connector and, further, by opening enrollment in Connector plans to employers of all sizes (rather than just those with under fifty employees), growing the number of enrollees, negotiating power, and ability to pool risks.
473. Holohan & Blumberg, supra note 207, at 5-8.
474. Steinbrook, supra note 309, at 2759.
475. H. R. 3590, supra note 2.
476. See Jost, supra note 107, at 1.
477. See, e.g., Light, supra note 16, at 2504-06.
478. Baker, supra note 12, at 38;
479. Jost, supra note 107.
480. Jost, supra note 107, at 3.
481. Jost, supra note 107, at 4.
482. See id.
483. See GORMAN ACTUARIAL LLC ET AL., IMPACT OF MERGING THE MASSACHUSETTS NON-GROUP AND SMALL GROUP HEALTH INSURANCE MARKETS 10 (December 26, 2006), available at http://www.mass.gov/Eoca/docs/doi/Legal-Hearings/NonGrp-SmallGrp/ FinalReport-12-26.pdf.
484. H. R. 3590, supra note 2.
485. The Health Reform Law provides and opportunity for greater pooling over time at the option of each state. Each state can choose to merge its individual and small group markets or if expand the population of people eligible to purchase insurance through the exchange to enrollees in large group plans as well (groups with over 100 employees).
486. H. R. 3590, supra note 2.
487. See Amy M. Lischko et al., Issue Brief: The Massachusetts Commonwealth Health Insurance Connector: Structure and Functions, 55 THE COMMONWEALTH FUND PUB. 1268 1, 11 (May 2009), available at http://www.commonwealthfund. Org/-/media/Files/Publications/Issue%20Brief/2009/May/Issue%20Brief.pdf.
488. H. R. 3590, supra note 2.
489. HOLOHAN & BLUMBERG, supra note 207, at 6-7.
490. Id.
491. See Allen et al., supra note 186, at Al.
492. E.g., Gruber, supra note 4, at 587 (explaining the idea of crowd-out);
493. Sharon K. Long, On the Road to Universal Coverage: Impacts of Reform in Massachusetts at One Year, 27 HEALTH AFFAIRS (WEB EXCLUSIVE) w270, w276 (2008).
494. Many were concerned that employers might drop ESI if their employees could get less expensive coverage and public subsidies through the Connector.
495. CHAPTER 58, supra note 3;
496. MASS. GEN. LAWS CH. 149, § 188 (2008);
497. MASS. CODE REGS. 15.05-15.06 (2008);
498. 5 MASS. CODE REGS. 16.03 (2008). Revenue from the "pay or play" fair share contribution was initially projected to be $50 million per year but is estimated to have raised only $6.7 million in 2007.
499. Robert Steinbrook, supra note 309, at 2759-60.
500. As discussed in Part III above, ERISA preempts all state laws that relate to an employee benefit plan (with certain exceptions). Despite several state-level attempts to enact employer mandates and wide public support of them, they have had mixed results in preemption challenges. Massachusetts (1998), Oregon (1989), and Washington (1994) all enacted but did not implement such mandates (Massachusetts returned to and eventually enacted one in 2006, as discussed above).
501. Shelley K. Hubner, State "Pay or Play" Employer Mandates: Prescribed or Preempted?, 20 THE HEALTH L. 15, 17-18 (2008);
502. Peter D. Jacobson & Rebecca L. Braun, Let 100 Flowers Wilt: The Futility of State-Level Health Care Reform, 55 U. KAN. L. REV. 1173, 1175-97 (2007) (describing failed employer mandates). Hawaii, Massachusetts, and San Francisco have the only active employer mandates.
503. See Hubner, supra, at 18-21. Hawaii's was exempted from preemption because it was passed before ERISA. Jacobson, supra, at 1175-76. Currently, the circuits are split on whether this type of plan design will survive a preemption challenge, an issue that will possibly be decided by the U. S. Supreme Court this session.
504. See generally Borzi, supra note 249 (discussing ERISA preemption as an obstacle to health reform). The Fourth Circuit held that the Maryland's "Fair Share Health Care Fund Act" was preempted. Retail Indus. Leaders Ass'n v. Fielder, 475 F.3d 180 (4th Cir. 2007). This act required employers with more than 10, 000 employees in the state (i.e., Wal-Mart) to either (1) spend eight percent of payroll on employee health care or (2) pay the same to the state.
505. Id. at 183. But see Golden Gate Rest. Ass'n v. City and County of San Francisco, 546 F.3d 639 (9th Cir. 2008) (upholding city pay or play ordinance). Opinions are mixed on whether Massachusetts's fair share contribution would survive a challenge. It has not been challenged yet and might not be challenged because of the seeming disinterest by potential challengers in doing so. Some believe the small fee imposed for failure to contribute ($295 per employee) may be considered to create a valid opt-out, which may be sufficient to avoid ERISA preemption.
506. Amy Monahan, Pay or Play Laws, ERISA Preemption, and Potential Lessons from Massachusetts, 55 U. KAN. L. REV. 1203, 1217-20 (2007). Preemption would, of course, not be a concern with an employer mandate in federal legislation.
507. A number of policy proposals have advocated elimination of ESI. See, e.g., RESEARCH AND POLICY COMM., COMM. FOR ECON. DEV., QUALITY, AFFORDABLE HEALTH CARE FOR ALL: MOVING BEYOND THE EMPLOYER-BASED HEALTH-INSURANCE SYSTEM (2007) (promoting market-based universal health insurance). Famously, elimination of ESI was at the heart of John McCain's health policy platform in the 2008 election.
