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THE HEALTH CARE CHOICE ACT: the INDIVIDUAL INSURANCE MARKET and the POLITICS of View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Western New England University School of Law Western New England Law Review Volume 29 29 (2006-2007) Issue 2 SYMPOSIUM: THE POLITICS OF Article 7 HEALTH LAW 1-1-2007 THE HEALTH CARE CHOICE ACT: THE INDIVIDUAL INSURANCE MARKET AND THE POLITICS OF "CHOICE" Elizabeth A. Pendo Follow this and additional works at: http://digitalcommons.law.wne.edu/lawreview Recommended Citation Elizabeth A. Pendo, THE HEALTH CARE CHOICE ACT: THE INDIVIDUAL INSURANCE MARKET AND THE POLITICS OF "CHOICE", 29 W. New Eng. L. Rev. 473 (2007), http://digitalcommons.law.wne.edu/lawreview/vol29/iss2/7 This Symposium Article is brought to you for free and open access by the Law Review & Student Publications at Digital Commons @ Western New England University School of Law. It has been accepted for inclusion in Western New England Law Review by an authorized administrator of Digital Commons @ Western New England University School of Law. For more information, please contact [email protected]. THE HEALTH CARE CHOICE ACT: THE INDIVIDUAL INSURANCE MARKET AND THE POLITICS OF "CHOICE" ELIZABETH A. PENDO* INTRODUCTION Our health care system is in crisis. Although we spent nearly $1.9 trillion on health care in 2004,1 a figure expected to rise to $3.1 trillion by 2012,2 this appears to be the result of higher prices, rather than increased access to or usage of health care.3 At the same time, health insurance is increasingly hard to get, keep, and afford. As a result, a growing number of Americans are unin­ sured-46 million people in 2004, an increase of 6 million since 2000.4 Traditionally, employer-sponsored group insurance plans have been the backbone of health insurance coverage in the United States. While it is still true that most Americans get their health * Copyright © 2006-07. Professor of Law, St. Thomas University School of Law; B.A. 1990, University of California, Los Angeles; J.D. 1993, Boalt Hall School of Law, University of California, Berkeley. Thank you to Nicolas Johnson and Robert Kerr for excellent research assistance, and to Kathy Cerminara for her thoughtful comments. 1. THE HENRY J. KAISER FAMILY FOUND., TRENDS AND INDICATORS IN THE CHANGING HEALTH CARE MARKETPLACE, available at http://www.kff.org/insurance/ 7031 (follow the "Section 1" hyperlink) [hereinafter TRENDS AND INDICATORS] (last visited Mar. 22, 2007) ("Expenditures in the United States on health care were nearly $1.9 trillion in 2004, more than two and a half times the $717 billion spent in 1990, and more than seven times the $255 billion spent in 1980."). 2. Stephen Heffler et aI., Health Spending Projections for 2002-2012, HEALTH AFF., Feb. 7, 2003, at W3-54, W3-54, available at http://content.healthaffairs.org/cgi/ reprintlhlthaff.w3.54v1.pdf. 3. Gerard Anderson et aI., It's the Prices, Stupid: Why the United States is So Dif­ ferent from Other Countries, HEALTH AFF., May-June 2003, at 89, 90, available at http:// content.healthaffairs.org/cgilreprint/22/3/89. According to testimony before the Senate, "we pay higher prices for the same services, have higher administrative costs, and per­ form more complex specialized procedures" than other countries. KAREN DAVIS & BARBARA S. COOPER, THE COMMONWEALTH FUND, AMERICAN HEALTH CARE: WHY So COSTLY? 3 (2003), available at http://www.cmwf.org/uscdoc/davis_senatecommittee testimony_654.pdf. 4. SARA R. COLLINS ET AL., THE COMMONWEALTH FUND, GAPS IN HEALTH IN­ SURANCE: AN ALL-AMERICAN PROBLEM 1 (2006), available at http://www.cmwf.org/ usr_doc/collins....gapshltins_920.pdf. 473 474 WESTERN NEW ENGLAND LAW REVIEW [Vol. 29:473 insurance through employment,S the erosion of employer-spon­ sored coverage has increased the ranks of the uninsured.6 It has also pushed more workers, retirees, and their families into the indi­ vidual insurance market-a small but important part of the broader health insurance market. Despite its relatively small size-9.1 percent of the population, or nearly 27 million people, turned to individual policies for health insurance coverage in 2005 7-the individual market is increasingly important.8 States have been active in regulating the individual market, and there now appears to be increased federal interest in connection with proposed tax credits for the purchase of individual 5. CARMEN DENAVAS-WALT ET AL., U.S. CENSUS BUREAU, INCOME, POVERTY, AND HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2004, at 16 (2005), avail· able at http://www.census.gov/prod/2005pubs/p60-229.pdf ("The percentage of people covered by employment-based health insurance decreased to 59.8 percent in 2004, from 60.4 percent in 2003."); see also KAISER COMM'N ON MEDICAID & THE UNINSURED, THE HENRY J. KAISER FAMILY FOUND., HEALTH INSURANCE COVERAGE IN AMERICA: 2004 DATA UPDATE 10 fig.2 (2005), available at http://www.kff.orgluninsured/upload/ health-coverage-in-america-2004·data-update-report.pdf [hereinafter 2004 DATA UP. DATE] (61 percent of nonelderly covered by employer-sponsored health insurance); GARY CLAXTON ET AL., THE HENRY J. KAISER FAMILY FOUND. & HEALTH REs. & EDUC. TRUST, EMPLOYER HEALTH BENEFITS SURVEY: 2005 ANNUAL SURVEY 39-49 (2005), available at http://www.kff.org/insurance/7315/upload/7315.pdf (60 percent of nonelderly covered by employer-sponsored health insurance in 2005). 