Three models of health insurance: The conceptual pluralism of the patient protection and affordable care act

University of Pennsylvania Law Review

Volumn 159, Issue 6, 2011, Pages 1873-1954

  Hoffman, Allison K ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

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EID: 79960162051     PISSN: 00419907     EISSN: 19428537     Source Type: Journal    
DOI: None     Document Type: Article

References (178)

1. Allison K. Hoffman, Oil and Water: Mixing Individual Mandates, Fragmented Markets, and Health Reform, 36 AM. J.L. & MED. 7, 11 (2010). This article contends that an individual mandate in conjunction with insurance-market reforms that require greater risk pooling can promote greater solidarity through "health redistribution," or a pooling of risks among healthy and sick. Id.
2. For a discussion of solidarity and PPACA, see Tom Baker, Health Insurance, Risk, and Responsibility After the Patient Protection and Affordable Care Act, 159 U. PA. L. REV. 1577 (2011). "The Affordable Care Act embodies a social contract of health care solidarity through private ownership, markets, choice, and individual responsibility." Id. at 1579.
3. This idea has been advanced and described by scholars in several ways. First, some advocate the importance of medical care and the role of insurance in ensuring access to care. See, e.g., 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, 9-10 (1994) (arguing that "promotion of the health of the population is the most important objective of health care reform" and that access to medical care is a critical - though not the sole - component of promoting health);
4. Ronald R. Loeppke, Making the Case for Population Health Management: The Business Value of Better Health ("Health plans' specific responsibilities include improving the health of the members ⋯"), in POPULATION HEALTH 121, 130 (David B. Nash et al. eds., 2011);
5. Wendy K. Mariner, Health Reform: What's Insurance Got to Do with It? Recognizing Health Insurance as a Separate Species of Insurance, 36 AM. J.L. & MED. 436, 450 (2010) ("A more transparent approach to reform would make explicit that health plans constitute a valuable, separate species of insurance designed primarily to finance socially beneficial health services by spreading the cost of care.");
6. John A. Nyman, The Value of Health Insurance: The Access Motive, 18 J. HEALTH ECON. 141, 142 (1999) ("Additional benefits are derived from insurance's ability to make available medical care that would not otherwise be affordable.").
7. Many make a related argument that the lack of insurance or insufficient insurance leads to poorer health. See, e.g., COMM. ON THE CONSEQUENCES OF UNINSURANCE, INST. OF MED. OF THE NAT'L ACADS., HIDDEN COSTS, VALUE LOST: UNINSURANCE IN AMERICA 4 (2003) (estimating that "the aggregate, annualized cost of the diminished health and shorter life spans of Americans who lack health insurance is between dollar;65 and dollar;130 billion annually for each year of health insurance foregone" (emphasis omitted));
8. Jonathan Gruber, Covering the Uninsured in the United States, J. ECON. LITERATURE 571, 582-83 (2008) (citing studies demonstrating the adverse impact of the lack of insurance on health);
9. Jack Hadley, Sicker and Poorer: The Consequences of Being Uninsured, MED. CARE RES. & REV., 3S, 60S (2003) ("[T]here is a substantial body of research supporting the hypothes[i]s that having health insurance improves health ⋯");
10. Shana Alex Lavarreda et al., Underinsurance in the United States: An Interaction of Costs to Consumers, Benefit Design, and Access to Care, 32 ANN. REV. PUB. HEALTH 471, 480 (2011) (arguing that "along with the accepted frameworks for defining underinsurance in economic terms or as a function of lacking needed benefits, the effect of underinsurance on access to care should be considered as well");
11. Diane Rowland & Adele Shartzer, America's Uninsured: The Statistics and Back Story, 36 J.L. MED. & ETHICS 618, 618 (2008) ("The large and growing number of uninsured people is of concern because health coverage makes a difference in whether and when people get necessary medical care, where they get their care, and ultimately how healthy people are.").
12. Finally, the idea that health insurance should be designed with health promotion as the primary goal is often implied by arguments for value-oriented health care design. See, e.g., MICHAEL E. PORTER & ELIZABETH OLMSTED TEISBERG, REDEFINING HEALTH CARE 229 (2006) ("Health plans must become health organizations, not just insurance organizations.");
13. Donald M. Berwick et al., The Triple Aim: Care, Health, and Cost, 27 HEALTH AFF. 759, 760 (2008) (arguing that "the United States will not achieve high-value health care unless improvement initiatives pursue a broader system of linked goals," including "improving the health of populations");
14. Michael E. Chernew et al., Value-Based Insurance Design, HEALTH AFF., Jan. 30, 2007, at W195, W202, http://content.healthaffairs.org/content/26/2/ w195.full.pdf (arguing that value-based insurance design could "align[] ... incentives based on overall value of clinical services, not just cost" and could therefore help "move toward a high-value health care system for all").
15. See e.g., Robert H. Blank, Regulatory Rationing: A Solution to Health Care Resource Allocation, 140 U. PA. L. REV. 1573, 1579 (1992) ("We have developed an unrealistic dependence on technology to fix our health problems at the expense of preventive health care approaches.");
16. Katherine Swartz, Uninsured in America: New Realities, New Risks ("Slowing growth in health care spending ultimately will not be possible unless the basic benefits package excludes treatments that are enormously expensive and not cost-effective."), in HEALTH AT RISK: AMERICA'S AILING HEALTH SYSTEM - AND HOW TO HEAL IT 32, 56 (Jacob S. Hacker ed., 2008).
17. See MICHAEL J. GRAETZ & JERRY L. MASHAW, TRUE SECURITY 146 (1999) ("[I]t is the job of social insurance to protect family income streams ⋯").
18. See JACOB S. HACKER, THE GREAT RISK SHIFT 138 (2006) ("Every thirty seconds, someone files a bankruptcy claim that's due in part to medical costs ⋯");
19. Jacob S. Hacker, Privatizing Risk Without Privatizing the Welfare State: The Hidden Politics of Social Policy Retrenchment in the United States, 98 AM. POL. SCI. REV. 243 (2004)
20. U. Himmelstein et al., Illness and Injury as Contributors to Bankruptcy, HEALTH AFF., Feb. 2, 2005, at W5-63, W5-72, http://content.healthaffairs.org/ content/early/2005/02/02/hlthaff.w5.63.full.pdf+html [hereinafter Himmelstein et al., Illness and Injury] (noting that "middle-class Americans ... face impoverishment following a serious illness");
21. David U. Himmelstein et al., Medical Bankruptcy in the United States, 2007: Results of a National Study, 122 AM. J. MED. 741, 743 (2009) [hereinafter Himmelstein et al., Medical Bankruptcy] (finding that medical bills contribute to many bankruptcies);
22. Melissa B. Jacoby & Mirya Holman, Managing Medical Bills on the Brink of Bankruptcy, 10 YALE J. HEALTH POL'Y L. & ETHICS 239, 240, 286 (2010) (claiming that the court-record method, which involves looking at the court documents submitted by bankruptcy filers, "is an unreliable measure of the financial burden of illness or injury faced by bankruptcy filers" and underrepresents the actual hardship).
