Health reform: What's insurance got to do with it? Recognizing health insurance as a separate species of insurance

American Journal of Law and Medicine

Volumn 36, Issue 2-3, 2010, Pages 436-451

  Mariner, Wendy K ^a,b  

^a BOSTON UNIVERSITY   (United States)

^b BOSTON UNIVERSITY SCHOOL OF MEDICINE   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; HEALTH CARE DELIVERY; HEALTH CARE POLICY; HEALTH INSURANCE; HUMAN; INDUSTRY; ORGANIZATION AND MANAGEMENT; UNITED STATES;

HEALTH CARE REFORM; HEALTH SERVICES ACCESSIBILITY; HUMANS; INDUSTRY; INSURANCE, HEALTH; UNITED STATES;

EID: 77957254025     PISSN: 00988588     EISSN: None     Source Type: Journal    
DOI: 10.1177/009885881003600208     Document Type: Article

References (209)

1. See, e.g., TOM DASCHLE ET AL., CRITICAL: WHAT WE CAN DO ABOUT THE HEALTH-CARE CRISIS 4 (2008);
2. Wendy K. Mariner, Social Solidarity and Personal Responsibility in Health Reform, 14 CONN. INS. L.J. 199, 199 (2008).
3. See, e.g., Transcript, Obama's Fifth News Conference, N.Y. TIMES, July 22, 2009, available at www.nytimes.com/2009/07/22/us/politics/22obama. transcript.html;
4. Remarks by the President in the State of the Union Address, Jan. 27, 2010, available at http://www.whitehouse.gov/the-press-office/remarks-president- state-union-address.
5. The Patient Protection and Affordable Care Act, Pub. L. 111-148, Mar. 23, 2010,
6. as amended by the Health Care and Education Affordability Act, Pub. L. 111-152, Mar. 30, 2010 [hereinafter "the 2010 Act"].
7. See, e.g., REGINA HERZLINGER, WHO KILLED HEALTH CARE? 15 (2007) (criticizing insurance benefits);
8. LAURENCE KOTLIKOFF, THE HEALTHCARE FIX UNIVERSAL INSURANCE FOR ALL AMERICANS 15 (2007) (arguing for a single health insurance system for the entire country).
9. See, e.g., KENNETH ABRAHAM, DISTRIBUTING RISK: INSURANCE, LEGAL THEORY, AND PUBLIC POLICY (1986) (finding one of the primary values of insurance law is the proper distribution of risk);
10. MALCOLM CLARKE, POLICIES AND PERCEPTIONS OF INSURANCE: AN INTRODUCTION TO INSURANCE LAW 5-6 (1997) (describing health insurance as a risk spreading device). Insurance law casebooks typically describe insurance in these terms and, until recently, included only brief sections on health insurance.
11. See, e.g., EMERIC FISCHER ET AL., PRINCIPLES OF INSURANCE LAW (3d ed. 2006) (devoting 19 pages-of 1080 pages-to discussion of health insurance);
12. KENNETH ABRAHAM, INSURANCE LAW AND REGULATION: CASES AND MATERIALS (4th ed. 2005) (devoting 53 pages-of 774 pages-to discussion of health insurance).
13. See INSIDE THE MINDS: THE INSURANCE BUSINESS: INDUSTRY LEADERS ON MANAGING RISKS, ENSURING INVESTMENTS, & PROTECTING ASSETS 8 (Marissa Berenson ed., 2004);
14. Press Release, America's Health Ins. Plans, AHIP Statement on House Passage of HR 3962 (Nov. 7, 2009), available at http://www.ahip.org/content/ pressrelease.aspx?docid=28730;
15. STAFF OF H.R. COMMITTEE ON WAYS & MEANS REPUBLICANS, THE COMMONSENSE HEALTHCARE REFORM AND AFFORDABILITY ACT: MAKING HEALTH INSURANCE MORE AFFORDABLE FOR FAMILIES, AFFORDABLE FOR SMALL BUSINESSES & AFFORDABLE FOR AMERICA 2 (Comm. Print 2009) (prohibiting "arbitrary caps" and "unjust" rescission).
16. Bruce G. Bodaken, Where Does the Insurance Industry Stand on Health Reform Today?, 27 HEALTH AFF. 667, 670-71 (2008) (noting that guaranteed issue and not basing rates on health status threaten "basic and long-standing principles of the health insurance business," although some insurers favored reforms like individual mandates that expand the market).
17. See also Interview by Bill Moyers with Wendell Potter, Bill Moyers Journal: Profits or Patients (PBS television broadcast July 10, 2009), available at http://www.pbs.org/moyers/journal/07102009/watch2.html.
18. For an historical perspective, see THE POLITICS OF HEALTH CARE REFORM: LESSONS FROM THE PAST, PROSPECTS FOR THE FUTURE (James A. Morone & Gary S. Belkin eds., 1994) (providing a compilation of articles discussing insurance reform).