508. See, e.g., TANNER, supra note 4, at 1, 7-9 (expressing particular concern with individual mandates).
509. HEALTH POLICY BRIEF: A PUBLIC HEALTH INSURANCE PLAN, supra note 41, at 2.
510. H. R. 3590, supra note 2, § 2001.
511. See, e.g., Alan R. Weil, Expanding Access Through Public Coverage: Permitting Families to use Tax Credits to Buy into Medicaid or SCHIP, 38 INQUIRY 146 (2001).
512. H. R. 3962, supra note 2, § 1703.
513. See generally WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE UNDERCLASS, AND PUBLIC POLICY (1987) (analyzing the flaws of race-specific and class-specific policies).
514. Mason Deparle & Robert Gebeloff, Once Stigmatized, Food Stamps Find Acceptance, N. Y. TIMES, Feb. 10, 2010, at A22.
515. See, e.g., Pamela Farley Short et al., A Workable Solution for the Pre-Medicare Population, 38 INQUIRY 214, 217-18 (2001).
516. See Janet Adamy, For Some Ages 55 to 64, Medicare Will Cost Too Much, WALL ST. J., Dec. 10, 2009, at A8;
517. Jane M. Von Bergen & Stacey Burling, Medicare Buy-in Could Benefit Involuntary Retirees, PHILA. INQUIRER, Dec. 10, 2009, at Al.
518. See JACOB S. HACKER, THE CASE FOR PUBLIC PLAN CHOICE IN NATIONAL HEALTH REFORM (2008), http://institute.ourfuture.org/files/Jacob-Hacker-Public-Plan- Choice.pdf [hereinafter HACKER, THE CASE FOR PUBLIC PLAN CHOICE];
519. JACOB S. HACKER, HEALTHY COMPETITION: HOW TO STRUCTURE PUBLIC HEALTH INSURANCE PLAN CHOICE TO ENSURE RISK-SHARING, COST CONTROL, AND QUALITY IMPROVEMENT (2009), http://www.ourfuture.org/files/Hacker-Healthy-Competition- FINAL.pdf [hereinafter HACKER, HEALTHY COMPETITION];
520. HEALTH POLICY BRIEF: A PUBLIC HEALTH INSURANCE PLAN, supra note 41;
521. JOHN HOLAHAN & LINDA BLUMBERG, URBAN INST., CAN A PUBLIC INSURANCE PLAN INCREASE Competition and Lower the Costs of Health Reform? (2008), http://www.urban.org/UploadedPDF/411762-public-insurance.pdf.
522. HACKER, HEALTHY COMPETITION, supra note 347, at i, 10.
523. The overhead costs of public programs are currently lower than that for private insurance, perhaps not surprising considering that public insurance does not incur expenses for risk selection. Experts estimate 2-5% overhead in Medicare and 7% in Medicaid, as compared to an average of 12% for private insurance, including the aforementioned 30-40% for private plans in the individual market in some states.
524. Steffie Woolhandler et al., Costs of Health Care Administration in the United States and Canada, 349 NEW ENG. J. MED. 768, 771-72 (2003).
525. COLLINS et AL., supra note 298, at 3-4;
526. HACKER, THE CASE FOR PUBLIC PLAN CHOICE, supra note 347, at 5-6.
527. See Robinson, supra note 265, at 21-22 (explaining that consolidation within each state reduces competitive behavior among health plans).
528. Cf. Theodore Marmor et al., The Ohama Administration's Options for Health Care Cost Control: Hope Versus Reality, 150 ANNALS OF INTERNAL MED. 485, 487 (2009) (noting that a larger public plan will have greater purchasing power to control prices). This aspect of the public plan is of particular concern to its opponents and to some providers, who are concerned that the public plan's reimbursements to doctors and hospitals will be unacceptably low.
529. See, e.g., Am. Hosp. Ass'n, Hospitals and Health Reform 1-2, http://www.haponline.org/downloads/AHA-Health-Reform-Policy-Initiatives-and-Key- Issues-for-Hospitals.pdf.
530. Marmor et al., supra note 351, at 486-87
531. HACKER, THE CASE FOR A PUBLIC PLAN CHOICE, supra note 347, at 8-11.
532. Lester, supra note 150, at 46.
533. Id.
534. See Fehr & Gintis, supra note 196;
535. Fehr & Schmidt, supra note 196;
536. Lester, supra note 150, at 22-31, 43-46.
537. Cf. Hunter, supra note 9, at 51-56. Nan Hunter contends that the structure of employer sponsor insurance might be ideal for building notions of health solidarity within the workplace if health benefits were allocated through a process of deliberative democracy in the control of the employees themselves.
538. Id.
539. Medicare also shows the risks of incremental reform. Medicare was intended to be a stepping stone on the way to universal health care. Clearly, it never got us there and now serves as a barrier. as we engage in incremental defragmentation, we risk redefining lines of risk sharing somewhere on the line to full defragmentation at an intermediary point that will then become calcified itself.
540. See, e.g., William Wong, Don't Touch My Medicare Benefits!, S. F. GATE (Aug. 25, 2009, 07:00 PST), http://www2.sfgate.com/cgibin/blogs/wwong/detail? blogid=156&entry-id=45987.
541. Hunter, supra note 9, at 51-56.