23. See, e.g., KENNETH ABRAHAM, DISTRIBUTING RISK 35-36 (1986) (discussing how moral hazard concerns have influenced insurance policy and pricing practices over time);
24. Mark V. Pauly, The Economics of Moral Hazard: Comment, 58 AM. ECON. REV. 531, 537 (1968) ("[E]ven if all individuals are risk-averters, some uncertain medical care expenses will not and should not be insured in an optimal situation.").
25. But cf. TIMOTHY STOLTZFUS JOST, HEALTH CARE AT RISK 128 (2007) (discussing an experiment that "found absolutely no evidence of ex ante moral hazard - that people engaged in more risky behaviors because they faced lower cost sharing"
26. (citing JOSEPH P. NEWHOUSE & THE INSURANCE EXPERIMENT GROUP, FREE FOR ALL? LESSONS FROM THE RAND HEALTH INSURANCE EXPERIMENT 200-01, 208 (1993))). Second, some advance a luck-egalitarian argument for a theory of distributive justice that requires neutralizing unavoidable harms. See infra notes 228-32.
27. Philosophers and scholars have long debated the best way to allocate and fund medical care, a question that is complex, heated, and impossible to resolve in the bounds of this Article. For a summary review of these debates, see NORMAN DANIELS, JUST HEALTH: MEETING HEALTH NEEDS FAIRLY 11-28 (2008).
28. See also Einer Elhauge, Allocating Health Care Morally, 82 CALIF. L. REV. 1449, 1496 (1994) ("Once we abandon a commitment to fund every health benefit possibly achievable, we face difficult choices about which health improvements to fund out of a limited set of resources.");
29. Govind Persad et al., Principles for Allocation of Scarce Medical Interventions, 373 LANCET 423, 424 tbl.1 (2009) (listing eight principles of allocating health care and the advantages and disadvantages associated with each).
30. See LAWRENCE R. JACOBS & THEDA SKOCPOL, HEALTH CARE REFORM AND AMERICAN POLITICS 11-16 (2010) (providing a timeline of the major events from March 2007 to March 2010 resulting in the passage of the health care reform bill);
31. see also THEODORE R. MARMOR, THE POLITICS OF MEDICARE 43-61 (2d ed. 2000) (describing the machinations and compromises leading to the passage of the Medicare bill);
32. Rudolf Klein & Theodore R. Marmor, Reflections on Policy Analysis: Putting It Together Again (describing public policy as an elusive creature, "resolving (or at least attenuating) conflicts about resources, rights, and morals"), in THE OXFORD HANDBOOK OF PUBLIC POLICY 892, 892 (Michael Moran et al. eds., 2006).
33. See Eric Lichtblau & Robert Pear, Rule Makers Emerge from the Shadows, N.Y. TIMES, Dec. 9, 2010, at A28 (describing the rulemaking challenges that recent "megabills" like PPACA pose).
34. CARMEN DENAVAS-WALT ET AL., U.S. DEP'T OF COMMERCE, CURRENT POPULATION REPORTS, INCOME, POVERTY, AND HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2009, at 71 tbl.C-1 (2010). In addition, in 2009, just over ninety-three million Americans had public health insurance, in the form of Medicare, Medicaid, or military health care. Id. For a critical description of this federal "patchwork of health-care programs,"
35. see TOM DASCHLE WITH SCOTT S. GREENBERGER & JEANNE M. LAMBREW, CRITICAL: WHAT WE CAN DO ABOUT THE HEALTH CARE CRISIS 29-31 (2008).
36. See Letter from Douglas W. Elmendorf, Dir., Cong. Budget Office, to Nancy Pelosi, Speaker, U.S. House of Representatives 9-10 (Mar. 20, 2010), available at http://www.cbo.gov/ftpdocs/113xx/doc11379/AmendReconProp.pdf (projecting the extent to which PPACA and HCERA together would increase private health insurance coverage).
37. See Mark A. Hall, The Geography of Health Insurance Regulation: A Guide to Identifying, Exploiting, and Policing Market Boundaries, HEALTH AFF., Mar.-Apr. 2000, at 173, 173-75 (illustrating how the lines between these markets are fluid due to "'border-crossing' structures and techniques").
38. For a description of risk rating, see generally Donald W. Light, The Practice and Ethics of Risk-Rated Health Insurance, 267 JAMA 2503 (1992). Some states limit experience rating.
39. Both actuarial and regulatory limitations prevent perfect precision. See ABRAHAM, supra note 19, at 77 ("Insureds are unlikely to suffer the exact amount of their expected losses over the course of their insuring lives."). Insurers do not define risk classes as narrowly as actuarily possible. At some point the administrative costs of defining classes narrowly enough to cabin redistribution and attract low-risk enrollees exceeds the benefit from enrolling additional subscribers. Furthermore, even if profitable, it is presently impossible to gauge individual risk perfectly. Expected risk is only really defined once people are grouped with others so that group probabilities can be calculated, which by definition means the costs of losses will be spread among the risk group, however defined. Id. at 79. Finally, both federal and state regulations have limited insurers' freedom to decline applicants or charge them differentially on the basis of health or other characteristics. For example, according to Kaiser Family Foundation research, about a third of the states have community rating or rate bands that limit the variance in rates that insurers can charge. The Henry J. Kaiser Family Found., Individual Market Rate Restrictions (Not Applicable to HIPAA Eligible Individuals), 2010, STATEHEALTHFACTS.ORG (data as of Jan. 2010), http://www.statehealthfacts.org/ comparetable.jsp?ind=354&cat=7;
40. See SARA R. COLLINS ET AL., THE COMMONWEALTH FUND, PUB. NO. 953, SQUEEZED: WHY RISING EXPOSURE TO HEALTH CARE COSTS THREATENS THE HEALTH AND FINANCIAL WELL-BEING OF AMERICAN FAMILIES 4 (2006), available at http://www.commonwealthfund.org/Content/Publications/Fund-Reports/2006/Sep/ Squeezed-Why-Rising-Exposure-to-Health-Care-Costs-Threatens-the-Health-and- Financial-Well-Being-of.aspx.
41. see also Kevin Sack, A Third Judge Validates Health Care Overhaul Law, N.Y. TIMES, Feb. 23, 2011, at A14, available at 2011 WLNR 3539819 (discussing the litigation). Two district courts have held PPACA unconstitutional.
42. Senator Tom Coburn, Remarks at the White House Health Care Summit (Feb. 25, 2010), transcript available at http://www.washingtonpost.com/wp-dyn/content/ article/2010/02/25/AR2010022502664-pf.html.