19. See, e.g., DASCHLE, supra note 1, at xiii (arguing for a universal health care system);
20. COMMITTEE ON THE CONSEQUENCES OF UNINSURANCE, INSTITUTE OF MEDICINE, INSURING AMERICA'S HEALTH: PRINCIPLES AND RECOMMENDATIONS 110-11 (2004) (describing a vision to expand coverage to those without health insurance);
21. The Physicians' Working Group for Single-Payer National Health Insurance, Special Communication, Proposal of the Physicians' Working Group for Single-Payer National Health Insurance, 290 JAMA 798, 798-805 (2003).
22. See, e.g., The Universal Declaration of Human Rights, G.A. Res. 217A, U.N. GAOR, 3d Sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948);
23. Sofia Gruskin & Daniel Tarantola, Health and Human Rights, in PERSPECTIVES IN HEALTH AND HUMAN RIGHTS 3, 11 (Sofia Gruskin, Michael Grodin, George Annas & Stephen P. Marks eds. 2005);
24. Norman Daniels, Brendan Saloner & Adriane H. Gelpi, Access, Cost, and Financing: Achieving an Ethical Health Reform, 28 HEALTH AFF. w909, w909-16 (2009);
25. Sofia Gruskin et al., Health and Human Rights 1, History, Principles and Practice of Health and Human Rights, 370 LANCET 449, 449-55 (2007);
26. Eleanor D. Kinney, The International Right to Health: What Does This Mean for Our National and World?, 34 IND. L. REV. 1457, 1457-58 (2001).
27. See, e.g., Deceptive Health Industry Practices: Are Consumers Getting What They Paid For?- Part I: Hearing Before the S. Comm. on Commerce, Sci., & Transp., 111th Cong. (Mar. 26, 2009);
28. Deceptive Health Industry Practices: Are Consumers Getting What They Paid For?-Part II: Hearing Before the S. Comm. on Commerce, Sci., & Transp., 111th Cong. (Mar. 31, 2009);
29. see also Coverage Denied: How the Current Health Insurance System Leaves Millions Behind, http://www.healthreform.gov/reports/denied-coverage/index.html.
30. For a different perspective on assumptions about reform, see David A. Hyman, Employment-Based Health Insurance and Universal Coverage: Four Things People Know That Aren't So, 9 YALE J. HEALTH POLV, L. & ETHICS 435, 435-52 (2009).
31. Mariner, supra note 1, at 200.
32. This will also require modifying some insurance law doctrines to accommodate the hybrid nature of health insurance, a topic that deserves more extensive discussion, but is beyond the scope of this article. See Thomas Morawetz, Insurance: How It Matters as Psychological Fact and Political Metaphor, 6 CONN. INS. L.J. 1, 8 (1999) ("The line between insurance as a commodity, as an option, and insurance as a compulsory part of government regulation is always a moving target.").
33. Kaiser Family Foundation & Health Research & Educational Trust, Employer Health Benefits 2008 Annual Survey, 1, available at http://ehbs.kff.org/pdf/7790.pdf [hereinafter "Employer Health Benefits 2008 Annual Survey"].
34. Congress could achieve universal coverage without the use of private sector insurance by expanding Medicare coverage to all or creating new, supplementary programs funded from tax revenues, as some scholars, policy analysts, and organizations have recommended. See, e.g., JULIUS B. RICHMOND & RASHI FEIN, THE HEALTH CARE MESS: How WE GOT INTO IT AND WHAT IT WILL TAKE TO GET OUT 243 (2005);
35. John Nichols, Three Words Mr. President: "Medicare for All," THE NATION, Sept. 8, 2009, http://www.thenation.com/blogs/thebeat/469901/three- words-mr-president-medicare-for -all (Sept. 8, 2009, 10:07 EST).
36. Political, as well as scholarly, opposition has precluded such an approach. Jacob S. Hacker, Putting Politics First: Health System Reform Can Be Successful This Time If Policymakers Learn the Lessons From the Past, 27 HEALTH AFF. 718, 721 (2008).
37. See, e.g., DAVID HYMAN, MEDICARE MEETS MEPHISTOPHELES (2006);
38. Alan B. Miller, Opinion, Medicare for All Isn't the Answer, WALL ST. J., Aug. 13, 2009, at A15;
39. Peter Ferrara, Medicare for All Is a Killer, AMERICAN SPECTATOR, May 27, 2009, http://spectator.org/archives/2009/05/27/medicare-for-all-is-a-killer.