6. For an overview of the uninsured and access to care, see Elizabeth A. Pendo, Images of Health Insurance in Popular Film: The Dissolving Critique, 37 J. HEALTH L. 267, 284-87 (2004) [hereinafter Pendo, Images of Health Insurance in Popular Film]. 7. U.S. Census Bureau, Historical Health Insurance Tables, Table HI-I: Health Insurance Coverage Status and Type of Coverage by Sex, Race and Hispanic Origin, 1987 to 2005, http://www.census.gov/hhes/wwwlhlthinslhistoriclhihistt1.html (last visited Mar. 22, 2007); see also DENAVAS-WALT ET AL., supra note 5, at 19 fig.6 (stating that in 2004, 9.3 percent of the population had individual coverage; in 2003, 9.2 percent); 2004 DATA UPDATE, supra note 5, at tbl.1 (stating that in 2004, 5.4 percent of the population under age 65, or nearly 14 million people, had individual coverage); BETH C. FUCHS, THE ROBERT WOOD JOHNSON FOUND., HEALTH POLICY ALTERNATIVES, INC., Ex· PANDING THE INDIVIDUAL HEALTH INSURANCE MARKET: LESSONS FROM THE STATE REFORMS OF THE 1990s, at 3, 18 n.4 (2004), available at http://www.rwjf.org/ pubJications/synthesis/reports_and_briefs/pdf/n04_synthesisreport.pdf (stating that in 2002, only about 7 percent of Americans under the age of 65, or approximately 17 million people, had individual health insurance coverage). 8. Jon Gabel et aI., Individual Insurance: How Much Financial Protection Does it Provide?, HEALTH AFF., Apr. 17, 2002, at WI72 [hereinafter Gabel et aI., Individual Insurance], available at http://content.healthaffairs.orglcgilreprint/hlthaff.w2.172vl.pdf (quoting Deborah L. Rogal & Anne K. Gauthier, The Evolution ofthe Individual Insur­ ance Market, 25 J. HEALTH POL. POL'y & L. 3 (2000)) ("The long-term decline of em­ ployer-based insurance has thrust individual insurance, long viewed by the insurance industry as the 'residual market' onto center stage."). 2007] THE HEALTH CARE CHOICE ACT 475 health insurance.9 Unfortunately, this market has not worked well for consumers, because individual policies usually cost more and cover less than those obtained through an employer, and even those consumers who can afford it may not have access. The Health Care Choice Act of 2005 (HCCA)lO aims to reform perceived problems in the individual market, and is touted as part of the solution to the problem of the uninsured. It purports to al­ low individuals who are not eligible for or cannot afford group cov­ erage to purchase an individual policy in and from any state. If passed, the HCCA would allow health insurers to offer individual policies of insurance from any state without being required to com­ ply with the laws of the insured's own state. Its proponents claim that it would lower the cost of individual health insurance by bypas­ sing state laws such as those mandating benefits, and offer consum­ ers more choice. The HCCA has not received a lot of attention, perhaps be­ cause it was overshadowed by another bill, the Health Insurance Marketplace Modernization and Affordability Act (Enzi Bill), aimed at the small-group market. 11 But the HCCA is worth exam­ ining because it represents a bad choice for the individual market. It does not appear that the HCCA would lower costs for most pur­ chasers, increase meaningful choices, or reduce the overall number of uninsured. Moreover, the HCCA would permit health insurers to sell policies from the states with the fewest consumer protec­ tions, and to market and sell those policies to consumers in all other 9. See, e.g., FUCHS, supra note 7 (examining state reforms of the insurance mar­ ket); Press Release, The White House, Making Health Care More Affordable and Ac­ cessible for All Americans (May 1, 2006), available at http://www.whitehouse.gov/news/ releases/2006/05/20060501-S.html [hereinafter "Making Health Care More Affordable and Accessible for All Americans"] (outlining President George W. Bush's health care agenda, including a refundable tax credit to help low-income Americans purchase health coverage on the individual market). The Journal of Health Politics, Policy and Law also devoted an entire issue to policy initiatives in the individual market. 25 J. HEALTH POL. POL'y & L. 3 (2000). 10. The Health Care Choice Act of 2005, H.R. 2355, 109th Congo (2005); S. 1015, 109th Congo (2005). 11. Health Insurance Marketplace Modernization and Affordability Act (Enzi Bill), S. 1955, 109th Congo (2005).
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