43. See, e.g., Jane Sidorov & Martha Romney, The Spectrum of Care (arguing that prevention is a key component of the concept of "population health," or general well-being), in POPULATION HEALTH, supra note 7, at 3, 7;
44. Health care costs in 2010 are estimated to be just over dollar;2.5 trillion for just over 250 million insured. CTRS. FOR MEDICARE & MEDICAID SERVS., UPDATED NATIONAL HEALTH EXPENDITURE PROJECTIONS 2009-2019 tbl.1 (2010), available at https://www.cms.gov/NationalHealthExpendData/downloads/ NHEProjections2009to2019.pdf;
45. Press Release, United States Census, U.S. Census Bureau Announces 2010 Census Population Counts - Apportionment Count Delivered to President (Dec. 21, 2010), available at http://2010.census.gov/news/releases/operations/cb10-cn93. html (reporting that the U.S. population on April 1, 2010, was just over 300 million).
46. For an interesting perspective on moral hazard, see generally Deborah Stone, Beyond Moral Hazard: Insurance as Moral Opportunity, in EMBRACING RISK: THE CHANGING CULTURE OF INSURANCE AND RESPONSIBILITY 52 (Tom Baker & Jonathan Simon eds., 2002).
47. Steven Shavell, On Moral Hazard and Insurance, 93 Q.J. ECON. 541, 541 (1979) ("Moral hazard refers here to the tendency of insurance protection to alter an individual's motive to prevent loss.").
48. See LOUISE B. RUSSELL, NAT'L COAL. ON HEALTH CARE, PREVENTION'S POTENTIAL FOR SLOWING THE GROWTH OF MEDICAL SPENDING 8 (2007) [hereinafter RUSSELL, PREVENTION'S POTENTIAL], available at http://www.ihhcpar.rutgers.edu/downloads/ nchc-report.pdf ("[T]he evidence does not support the commonly accepted idea that prevention always, or even usually, reduces medical costs ⋯");
49. see also LOUISE B. RUSSELL, IS PREVENTION BETTER THAN CURE? 3 (1986) ("[E]ven when the financial cost of the pre-ventative measure looks small, careful evaluation often shows that the full costs are rather large ⋯ In fact, prevention usually adds to medical expenditures.").
50. But see Michael V. Maciosek et al., Greater Use of Preventive Services in U.S. Health Care Could Save Lives at Little or No Cost, 29 HEALTH AFF. 1656, 1656, 1658 (2010) (noting that others, including Russell, have challenged the idea that preventive care saves money, but finding that certain preventive services may be increased "without an increase in net cost").
51. See, e.g., James F. Fries, Aging, Natural Death, and the Compression of Morbidity, 303 NEW ENG. J. MED. 130, 132-34 (1980) (showing that as chronic diseases, rather than acute illness, become an increased cause of death, delaying the onset of the disease can reduce the amount of time spent sick with the disease). Chronic diseases are also considered one of the major drivers of health care costs in the United States, account- ing for as much as seventy-five percent of health care expenditures in 2008.
52. Steven H. Woolf, The Power of Prevention and What It Requires, 299 JAMA 2437, 2437 (2008).
53. See, e.g., James J. Mongan et al., Options for Slowing the Growth of Health Care Costs, 358 NEW ENG. J. MED. 1509, 1512 (2008).
54. See Marc L. Berk & Alan C. Monheit, The Concentration of Health Care Expenditures, Revisited, HEALTH AFF., Mar.-Apr. 2001, at 9, 12 (noting that in 1996, "the top 1 percent of the [U.S.] population accounted for 27 percent of aggregate expenditures");
55. see also THE HENRY J. KAISER FAMILY FOUND., HEALTH CARE COSTS: A PRIMER 5 (2009), available at http://www.kff.org/insurance/upload/7670-02.pdf ("A small share of people accounts for a significant share of expenses in any year.").
56. But see Katherine Baicker et al., Workplace Wellness Programs Can Generate Savings, 29 HEALTH AFF. 304, 308 (2010) (finding through a literature survey that workplace wellness programs saved dollar;3.27 per dollar spent and that absenteeism costs fell by dollar;2.73 for every dollar spent).
57. Woolf, supra note 81, at 2437 (referring to a study by Fortune 500 companies showing lost productivity due to smoking (citing 1 CTR. FOR PREVENTION & HEALTH SERVS. & NAT'L BUS. GROUP ON HEALTH, ISSUE BRIEF NO. 5, REDUCING THE BURDEN OF SMOKING ON EMPLOYEE HEALTH AND PRODUCTIVITY (2003), available at http://www.businessgrouphealth.org/pdfs/issuebrief-cphssmoking.pdf) ).
58. See, e.g., Interim Final Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of Preventive Services Under the Patient Protection and Affordable Care Act, 75 Fed. Reg. 41,726, 41,734 (July 19, 2010) [hereinafter Interim Final Rules for Group Health Plans and Health Insurance Issuers] (discussing a study which "found that 69 million workers reported missing days due to illness and 55 million workers reported a time when they were unable to concentrate at work because of their own illness or a family member's illness" (citing KAREN DAVIS ET AL., THE COMMONWEALTH FUND, ISSUE BRIEF, PUB. NO. 856, HEALTH AND PRODUCTIVITY AMONG U.S. WORKERS 1, 2-3 (2005), available at http://www.commonwealthfund.org/usr-doc/856-Davis-hlt-productivity- USworkers.pdf)).
59. See Amy B. Monahan, Value-Based Mandated Health Benefits, 80 U. COLO. L. REV. 127, 136-37 (2009) (noting that a mandated health benefit "would be justified where there is evidence of suboptimal utilization" and where "the treatment is sufficiently price-elastic").
60. States might, of course, also mandate vaccination against certain diseases. For a discussion of modern vaccinations and public health goals, see generally Kevin M. Malone & Alan R. Hinman, Vaccination Mandates: The Public Health Imperative and Individual Rights, in LAW IN PUBLIC HEALTH PRACTICE 338 (Richard A. Goodman et al. eds., 2d ed. 2007).
61. See, e.g., 1 PRESIDENT'S COMM'N FOR THE STUDY OF ETHICAL PROBLEMS IN MED. & BIOMEDICAL & BEHAVIORAL RESEARCH, SECURING ACCESS TO HEALTH CARE: THE ETHICAL IMPLICATIONS OF DIFFERENCES IN THE AVAILABILITY OF HEALTH SERVICES 14 (1983) [hereinafter SECURING ACCESS TO HEALTH CARE] (noting that "[i]n the lst half of the nineteenth century," health services were driven by the goal of "achiev[ing] a more productive labor force and a healthier general populace for purposes of national defense");
62. Alan Lyles, The Political Landscape in Relation to the Health and Wealth of Nations (describing a finding that a significant percentage of World War I military recruits were unhealthy (citing Stanley Joel Reiser, The Emergence of the Concept of Screening for Disease, 56 MILBANK MEMORIAL FUND Q. HEALTH & SOC. 403 (1978))), in POPULATION HEALTH, supra note 7, at 295, 297.