40. 14 See the 2010 Act, §1501 (adding §5000A to the Internal Revenue Code of 1986), as amended by the 2010 Act, §10106, and by the Reconciliation Act, §1002. At least fourteen states have filed challenges to the 2010 Act, claiming that it violates Congress's power under the Commerce Clause, the power to tax and spend, the Tenth Amendment or federalism generally. See Warren Richey, Attorneys General in 14 States Sue to Block Healthcare Reform Law, THE CHRISTIAN SCI. MON., Mar. 23, 2010, http://www.csmonitor.com/USA/Justice/2010/0323/Attorneys-general-in-14-states- sue-toblock-healthcare-reform-law.
41. The constitutional authority for a federal requirement that all individuals have coverage is beyond the scope of this article. For the basic arguments for and against the propositions that that an individual mandate is within Congress's Commerce Power and that fees levied on individuals without coverage are not direct taxes, see David B. Rivkin, Jr. et al., Debate, A Healthy Debate: The Constitutionality of an Individual Mandate, 158 U. PA. L. REV. PENNUMBRA 93 (2009), http://www.pennumbra.com/debates/pdfs/HealthyDebate. pdf. If challenges to the individual mandate succeed, Congress could achieve the same result without raising constitutional questions by increasing the income tax, Medicare tax, or Social Security tax, or imposing a new tax on all taxpayers, accompanied by a tax credit or deduction for those who have public or private coverage. See the 2010 Act, §1401 (adding §36B to the Internal Revenue Code of 1986), as amended by the 2010 Act, §10105, and by the Reconciliation Act, §1001.
42. Remarks by the President in Discussion on Insurance Reform at Bipartisan Meeting on Health Care Reform, Feb. 25, 2010, available at http://www. whitehouse.gov/the-pressoffice/remarks-president-discussion-insurance-reform- bipartisan-meeting-health-carereform;
43. Michael D. Shear & Debbi Wilgoren, As House and Senate Negotiate, Obama FineTunes His Pitch, WASH. POST, July 29, 2009, http://voices. washingtonpost.com/44/2009/07/29/obama-to-offer-eightpoint-arg.html?hpid= topnews;
44. see also Affordable Health Choices Act, S. 1679, 111th Cong. § 2701 (1st Sess. 2009);
45. America's Healthy Future Act of 2009, S. 1796, 111th Cong. §2204 (1st Sess. 2009);
46. America's Affordable Health Choices Act, H.R. 3200, 111th Cong. §113 (1st Sess. 2009).
47. Patient Protection and Affordable Care Act, supra note 3, originally H.R. 3590, 111th Cong, (as passed by Senate Dec. 24, 2009).
48. Affordable Health Care for America Act, H.R. 3962, 111th Cong, (as passed by House Nov. 7, 2009).
49. The prohibitions and requirements of the 2010 Act apply to private insurance plans in the individual and group market, including qualified plans offered in new health insurance exchanges, the 2010 Act, Title I, Subtitle D, and not to grandfathered employer-sponsored plans subject to the Employee Retirement Income Security Act, 29 U.S.C. §§1001 et seq, although certain provisions will apply to new employer-sponsored plans.
50. The 2010 Act, §1201 (2010) (adding Public Health Service Act, §2704, 42 U.S.C. §§300gg et seq.);
51. H.R. 3962, 111th Cong. §211 (2009);
52. S. 1679, 111th Cong. §101 (2009) (to amend Public Health Service Act, 42 U.S.C. §2705);
53. S. 1796, 111th Cong. §1001 (2009) (same);
54. H.R. 3200, 111th Cong. §111 (2009).
55. The 2010 Act, §1201 (2010) (adding Public Health Service Act, §§2702, 2703 to guarantee issue and renewal, respectively);
56. H.R. 3962, 11th Cong. §212 (2009);
57. S. 1679, 111th Cong. §101 (2009);
58. S. 1796, 111th Cong. §1001 (2009);
59. H.R. 3200, 111th Cong. §122 (2009).
60. The 2010 Act, §1001 (2010) (adding Public Health Service Act, §2712 to prohibit rescission);
61. H.R. 3962, 111th Cong. §103 (2009);
62. S. 1679, 111th Cong. §101 (2009);
63. H.R. 3200, 111th Cong. §112 (2009).
64. The 2010 Act, §1201 (2010) (adding Public Health Service Act §2705);
65. H.R. 3962, 111th Cong. §211 (2009).
66. The 2010 Act, §1302(b)(4)(B) (2010);
67. H.R. 3962, 111th Cong. §§213, 214 (2009);
68. S. 1679, 111th Cong. §101 (2009);
69. S. 1796, 111th Cong. §1001 (2009);
70. H.R. 3200, 111th Cong. § 113 (2009).
71. The 2010 Act, §1201 (2010) (adding Public Health Service Act, §2701(a)(1)(A)(iii) to limit premium rate variation based on age to 3:1);