63. See Tom Baker & Peter Siegelman, Tontines for the Invincibles: Enticing Low Risks into the Health-Insurance Pool with an Idea from Insurance History and Behavioral Economics, 2010 WIS. L. REV. 79, 95 (discussing how optimism bias - and the "unfounded belief that bad things will not happen" - leads to underinsurance);
64. Ronald J. Ozminkowski et al., Predictors of Preventive Service Use Among Medicare Beneficiaries, HEALTH CARE FINANCING REV., Spring 2006, at 5, 18 (finding that people with better health underuse preventive care).
65. See generally Neil D. Weinstein & William M. Klein, Resistance of Personal Risk Perceptions to Debiasing Interventions (describing the persistence of optimism bias in patients' judgments of their own health risks), in HEURISTICS AND BIASES 313 (Thomas Gilovich et al. eds., 2002).
66. For an extensive discussion of social-utility and distributive-justice- based arguments for health care, see William W. Fisher & Talha Syed, Global Justice in Healthcare: Developing Drugs for the Developing World, 40 U.C. DAVIS L. REV. 581, 602-47 (2007).
67. See also SECURING ACCESS TO HEALTH CARE, supra note 93, at 16-20 ("Ethical concern about the distribution of health care derives from the special importance of health care in promoting personal well-being by preventing or relieving pain, suffering, and disability and by avoiding loss of life.").
68. See, e.g., Anja Rudiger, From Market Competition to Solidarity? Assessing the Prospects of U.S. Health Care Reform Plans from a Human Rights Perspective, HEALTH & HUM. RTS., no. 1, 2008, at 123, 125-27 (recognizing that the U.S. health reform debate increasingly viewed health care as a "shared responsibility" as opposed to a personal one);
69. Amartya Sen, Comment, Why and How Is Health a Human Right?, 372 LANCET 2010, 2010 (2008) (arguing that legislation should be guided by a view of health as a human right);
70. Alicia Ely Yamin, The Right to Health Under International Law and Its Relevance to the United States, 95 AM. J. PUB. HEALTH 1156, 1156 (2005) ("Under international law, there is a right not merely to health care but to the much broader concept of health.").
71. Martha C. Nussbaum, Capabilities as Fundamental Entitlements: Sen and Social Justice, FEMINIST ECON., nos. 2-3, 2003, at 33, 41. Daniels contends that, in application, capabilities and opportunity largely converge when the goal is to preserve normal functioning. DANIELS, supra note 25, at 69-70.
72. See, e.g., BARACK OBAMA, THE AUDACITY OF HOPE 247 (2006) ("[A] plan for universal health-care coverage would do more to eliminate health disparities between whites and minorities than any race-specific programs we might design.");
73. Amartya Sen, Why Health Equity? (arguing equal access to health care is a part, albeit a small one, of health equity), in PUBLIC HEALTH, ETHICS AND EQUITY 21, 22-26 (Sudhir Anand et al. eds., 2004).
74. RICHARD WILKINSON & KATE PICKETT, THE SPIRIT LEVEL (2009) (showing the effect of income inequality on health);
75. Michael G. Marmot, Social Differentials in Health Within and Between Populations, DAEDALUS, Fall 1994, at 197 (noting that while mortality rates declined from 1965 to 1990, the disparity in rates between socioeconomic groups grew, suggesting that socioeconomic status could be an important determinant of health);
76. Neil Pearce & George Davey Smith, Is Social Capital the Key to Inequalities in Health?, 93 AM. J. PUB. HEALTH 122, 122 (2003) ("It has long been established that socioeconomic factors are major determinants of health and mortality.");
77. Geoffrey Rose, Sick Individuals and Sick Populations, 14 INT'L J. EPIDEMIOLOGY 32, 38 (1985) (arguing that it is critical to examine both determinants of individual cases of disease as well as incidence rate among a population and concluding that "[c]ase-centered epidemiology identifies individual susceptibiity, but it may fail to identify the underlying causes of incidence");
78. Jennifer Prah Ruger, Ethics of the Social Determinants of Health, 364 LANCET 1092, 1092-96 (2004) (providing an overview of social-determinants literature and different theories on how to address the problems of health that might be a result of low socioeconomic status);
79. Paul Starr, The Politics of Therapeutic Nihilism, HASTINGS CTR. REP., Oct. 1976, at 24, 28 (1976) ("In all age groups, people in lower-income families are reported to be less healthy, sometimes dramatically so.");
80. Peter Townsend & Nick Davidson, Introduction to INEQUALITIES IN HEALTH: THE BLACK REPORT? 13, 20-23 (Douglas Black et al. eds., 1982) (discussing "recent studies ... filling in our knowledge of the long-term, pervasive effects of class membership on health and development throughout life");
81. Daniel Wikler, Personal and Social Responsibility for Health, 16 ETHICS & INT'L AFF. 47, 47 (2002) (cautioning against overemphasizing personal responsibility for health in crafting health policy).
82. For an examination of the culture of social welfare programs, including health care, in fraternal societies, see generally David T. Beito, Mutual Aid, State Welfare, and Organized Charity: Fraternal Societies and the "Deserving" and "Undeserving" Poor, 1900-1930, 5 J. POL'Y HIST. 419 (1993).
83. See, e.g., Jim Rutenberg & Jackie Calmes, Getting to the Source of the "Death Panel" Rumor, N.Y. TIMES, Aug. 14, 2009, at A1.
84. Studies show that expanded coverage leads to more utilization overall, but it is difficult to know exactly how elastic the demand is for particular services. See, e.g., JONATHAN GRUBER, THE ROLE OF CONSUMER COPAYMENTS FOR HEALTH CARE: LESSONS FROM THE RAND HEALTH INSURANCE EXPERIMENT AND BEYOND 9 (2006), available at http://www.kff.org/insurance/upload/7566.pdf (discussing various studies revealing information about elasticity of demand for various medical treatments);
85. See generally Joan M. Kapowich, Oregon's Test of Value-Based Insurance Design in Coverage for State Workers, 29 HEALTH AFF. 2028 (2010) (describing Oregon's approach to value-based insurance design);
86. OR. DEP'T OF HUMAN SERVS., OREGON HEALTH PLAN: AN HISTORICAL OVERVIEW (2006), available at http://www.oregon.gov/DHS/healthplan/data-pubs/ ohpoverview0706.pdf (providing a history of the Oregon plan);
87. see also Somnath Saha et al., Giving Teeth to Comparative-Effectiveness Research - The Oregon Experience, 362 NEW ENG. J. MED. e18, e18(2) (2010), http://www.nejm.org/doi/pdf/10.1056/NEJMp0912938 (explaining that the Oregon Health Service Commission "was charged with setting coverage priorities"). The Oregon Plan's roots reach back to a 1987 legislative decision to discontinue Medicaid funding of soft-tissue transplants.
88. See Kevin Sack, Arizona's Medicaid Cuts Are Seen as a Sign of the Financial Times, N.Y. TIMES, Dec. 5, 2010, at A22 (detailing criticisms of Arizona's Medicaid spending cuts).
89. See OR. HEALTH SERVS. COMM'N, PRIORITIZED LIST OF HEALTH SERVICES (Oct. 1, 2010), available at http://www.oregon.gov/OHPPR/HSC/docs/Oct10List.pdf.
90. In its initial implementation efforts, Oregon announced prioritization decisions that were publicly criticized and altered after being exposed and deemed illogical. For example, the Oregon Health Plan initially prioritized certain treatments simply because they were so inexpensive that they could be administered widely with little cost. The public objected to the placement of such treatments higher on the list than critically important but more expensive treatments. See David C. Hadorn, Setting Health Care Priorities in Oregon: Cost-Effectiveness Meets the Rule of Rescue, 265 JAMA 2218, 2218-19 (1991) (documenting the criticism of Oregon's list, which prioritized headache treatment over some lifesaving measures
91. (citing Timothy Egan, Problems Could Delay Proposal by Oregon to Ration Health Care, N.Y. TIMES, July 30, 1990, at A8));
92. Louis W. Sullivan, Op-Ed, Oregon Health Plan Is Unfair to the Disabled, N.Y. TIMES, Sept. 1, 1992, at A16 (criticizing the proposed plan for discriminating against disabled people).
93. See Brendan Nyhan, Why the "Death Panel" Myth Wouldn't Die: Misinformation in the Health Care Reform Debate, 8 THE FORUM, Issue 1, art. 5, 2001, at 1, 6-11, http://www.bepress.com/forum/vol8/iss1/art5/(explaining how Betsy McCaughey created the prominent "death panel" myth and depicting, in table form, its spread among prominent conservatives throughout the health reform debate);
94. Press Release, Statement by House GOP Leaders Boehner and McCotter on End-of-Life Treatment Counseling in Democrats' Health Care Legislation (July 23, 2009), available at https://speaker.house.gov/News/DocumentSingle.aspx? DocumentID=139131 (expressing concern about end-of-life counseling).
95. See, e.g., JOHN C. GOODMAN & GERALD L. MUSGRAVE, PATIENT POWER: THE FREE-ENTERPRISE ALTERNATIVE TO CLINTON'S HEALTH PLAN 24 (1994) (arguing that because there "need not be any risky event to trigger insurance payments," because the payment is determined by "consumption decisions," and because the payment is made "not to the insured but to the medical providers," "health insurance is not insurance at all");
96. Martin S. Feldstein, The Welfare Loss of Excess Health Insurance, 81 J. POL. ECON. 251, 276-77 (1973) (advocating the restructuring of health insurance to "reduc[e] its role as a method of prepaying small ... bills" and to increase its use as a protection against large risks);
97. For a description of Pareto optimality, see THE MIT DICTIONARY OF MODERN ECONOMICS 324 (David W. Pearce ed., 4th ed. 1992). "When the economy's resources and output are allocated in such a way that no reallocation can make anyone better off without making at least one other worse off, then a Pareto optimum is said to exist." Id.
98. Stone, supra note 74, at 53 (highlighting the social and public benefits derived from collectively provided insurance). See generally GRAETZ & MASHAW, supra note 13 (discussing the role of social insurance in promoting family economic security).
99. See, e.g., Timothy Jost, Implementing Health Reform: Preventive Services, HEALTH AFF. BLOG (July 15, 2010, 11:29 AM), http://healthaffairs.org/blog/2010/ 07/15/implementing-health-reform-preventive-services/print (noting the emphasis on preventive care and improving health in PPACA).
100. For a clear and concise summary of grandfathering, see Timothy Jost, Implementing Health Reform: Grandfathered Plans, HEALTH AFF. BLOG (June 15, 2010), http://healthaffairs.org/blog/2010/06/15/implementing-health-reform- grandfathered-plans.
101. See Howard K. Koh & Kathleen G. Sebelius, Promoting Prevention Through the Affordable Care Act, 363 NEW ENG. J. MED. 1296, 1296 (2010) ("[T]he Act provides individuals with improved access to clinical preventive services. A major strategy is to remove cost as a barrier to these services, potentially opening new avenues toward health.");
102. Robert Pear, Health Plans Must Provide Some Tests at No Cost, N.Y. TIMES, July 15, 2010, at A16 (noting "significant benefits for consumers - if they take advantage of the services that should now be more readily available and affordable").
103. See CONG. BUDGET OFFICE, RESEARCH ON THE COMPARATIVE EFFECTIVENESS OF MEDICAL TREATMENTS: ISSUES AND OPTIONS FOR AN EXPANDED FEDERAL ROLE 3-7 (2007), available at http://www.cbo.gov/ftpdocs/88xx/doc8891/12-18- ComparativeEffectiveness.pdf (providing examples of comparative effectiveness studies).
104. See generally Lynn M. Etheredge, Creating a High-Performance System for Comparative Effectiveness Research, 29 HEALTH AFF. 1761 (2010) (recommending ways to improve comparative effectiveness research (CER));
105. John K. Iglehart, Prioritizing Comparative-Effectiveness Research - IOM Recommendations, 361 NEW ENG. J. MED. 325 (2009) (discussing the Institute of Medicine's release of a "report recommending a portfolio of 100 study topics" for CER).
106. PPACA sec. 6301, § 1182, 42 U.S.C.A. § 1320e-1. For a discussion on implementing the results of CER, see, for example, Aanand D. Naik & Laura A. Petersen, The Neglected Purpose of Comparative-Effectiveness Research, 360 NEW ENG. J. MED. 1929 (2009),
107. and James C. Robinson, Comparative Effectiveness Research: From Clinical Information to Economic Incentives, 29 HEALTH AFF. 1788, 1792-93 (2010). PPACA also raised concerns that developing generalized rules might undermine both consideration of variable patient responses and physician autonomy.
108. See John K. Iglehart, The Political Fight over Comparative Effectiveness Research, 29 HEALTH AFF. 1757, 1757-59 (2010) (explaining how CER sent "conservative pundits ... into rhetorical overdrive").
109. See Kevin Sack, Health Care Wastefulness Is Detailed in Studies, N.Y. TIMES, Sept. 7, 2010, at A15.
110. Michelle Miller, 25 Million Have Health Insurance But Not Enough, CBSNEWS.COM (July 26, 2009), http://www.cbsnews.com/stories/2009/07/26/ eveningnews/main5189708.shtml.
111. See, e.g., Kenneth J. Arrow, Uncertainty and the Welfare Economics of Medical Care, 53 AM. ECON. REV. 941, 959 (1963) ("If we think of utility as attached to income, then the costs of medical care act as a random deduction from this income, and it is the expected value of the utility of income after medical costs that we are concerned with."); see also supra notes 13-17 and accompanying text (introducing the Financial Security theory). Policymakers and scholars often propose catastrophic plans to translate this idea into practice. While a logical extension of the theory to the extent they protect individuals from especially high expenditures and reduce moral hazard, these plans have been criticized for causing health insecurity in practice by imposing high deductibles and cost-sharing on low- and middle-income workers unable to manage such costs.