72. S. 1679, 111th Cong. §101 (2009);
73. S. 1796, 111th Cong. §1001 (2009);
74. H.R. 3200, 111th Cong. §114 (2009);
75. H.R. 3962, 111th Cong. §214 (2009).
76. 2010 Act, §1311(j) (2010);
77. H.R. 3962, 111th Cong. §214 (2009);
78. H.R. 3200, 111th Cong. §114 (2009).
79. The 2010 Act, §1001 (2010) (no lifetime or annual limits on dollar value of benefits);
80. H.R. 3962, 111th Cong. §§106, 109 (2009);
81. S. 1697, 111th Cong. §101 (2009);
82. H.R. 3200, 111th Cong. §122(a)(3) (2009).
83. The 2010 Act, §§1201, 1302(c);
84. H.R. 3962, 111th Cong. §222(c) (2009);
85. S. 1796, 111th Cong. §1201 (2009);
86. H.R. 3200, 111th Cong. §122(c) (2009).
87. KAISER FAMILY FOUNDATION/HARVARD SCHOOL OF PUBLIC HEALTH, THE PUBLIC'S HEALTH CARE AGENDA FOR THE NEW PRESIDENT AND CONGRESS 10 (Jan. 2009), http://kff.org/kaiserpolls/7853.cfm. A recent poll of public opinions of the 2009 House and Senate Bills find that 63% of those surveyed favor provisions that prohibit insurers from denying coverage on the basis of health conditions.
88. KAISER FAMILY FOUNDATION, KAISER HEALTH TRACKING POLL: PUBLIC OPINION ON HEALTH CARE ISSUES 5 (Jan. 2010), http://kff.org/kaiserpolls/8042.cfm.
89. Tom Baker, Containing the Promise of Insurance: Adverse Selection and Risk Classification, 9 CONN. INS. L.J. 371, 377 (2003).
90. EMMETT J. VAUGHAN & THERESE M. VAUGHAN, FUNDAMENTALS OF RISK AND INSURANCE 169-71 (10th ed. 2008);
91. Harry A. Woodman, Principles of Risk Selection and Classification, in MEDICAL SELECTION OF LIFE RISKS 25, 35 (R.D.C. Brackenridge & W. John Elder eds., 4th ed. 1998).
92. See, e.g., the 2010 Act, §1201 (2010) (adding Public Health Service Act, §2701 to allow premium rate variations based on individual or family coverage, rating area, age, and tobacco use);
93. H.R. 3962, 111th Cong. §213 (2009);
94. H.R. 3590, 11th Cong. §1201 (2009).
95. Both bills also limit cost sharing. Supra note 28.
96. National health spending was $2.3 trillion in 2008, or $7,681 per person, and 16.2% of GDP. See Micah Hartman et al., Health Spending Growth At A Historic Low in 2008, 29 HEALTH AFF. 147, 147 (2010).
97. Jonathan Gruber, Covering the Uninsured in the United States, 46 J. ECON. LIT. 571, 572, 587 (Sept. 2008). The 2010 Act provides for tax credits and subsidies.
98. ELLIOT K. WICKS, RESTRUCTURING HEALTH INSURANCE MARKETS, NATIONAL ACADEMY OF SOCIAL INSURANCE 1, 13-14 (Jan. 2009), available at http://www.nasi.org/ research/2009/restructuring-health-insurance-markets.
99. Victor R. Fuchs, The Proposed Government Health Insurance Company - No Substitute for Real Reform, 360 NEW ENG. J. MED. 2273, 2275 (2009);
100. Jacob S. Hacker, Health Care 2009 - The Why and How of "Public-Plan Choice," 360 NEW ENG. J. MED. 2269, 2269 (2009);
101. Mark Hall, The Structure and Enforcement of Health Insurance Rating Reforms, 37 INQUIRY 367, 377-78 (2001).
102. National Conference of State Legislatures, Health Reform: State Examples (Mar. 22, 2010), http://www.ncsl.org/default.aspx?tabid=17691.
103. Health Insurance Portability and Accountability Act, 29 U.S.C. §1182 (West 2008).
104. Id.
105. See Deborah S. Hellman, Is Actuarially Fair Insurance Pricing Actually Fair?: A Case Study in Insuring Battered Women, 21 HARV. C.R.-C.L. L. REV. 355, 355-56 (1997).
106. Genetic Information Nondiscrimination Act, 42 U.S.C. §2000ff (West 2008).
107. Nathan Olivarez-Giles, California Health Insurers Discriminate Against Women, Lawsuit Contends, L.A. TIMES, Jan. 28. 2009, at CI.
108. Cameron A. Mustard et al., Sex Differences in the Use of Health Care Services, 338 NEW ENG. J. MED. 1678, 1678 (1998);
109. Paul D. Cleary et al., Sex Differences in Medical Care Utilization: An Empirical Investigation, 23 J. HEALTH & Soc BEHAV. 106, 106 (1982).