112. See Christopher Tarver Robertson et al., Get Sick, Get Out: The Medical Causes of Home Mortgage Foreclosures, 18 HEALTH MATRIX 65, 66 (2008) (stating that up to 1.5 million Americans are at risk of losing their homes due to medical costs).
113. But see Jonathan Gruber & Helen Levy, The Evolution of Medical Spending Risk, J. ECON. PERSP., Fall 2009, at 25, 44 ("Our bottom line is that health spending risk facing a typical household has not increased much, if at all, since 1980.").
114. Id. at 252-53 (citing Richard Kronick & Todd Gilmer, Explaining the Decline in Health Insurance Coverage, 1979-1995, HEALTH AFF., Mar.-Apr. 1999, at 30).
115. The federal poverty level tables, for example, take family size into account. See Delayed Update of the HHS Poverty Guidelines for the Remainder of 2010, 75 Fed. Reg. 45,628, 45,629 (Aug. 3, 2010) [hereinafter 2010 HHS POVERTY GUIDELINES].
116. INTERNAL REVENUE SERV., DEP'T OF THE TREASURY, NO. 969, HEALTH SAVINGS ACCOUNTS AND OTHER TAX-FAVORED HEALTH PLANS 3 (2010), available at http://www.irs.gov/pub/irs-pdf/p969.pdf.
117. AMANDA NOSS, U.S. CENSUS BUREAU, NO. ACSBR 09-2, HOUSEHOLD INCOME FOR STATES: 2008-2009, at 1 (2010), available at http://www.census.gov/prod/ 2010pubs/acsbr09-2.pdf.
118. THE HENRY J. KAISER FAMILY FOUND. & HEALTH RESEARCH & EDUC. TRUST, EMPLOYER HEALTH BENEFITS: 2010 ANNUAL SURVEY 76 (2010) [hereinafter KFF & HRET 2010 SURVEY], available at http://ehbs.kff.org/pdf/2010/8085.pdf.
119. The House Bill provided more generous subsidies than the Senate Bill. See Affordable Health Care for America Act, H.R. 3962, 111th Cong. §§ 342-344 (as passed by the House on Nov. 7, 2009). The level of subsidies was a significant sticking point toward the end of the legislative process. HCERA struck a compromise by increasing the potential subsidies so that, in some cases, the subsidies are now more generous in the final law than in the House Bill.
120. See HCERA sec. 1001(a), § 1401(a), 26 U.S.C.A. § 36B(b)(3)(A) (West Supp. 1A 2010). For a side-by-side comparison of premium subsidies in the House and Senate Bills, see SARA R. COLLINS ET AL., THE COMMONWEALTH FUND, PUB. NO. 1343, THE HEALTH INSURANCE PROVISIONS OF THE 2009 CONGRESSIONAL HEALTH REFORM BILLS: IMPLICATIONS FOR COVERAGE, AFFOR-DABILITY, AND COSTS, at ix, exhibit ES-1 (2010), available at http://www.commonwealthfund.org/~/media/Files/ Publications/Fund%20Report/2010/Jan/Coverage%20Report/1343-Collins-cong-bills- coverage-report-172010.pdf.
121. Wage growth is calculated net of the employee's share of health benefits. See Christina Romer & Mark Duggan, Exploring the Link Between Rising Health Insurance Premiums and Stagnant Wages, COUNCIL ECON. ADVISORS (Mar. 12, 2010, 12:17 PM), http://www.whitehouse.gov/blog/2010/03/12/exploring-link-between- rising-health-insurance-premiums-and-stagnant-wages.
122. PRICEWATERHOUSECOOPERS, THE IMPACT OF LIFETIME LIMITS 1 (2009), available at http://www.hemophilia.org/docs/LifetimeLimitsReport.pdf.
123. See Tim Jost, How Does the Health Reform Legislation Affect Self-Insured Plans?, LEGAL SOLUTIONS IN HEALTH REF.: AN O'NEILL INST. BLOG (Mar. 31, 2010, 5:24 PM), http://oneillhealthreform.wordpress.com/2010/03/31/how-does-the- health-reform-legislation-affect-self-insured-plans. Even with this more inclusive interpretation, several important aspects of the insurance regulations, such as coverage of "essential health benefits" discussed in Section III.A, do not apply to self-insured plans.
124. See generally Sara Rosenbaum, A "Customary and Necessary" Program - Medicaid and Health Care Reform, 362 NEW ENG. J. MED. 1952 (2010) ("Claiming that the law 'converts what had been a voluntary federal-state partnership into a compulsory top-down federal program in which the discretion of [states] is removed,' the lawsuit attempts to portray states as compelled ⋯"(alteration in Rosenbaum) (quoting Complaint at 5, State of Florida v. U.S. Dep't of Health & Human Servs., No. 10-0091 (D. Fla. Mar. 23, 2010))).
125. Some criticize the quality of access available through this coverage because some physicians will not accept the low reimbursement rates under some states' Medicaid programs, as well as because of a general shortage and uneven geographical distribution of primary care physicians. See, e.g., KATHRYN NIX, THE HERITAGE FOUND., WEBMEMO NO. 2873, OBAMACARE: IMPACT ON THE UNINSURED 1 (2010), http://report.heritage.org/wm2873 (noting that doctors refuse Medicaid patients due to reimbursement concerns);
126. Robert Pear, Doctor Shortage Proves Obstacle to Obama Goals, N.Y. TIMES, Apr. 27, 2009, at A1 ("The need for more doctors comes up at almost every Congressional hearing and White House forum on health care."). Massachusetts saw significant access problems with expanded coverage.
127. See MASS. MED. SOC'Y, PHYSICIAN WORKFORCE STUDY 2-3 (2010) (describing physician shortages, particularly in primary care and internal medicine).
128. Nancy Snyderman, Obama on Health Care Policy: "No Free Lunch," MSNBC.COM (July 16, 2009, 9:04:56 A.M.), http://www.msnbc.msn.com/id/31929715/ ns/health-health-care.
129. John McCain, Better Care at Lower Cost for Every American, CONTINGENCIES, Sept.- Oct. 2008, at 28, 31, available at http://www.contingencies.org/ septoct08/mccain.pdf.
130. Press Release, Representative Steny Hoyer, Hoyer Gives Remarks on the 43rd Anniversary of Medicare (July 1, 2009), available at http://hoyer.house. gov/index. php?option=com-content&task=view&id=1700&Itemid=57.
131. See, e.g., Michele L. Landis, Fate, Responsibility, and "Natural" Disaster Relief: Narrating the American Welfare State, 33 L. & SOC'Y REV. 257, 261 (1999) (noting the "idea that there is an entrenched American preference for certain kinds of plights over others" (citations omitted)).
132. See Nir Eyal, Deep Exclusionary Reasons: The Case of Luck Egalitarianism and Personal Responsibility for Health 11 (unpublished manuscript), available at http://www.law.harvard.edu/programs/petrie-flom/workshop/eyal.pdf (last visited Mar. 15, 2011)
133. (citing Paul Dolan & Aki Tsuchiya, The Social Welfare Function and Individual Responsibility: Some Theoretical Issues and Empirical Evidence, 28 J. HEALTH ECON. 210 (2009),
134. and Erik Schokkaert & Kurt Devooght, Responsibility-Sensitive Fair Compensation in Different Cultures, 21 SOC. CHOICE & WELFARE 207 (2003)).
135. See Gary Schuman, Suicide and the Life Insurance Contract: Was the Insured Sane or Insane? That is the Question - Or Is It?, 28 TORT & INS. L.J. 745, 745-46 (1993) (noting that life and accident policies "almost always include a provision that if the insured commits suicide within a period of time specified in the policy, then the insurer shall not be obligated beyond returning the premiums paid" (footnote omitted)).
136. See Michael Sean Quinn & Andrea D. Levin, Directors' and Officers' Liability Insurance: Probable Direction in Texas Law, 20 REV. LITIG. 381, 433-34 (2001) (discussing directors' and officers' insurance policy exclusions for "fraud, dishonesty, and deliberate criminality").
137. RONALD DWORKIN, SOVEREIGN VIRTUE 73 (2000).
138. But see Peter Vallentyne, Brute Luck, Option Luck, and Equality of Initial Opportunities, 112 ETHICS 529, 532-38 (2002) (arguing that brute luck might be easier to define in theory than in application). Avoidability is difficult to determine because it relies upon an account of what is reasonably avoidable, which could be difficult or meaningless to distinguish in close cases, and arbitrary if people are not fully informed, rational decisionmakers.
139. Richard J. Arneson, Equality and Equal Opportunity for Welfare, 56 PHIL. STUD. 77, 85-87 (1989) (exploring the theory of "equal opportunity for welfare," wherein differences in life outcomes are due not to social inequities but rather to individual decisionmaking);
140. G.A. Cohen, On the Currency of Egalitarian Justice, 99 ETHICS 906, 916 (1989) (proposing an "equal access advantage" theory, wherein involuntary disadvantages - those beyond the actor's control - merit compensation, while disadvantages incurred voluntarily by the actor do not). Other luck-egalitarian discussions offer amendments to this bright-line rule.
141. See generally SHLOMI SEGALL, HEALTH, LUCK, AND JUSTICE 45-110 (2010)
142. Shlomi Segall, In Solidarity with the Imprudent: A Defense of Luck Egalitarianism, 33 SOC. THEORY & PRAC. 177, 198 (2007) (noting that "the principle of solidarity retains the distinction between the responsible and the irresponsible, allowing for (independent) penalties for irresponsible, and unnecessarily risky, conduct");
143. Daniel Markovits has suggested ways to amend this baseline rule. See generally Daniel Markovits, How Much Redistribution Should There Be?, 112 YALE L.J. 2291, 2298-99 (2003) (contending that "responsibility-tracking" egalitarianism that attempts to distinguish brute and option luck is problematic);
144. Daniel Markovits, Luck Egalitarianism and Political Solidarity, 9 THEORETICAL INQUIRIES L. 271, 275-76 (2007) (agreeing with criticisms of the "responsibility-tracking" strand of luck egalitarianism and supporting "more modest luck egalitarianism").
145. But cf. Elizabeth S. Anderson, What is the Point of Equality?, 109 ETHICS 287, 288-89 (1999) (criticizing certain egalitarians for their preoccupation with brute luck concerns and arguing instead that the focus of egalitarianism should be eliminating societal oppression);
146. Eighteen states have mandated that insurers provide coverage for maternity care in some form. See The Henry J. Kaiser Family Found., Mandated Coverage of Maternity Care, January 2010, STATEHEALTHFACTS.ORG, http://www.statehealthfacts.org/comparetable.jsp?ind=687&cat=7 (tracking coverage of maternity care by state). PPA-CA includes maternity and newborn care as one of the enumerated categories of "essential health benefits." PPACA § 1302, 42 U.S.C.A. § 18022 (West Supp. 1B 2010).
147. see also GUIDO CALABRESI, THE COSTS OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS 26 (1970) ("Apart from the requirements of justice, I take it as axiomatic that the principal function of accident law is to reduce the sum of the costs of accidents and the costs of avoiding accidents.").
148. See, e.g., REGINA E. HERZLINGER, MARKET-DRIVEN HEALTH CARE 245-52 (1997) (advocating for consumer-driven health care and arguing that such a change would cause health care costs to drop);
149. For articles discussing the complexity of medical causation, see, for example, D.I.W. Coggon & C.N. Martyn, Time and Chance: The Stochastic Nature of Disease Causation, 365 LANCET 1434 (2005);
150. A.J. McMichael, Commentary, Prisoners of the Proximate: Loosening the Constraints on Epidemiology in an Age of Change, 149 AM. J. EPIDEMIOLOGY 887 (1999).
151. This is the approach used to define "preferences" in rational-choice theory. See generally GARY S. BECKER, THE ECONOMIC APPROACH TO HUMAN BEHAVIOR (1976).
152. See generally Frederick J. Zimmerman, Structure, Agency, and Institutions: A Multi-Level Theory of the Determinants of Population Health (Dec. 22, 2010) (unpublished manuscript) (on file with author) (criticizing simplistic accounting of preferences and proposing a more complex model for understanding human choices);
153. see also S.A. Reijneveld, The Impact of Individual and Area Characteristics on Urban Socioeconomic Differences in Health and Smoking, 27 INT'L J. EPIDEMIOLOGY 33, 35, 38 (1998) (finding that poor health behaviors in impoverished areas are due overwhelmingly to individuals' low socioeconomic status).
154. See J.W. Lynch et al., Why Do Poor People Behave Poorly? Variation in Adult Health Behaviours and Psychosocial Characteristics by Stages of the Socioeconomic Lifecourse, 44 SOC. SCI. MED. 809, 809 (1997) ("The existence of socioeconomic inequalities in health has been well established. Attempts to explain these inequalities have often made reference to the fact that behavioural factors, such as smoking, physical activity, and diet, are differentially distributed by socioeconomic levels.").
155. See, e.g., Claude Bouchard, Genetics of Obesity: Overview and Research Directions ("The limited molecular marker studies published so far suggest that there will likely be several genes associated and/or linked with human obesity."), in THE GENETICS OF OBESITY (Claude Bouchard ed., 1994). For more information on this topic, see generally the collection of essays in THE GENETICS OF OBESITY, supra.
156. See Regina Austin, The Insurance Classification Controversy, 131 U. PA. L. REV. 517, 517, 534-35 (1983) (examining how an individual's occupation and geographic location are among factors that affect her "riskiness" grouping in insurance markets);
157. see also Jonathan Simon, The Ideological Effects of Actuarial Practices, 22 LAW & SOC'Y REV. 771, 771-73 (1988) (describing the ubiquity of actuarial techniques in modern day society and how they are used in industries, like the insurance market, to allocate risk).