110. Jane Slater, Colorado Women Pay More for Insurance Than Men, THEDENVERCHANNEL, Oct. 19, 2009, http://www.thedenverchannel.com/health/ 21343272/detail.html;
111. Barbara Barrett, NC. Lets Insurers Charge Women More, MCCLATCHY, Oct. 12, 2009, http://www.mcclatchydc.com/staff/story/76996.html.
112. See Deborah Stone, The Struggle for the Soul of Insurance, 18 J. HEALTH, POL. POLY & L. 287, 287-88 (1993).
113. Employer Health Benefits 2008 Annual Survey, supra note 12, at 154-55.
114. 42 U.S.C. §§1395 et seq. (2006).
115. THEODORE MARMOR, ET AL., AMERICA'S MISUNDERSTOOD WELFARE STATE: PERSISTENT MYTHS, ENDURING REALITIES 178-79 (1990). However, Medicare beneficiaries may pay a premium for Part B (physician services), and purchase a Medicare Advantage health plan from a private insurer under Part C in lieu of traditional Medicare Parts A and B coverage, and also purchase a prescription drug coverage plan from a private insurer under Part D.
116. TOTAL NUMBER OF MEDICARE BENEFICIARIES, KAISER FAMILY FOUNDATION STATE HEALTH CARE FACTS (2009), http://www.statehealthfacts.org/comparemaptable.jsp? ind=290&cat=6.
117. INST, OF MED., COMBATING TOBACCO USE IN MILITARY AND VETERAN POPULATIONS 34 (2009).
118. Centers for Medicare & Medicaid Services & Center for Medicaid and State Operations, Trends in Medicaid Persons Served and Vendor Payments: Fiscal Years 1975-2005, available at www.cms.hhs.gov/MedicareMedicaidStatSupp/ downloads/08Fig13.3.pdf;
119. TOTAL MEDICAID ENROLLMENT, KAISER FAMILY FOUNDATION STATE HEALTH CARE FACTS (2009), http://www.statehealthfacts.org/comparemaptable.jsp?ind= 198&cat=4;
120. KAISER COMM'N ON MEDICAID AND THE UNINSURED, SCHIP TURNS 10: AN UPDATE ON ENROLLMENT AND THE OUTLOOK ON REAUTHORIZATION FROM THE PROGRAM'S DIRECTORS 5 (2007), available at www.kff.org/medicaid/upload/7642.pdf.
121. MARMOR, supra note 46, at 179.
122. Thomas M. Seiden & Merrile Sing, The Distribution of Public Spending for Health Care in the United States, 2002, HEALTH AFF. W349, w353, w357 (2008) (public spending on health care for the non-institutionalized civilian population averaged 56% of total spending; adding institutionalized civilians raises public spending to more than 64% of the total).
123. See Michelle M. Doty et al., Failure to Protect: Why the Individual Insurance Market Is Not a Viable Option for Most U.S. Families, THE COMMONWEALTH FUND, 6-7, (2009), available at http://www.commonwealthfund.Org/-/media/Files/ Publications/Issue%20Brief/2009/Jul/Fa ilure%20to%20Protect/l300-Doty-failure- to-protect-individual-ins-market-ib-v2.pdf.
124. Press Release, Agency for Healthcare Research and Quality, Nearly 11 Million Americans Have Individual Health Insurance Policies, But Some Only for a Short Time, (Jan. 7, 2009).
125. Jon Gabel et al., Individual Insurance: How Much Financial Protection Does it Provide?, HEALTH AFF., Apr. 7, 2002, http://content.healthaffairs.org/ cgi/content/full/hlthaff.w2.172v1/DC1.
126. Employer Health Benefits 2008 Annual Survey, supra note 12, at 58.
127. U.S. DEP'T OF LABOR, NATIONAL COMPENSATION SURVEY: EMPLOYEE BENEFITS IN PRIVATE INDUSTRY IN THE UNITED STATES, 2005 6 (May 2007), available at http://www.bls.gov/ncs/ebs/sp/ebbl0022.pdf.
128. Employer Health Benefits 2008 Annual Survey, supra note 12, at 65.
129. Social Solidarity, supra note 1, at 209.
130. VAUGHAN & VAUGHAN, supra note 30, at 41.
131. Compare Griffin Sys., Inc. v. Washburn, 505 N.E.2d 1121 (111. App. Ct. 1987) (finding that a "mechanical service contract" covering automobile parts repair services was an insurance policy),
132. with Griffin Sys., Inc. v. Ohio Dep't of Ins., 575 N.E.2d 803 (Ohio 1991) (finding the same company's similar contract to be a service contract and not insurance).
133. See SCA Serv. Inc. v. Transp. Ins. Co., 646 N.E.2d 394, 397 (Mass. 1995) (finding that the basic purpose of insurance is to protect against fortuitous events, not known certainties).