158. See Robert Works, Whatever's FAIR - Adequacy, Equity, and the Underwriting Prerogative in Property Insurance Markets, 56 NEB. L. REV. 445, 471 (1977) ("Although the core concern of the underwriter is the human characteristics of the risk, cheap screening indicators are adopted as surrogates for solid information ⋯ The invitations to underwriters to introduce prejudgments and biases ... are apparent."), quoted in Austin, supra, note 252, at 534 n.92.
159. Melinda Beeuwkes Buntin et al., The Role of the Individual Health Insurance Market and Prospects for Change, HEALTH AFF., Nov.-Dec. 2004, at 79, 81 (2004) (describing insurance underwriting as a method of controlling against adverse selection);
160. MICHELLE M. DOTY ET AL., THE COMMONWEALTH FUND, ISSUE BRIEF, PUB. NO. 1300, FAILURE TO PROTECT: WHY THE INDIVIDUAL INSURANCE MARKET IS NOT A VIABLE OPTION FOR MOST U.S. FAMILIES 1-3 (2009), available at http://www. commonwealthfund.org/Content/Publications/Issue-Briefs/2009/Jul/ Failure-to-Protect.aspx (noting the difficulty of finding affordable coverage in the individual market);
161. Katherine Swartz, Justifying Government as the Backstop in Health Insurance Markets, 2 YALE J. HEALTH POL'Y L. & ETHICS 89, 97 (2001) (discussing methods by which insurers can distinguish high-risk individuals from low-risk individuals).
162. See Jan J. Barendregt et al., The Health Care Costs of Smoking, 337 NEW ENG. J. MED. 1052, 1053 (1997) ("The difference varies with the age group, but among 65-to-74-year-olds the costs for smokers are as much as 40 percent higher among men and as much as 25 percent higher among women.").
163. See Elliott S. Fisher et al., Slowing the Growth of Health Care Costs - Lessons from Regional Variation, 360 NEW ENG. J. MED. 849, 850 fig. (2009) (illustrating graphically that per capita 2006 Medicare expenditures in Miami, Florida were approximately dollar;16,000 compared to approximately dollar;6000 in Salem, Oregon).
164. See Atul Gawande, The Cost Conundrum, NEW YORKER, June 1, 2009, at 36, 36-37 (comparing health care expenditures in McAllen and El Paso, two similar Texas communities with a wide gap in dollars spent per Medicare enrollee).
165. See Michelle M. Mello & Meredith B. Rosenthal, Wellness Programs and Lifestyle Discrimination - The Legal Limits, 359 NEW ENG. J. MED. 192, 193 (2008)(noting that HIPAA makes it more difficult for plans to reward attainment of goals than to reward participation);
166. cf. Robert Steinbrook, Imposing Personal Responsibility for Health, 355 NEW ENG. J. MED. 753, 754-56 (2006) (describing West Virginia's Medicaid experiment with a program similar to a wellness program).
167. Critics argue that offering participants discounted premiums for goal attainment is an unfair means of cost-shifting to other, presumably less healthy, individuals in the pool who do not attain the wellness-program goals. See generally Harald Schmidt et al., Carrots, Sticks, and Health Care Reform - Problems with Wellness Incentives, 362 NEW ENG. J. MED. e3 (2009), http://www.nejm.org/doi/pdf/10.1056/NEJMp0911552 (discussing concerns related to these incentives that "[i]n some cases ... are really sticks dressed up as carrots").
168. N.C. Aizenman, "Basic" Gets Tricky in the Health-Care Law, WASH. POST, Jan. 15, 2011, at A2.
169. Letter from Jeffrey L. Gabardi, Senior Vice President, America's Health Insurance Plans to Mr. Donald B. Moulds, Acting Assistant Sec'y for Planning and Evaluation, Office of the Sec'y, Dep't of Health and Human Servs. 3 (May 14, 2010), available at http://www.thecre.com/pdf/20100613-AHIP%20MLR%20letter%20(5- 14-10)-FINAL.pdf.
170. See Lydia Saad, By Slim Margin, Americans Support Healthcare Bill's Passage, GALLUP (Mar. 23, 2010), http://www.gallup.com/poll/126929/slim-margin- americans-support-healthcare-bill-passage.aspx (finding forty-nine percent of Americans in support of the law following passage);
171. see also Kaiser Health Tracking Poll - September 2010, HENRY J. KAISER FAM. FOUND. (Sept. 27, 2010), http://www.kff.org/kaiserpolls/8104.cfm (noting that "the public remains divided on the new law");
172. Kaiser Health Tracking Poll - December 2010, HENRY J. KAISER FAM. FOUND. (Dec. 14, 2010), http://www.kff.org/kaiserpolls/8127.cfm (showing that even by the end of 2010, "the latest tracking poll shows the public still divided in their views of the health reform law").
173. While polling numbers have fluctuated regarding the percent of Americans who support the reform, they have been consistently high on the number who do not understand it. See Poll: Most Don't Understand Health Care Changes, CBSNEWS.COM (Sept. 22, 2010), http://www.cbsnews.com/stories/2010/09/22/ politics/main6890653.shtml ("Six months after President Barack Obama signed landmark legislation that will extend health care coverage to millions of people, Americans still do not really know what the law does.");
174. see also Ricardo Alonso-Zaldivar & Trevor Tompson, AP Poll: Health Care Law Making Us Muddle-Minded, ABCNEWS, Sept. 22, 2010, http://abcnews.go. com/Business/wireStory?id=11693092 (noting, for example, that "[m]any who wanted the health care system to be overhauled don't realize that some provisions they cared about actually did make it in").
175. Sara Kliff & Carrie Budoff Brown, Voters Not Budging on Health Care, POLITICO (Jan. 19, 2011, 5:50 PM), http://www.politico.com/news/stories/0111/ 47801.html ("Despite the millions spent on advertising, countless town halls and a reinvigorated debate over the new health law, neither party has accomplished the key goal: swaying public opinion on health reform.");
176. see also Sarah Kliff, Obama's Health Care Hard Sell, POLITICO (Aug. 10, 2010, 4:29 AM), http://www.politico.com/news/stories/0810/40835.html (discussing the administration's challenge in "persuading seniors that the health care law is a good deal for them").
177. See John Leland, Doctors Hear Many Questions About Health Law. Answers Are in Shorter Supply, N.Y. TIMES, Apr. 19, 2010, at A12 ("After months of public wrangling and brinksmanship in Washington, the nation's doctors now find themselves having to answer questions about a 2,400-page law that many do not understand themselves, and which they may have opposed.").
178. See generally Michael C. Dorf and Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 COLUM. L. REV. 267, 283 (1998) (describing democratic experimentalism as a form of government that "leave[s] room for experimental elaboration and revision to accommodate varied and changing circumstances").