134. See generally, JEFFREY W. STEMPEL, STEMPEL ON INSURANCE CONTRACTS (3d ed. 2006 & Supp. 2008);
135. PETER J. KALIS ET AL., POLICYHOLDER'S GUIDE TO THE LAW OF INSURANCE COVERAGE (1st ed. 1997 & Supp. 2008).
136. See Joan T. Schmit, A New View of the Requisites of Insurability, 53 J. RISK & INS. 320, 325-26 (1986);
137. JEFFREY W. STEMPEL, INTERPRETATION OF INSURANCE CONTRACTS: LAW AND STRATEGY FOR INSURERS AND POLICYHOLDERS 27 (1994).
138. M. Elizabeth Medaglia et al., The Status of Certain Nonfortuity Defenses in Casualty Insurance Coverage, 30 TORT & INS. L.J. 943, 943 (1994) (finding that the principle that insurance covers only fortuitous losses is universally recognized).
139. See, e.g., Stonehenge Engineering Corp. v. Employers Ins. of Wausau, 201 F.3d 296, 301-02 (4th Cir. 2000);
140. U.S. Liability Ins. Co. v. Selman, 70 F.3d 684, 690-91 (1st Cir. 1995);
141. Outboard Marine Corp. v. Liberty Mut. Ins. Co., 607 N.E.2d 1204, 1210 (1992);
142. 7 LEE R. RUSS & THOMAS F. SEGALLA, COUCH ON INSURANCE §§102.8-102.9 (3d ed. 2009).
143. Stonehenge Engineering Corp., 201 F.3d at 301-02. See also U.S. Liability Ins. Co., 70 F.3d at 690 ("[T]he presence of risk runs to the very essence of an insurance contract. Where there is no risk of loss - as where a loss has already occurred before a policy takes effect insurance ceases to serve its socially useful function of risk-spreading.").
144. Morawetz, supra note 11, at 4.
145. The 2010 Act, §§1001 (adding §2713 to the Public Health Service Act), 1302(b)(I)(I), 1301(b)(I)(J). Dental and eye care are typically covered by separate policies from general health insurance, but do cover preventive examinations.
146. See 1 ERIC MILLS HOLMES & MARK S. RHODES, APPLEMAN ON INSURANCE §1.4 (2d ed. 1996);
147. Russ & SEGALLA, supra note 63, §101.2.
148. Andrea Sisko et al., Health Spending Projections Through 2018: Recession Effects Add Uncertainty to the Outlook, HEALTH AFF. W346, W346 (Feb. 24, 2009), http://content.healthaffairs.Org/cgi/reprint/28/2/w346.
149. Peter S. Hussey et al., Controlling U.S. Health Care Spending - Separating Promising from Unpromising Approaches, 361 NEW ENG. J. MED. 2109, 2110 (2009).
150. The 2010 Act and earlier federal reform proposals have been criticized for failing to significantly alter payment structures for health care services to reduce costs. See, e.g., Theodore Marmor et al., The Obama Administration's Options for Health Care Cost Control: Hope Versus Reality, 150 ANNALS OF INTERNAL MED. 485, 488 (2009). Massachusetts deferred efforts to control health care costs until after implementing its 2006 health insurance reform law.
151. See 2006 Mass. Acts 58. A later Massachusetts law created a Special Commission to study cost control. 2008 Mass. Acts ch. 305, §44 (2008). The Special Commission's 2009 recommendations for payment reforms have not received notable support from providers. See MASSACHUSETTS OFFICE OF HEALTH AND HUMAN SERVICES, RECOMMENDATIONS OF THE SPECIAL COMMISSION ON THE HEALTH CARE PAYMENT SYSTEM 49-52 (July 16, 2009), available at http://www.mass.gov/Eeohhs2/docs/ dhcfp/pc/Final-Report/Final-Report.pdf.
152. CAROL A. HEIMER, REACTIVE RISK AND RATIONAL ACTION: MANAGING MORAL HAZARD IN INSURANCE CONTRACTS 13 (1985) (noting that co-insurance and deductibles are methods to "further unbalance incentives in a situation in which the insurers have selected policyholders whose incentives are already skewed against loss").
153. Mark V. Pauly, The Economics of Moral Hazard: Comment, 58 AM. ECON. REV. 531, 533 (1968).
154. Wendy K. Mariner, Can Consumer-Choice Plans Satisfy Patients? Problems with Theory and Practice in Health Insurance Contracts, 69 BROOK. L. REV. 485, 491-95 (2004) (distinguishing the roles of patients and consumers).
155. Tom Baker, On the Genealogy of Moral Hazard, 75 TEX. L. REV. 237 (1996).
156. Eric D. Beal, Comment, Posner and Moral Hazard, 7 CONN. INS. L.J. 81, 83 (2005).
157. Employer Health Benefits 2008 Annual Survey, supra note 12, at 174, 182-85.
158. Nondiscrimination and Wellness Programs in Health Coverage in the Group Market, 71 Fed. Reg. 75013, 75014 (Dec. 13, 2006). The 2010 Act continues the exemption. The 2010 Act, §1201 (adding Public Health Service Act §2705(j)).
159. Larry Cohen et al., Reducing Health Care Costs Through Prevention 1 (Prevention Inst, and The Cal. Endowment, Working Paper, Aug. 2007), www.preventioninstitute.org/documents/HE-HealthCareReformPolicyDraft-091507-pdf.
160. Matthew G. Marin & Jessica Nutik Zitter, Expenditures Associated with Preventive Health Care, 39 PREVENTIVE MED. 856, 861 (2004);
161. Sheila Leatherman, et al., The Business Case for Quality: Case Studies and an Analysis, 22 HEALTH AFF. 17, 21 (2003);
162. Steven G. Aldana, Financial Impact of Health Promotion Programs: A Comprehensive Review of the Literature, 15 AM. J. HEALTH PROMOTION 296 (2001);
163. Reed Abelson, Medicare Finds How Hard It Is to Save Money, N.Y. TIMES, April 7, 2008, at A1.
164. LOUISE B. RUSSELL, Is PREVENTION BETTER THAN CURE? 109-12 (1986);
165. Joshua T. Cohen et al., Does Preventive Care Save Money? Health Economics and the Presidential Candidates, 358 NEW ENG. J. MED. 661, 662-63 (2008);
166. Pieter H. M. van Baal et al., Lifetime Medical Costs of Obesity: Prevention No Cure for Increasing Health Expenditure, PUB. LIBRARY OF SERVICE, Feb. 5, 2008, http://www.plosmedicine.Org/article/info:doi/10.137l/journal.pmed. 0050029.
167. See David Hilzenrath, Misleading Claims about Safeway Wellness Incentives Shape Health-care Bill, WASH. POST, Jan. 17, 2010, at G1 (finding that, contrary to earlier reports, Safeway's health insurance premiums increased after its wellness program took effect).
168. Louise B. Russell, Preventing Chronic Disease: An Important Investment, But Don't Count on Cost Savings, 28 HEALTH AFF. 42, 42-43 (2009).
169. Pre-2010 reform bills also required coverage of preventive services. See, e.g., H.R. 3962, 111th Cong. §§112, 222(b)(8), 222(b)(10) (2009);
170. S. 1679, 111th Cong. §§101, 362, 367 (2009);
171. S. 1796, 111th Cong. §§1901, 2001-2005 (2009);
172. H.R. 3200, 111th Cong. §122(b)(8) (2009).
173. Sean Keehan et al., Health Spending Projections Through 2017: The Baby Boom Generation is Coming to Medicare, 27 HEALTH AFF. w145 (2008), http://content.healthaffairs.org/cgi/reprint/27/2/w145.
174. Pat O'Malley, Imagining Insurance: Risk, Thrift, and Life Insurance in Britain, in EMBRACING RISK: THE CHANGING CULTURE OF INSURANCE AND RESPONSIBILITY 97, 98 (Tom Baker & Jonathan Simon eds., 2002).
175. Carol Weisbrod, Insurance and the Utopian Idea, 6 CONN. INS. L.J. 381, 390, 409-10 (2000).
176. Tom Baker, Containing the Promise of Insurance: Adverse Selection and Risk Classification, 9 CONN. INS. L.J. 371, 377 (2003);
177. Struggle, supra note 43, at 290-92.
178. Geoffrey Clark, Embracing Fatality through Life Insurance in Eighteenth-Century England, in EMBRACING RISK: THE CHANGING CULTURE OF INSURANCE AND RESPONSIBILITY 80,90 (Tom Baker & Jonathan Simon eds., 2002).
179. GEOFFREY CLARK, BETTING ON LIVES: THE CULTURE OF LIFE INSURANCE IN ENGLAND, 1695-1775 34, 40-53 (1999);
180. VIVIANA A. ROTMAN ZELIZER, MORALS AND MARKETS: THE DEVELOPMENT OF LIFE INSURANCE IN THE UNITED STATES 67-72, 79-81, 86-89 (1979).
181. See generally Timothy Alborn, A License to Bet: Life Insurance and the Gambling Act in the British Courts, 14 CONN. INS. L.J. 1 (2008);
182. R. Merkin, Gambling by Insurance-A Study of the Life Assurance Act 1774, 9 ANGLO-AM. L. REV. 331 (1980).
183. Brian J. Glenn, God and the Red Umbrella: The Place of Values in the Creation of Institutions of Mutual Assistance, 10 CONN. INS. L.J. 277, 292 (2004).
184. See JOSÉ HARRIS, WILLIAM BEVERIDGE: A BIOGRAPHY (1977).
185. WILLIAM BEVERIDGE, SOCIAL INSURANCE AND ALLIED SERVICES 8 (The MacMillan Company, 1942);
186. Imagining Insurance, supra note 84, at 105-06.
187. HARRIS, supra note 90, at 172, 392, 396-99.
188. Deborah A. Stone, Beyond Moral Hazard: Insurance as Moral Opportunity, 6 CONN. INS. L.J. 11, 14-16, 18 (1999).
189. See generally THE EVOLUTION OF SOCIAL INSURANCE 1881-1981 (Peter A. Kohler & Hans F. Zacher eds., 1982) (detailing how social insurance developed in Germany, France, Great Britain, Austria and Switzerland).
190. See RICHARD A. KNOX, GERMANY: ONE NATION WITH HEALTH CARE FOR ALL 54-56 (1993);
191. TIMOTHY B. SMITH, CREATING THE WELFARE STATE IN FRANCE, 1880-1940 130-38 (2003).
192. See also DEBORAH STONE, THE SAMARITAN'S DILEMMA: SHOULD GOVERNMENT HELP YOUR NEIGHBOR? 274-79 (2008).
193. See generally ROWENA JACOBS & MARIA GODDARD, UNIV. OF YORK CENTRE FOR HEALTH ECONOMICS, SOCIAL HEALTH INSURANCE SYSTEMS IN EUROPEAN COUNTRIES: THE ROLE OF THE INSURER IN THE HEALTH CARE SYSTEM: A COMPARATIVE STUDY OF FOUR EUROPEAN COUNTRIES (2000), available at www.york.ac.uk/inst/che/pdf/op39.pdf (describing the health insurance programs in Germany, Switzerland, France and the Netherlands, including the history of these programs, how they are financed, and the health status of the populations in these nations).
194. For a succinct comparison of systems, see THOMAS S. BODENHEIMER & KEVIN GRUMBACH, UNDERSTANDING HEALTH POLICY: A CLINICAL APPROACH 163-79 (5th ed. 2009).
195. This does not insulate such systems from cost pressures. See, e.g., Paul Clay Sorum, France Tries to Save Its Ailing National Health System, 26 J. PUB. HEALTH POL'Y 231, 239 (2005);
196. Jere A. Wysong & Thomas Abel, Universal Health Insurance and High-Risk Groups in West Germany: Implications for U.S. Health Policy, 68 MILBANK Q. 527, 530-31 (1990);
197. Laurence J. Kotlikoff & Christian Hagist, Who's Going Broke? Comparing Growth in Health Care Costs in Ten OECD Countries, (Nat'l Bureau of Econ. Research.Working Paper No. 11833, 2005) at 8-11, 17.
198. RICHMOND & FEIN, supra note 13, at 30-42.
199. ROBERT CUNNINGHAM III & ROBERT M. CUNNINGHAM JR., THE BLUES: A HISTORY OF THE BLUE CROSS AND BLUE SHIELD SYSTEM 93-97 (1997).
200. RICKEY HENDRICKS, A MODEL FOR NATIONAL HEALTH CARE: THE HISTORY OF KAISER PERMANENTE 1-3, 28 (1993).
201. See Part IV supra.
202. See generally Henry J. Aaron & Paul B. Ginsburg, Is Health Spending Excessive? If So, What Can We Do About It?, 28 HEALTH AFF. 1260 (Sept./Oct. 2009) (analyzing the causes of high health care spending in the U.S., including consumer demand for health care and health insurance coverage, and economic incentives for overtreatment).
203. Consolidated Omnibus Budget Reconciliation Act of 1985, Pub. L. 99-272;
204. Health Insurance Portability and Accountability Act, 42 U.S.C. §300gg-41 (2010).
205. U.S. GEN. ACCOUNTING OFFICE, HEALTH INSURANCE STANDARDS: NEW FEDERAL LAW CREATES CHALLENGES FOR CONSUMERS, INSURERS, REGULATORS 2 (1998).
206. PAUL FRONSTIN ET AL., EMPLOYEE BENEFIT RESEARCH INST., THE 2009 HEALTH CONFIDENCE SURVEY: PUBLIC OPINION ON HEALTH REFORM VARIES; STRONG SUPPORT FOR INSURANCE MARKET REFORM AND PUBLIC PLAN OPTION, MIXED RESPONSE TO TAX CAP 6 (2009), http://www.ebri.org/pdf/briefspdf/EBRI-IB-7-2009-HCS-091.pdf.
207. For perspectives on issues that will require fresh thinking, see Mark L. Movsesian, Are Statutes Really "Legislative Bargains"? The Failure of the Contract Analogy in Statutory Interpretation, 76 N.C. L. REV. 1145 (1998);
208. Susan Randall, Freedom of Contract in Insurance, 14 CONN. INS. L.J. 107, 108 (2008);
209. Peter Nash Swisher, A Realistic Consensus Approach to the Insurance Law Doctrine of Reasonable Expectations, 35 TORT & INS. L.J. 729 (2000).