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The Health Care Choice Act: the Individual Insurance Market and the Politics of 'Choice'

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The Health Care Choice Act: the Individual Insurance Market and the Politics of 'Choice' Saint Louis University School of Law Scholarship Commons All Faculty Scholarship 2007 The Health Care Choice Act: The Individual Insurance Market and the Politics of 'Choice' Elizabeth Pendo Follow this and additional works at: https://scholarship.law.slu.edu/faculty Part of the Health Law and Policy Commons 07_PENDO 4/23/2007 3:52:23 PM 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 in- creased access to or usage of health care.3 At the same time, health in- surance is increasingly hard to get, keep, and afford. As a result, a grow- ing number of Americans are uninsured—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 insurance through em- * 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 al., Health Spending Projections for 2002-2012, HEALTH AFF., Feb. 7, 2003, at W3-54, W3-54, available at http://content.healthaffairs.org/cgi/reprint/hlthaff.w3.54v1.pdf. 3. Gerard Anderson et al., It’s the Prices, Stupid: Why the United States is So Different from Other Countries, HEALTH AFF., May-June 2003, at 89, 90, available at http://content.healthaffairs.org/cgi/reprint/22/3/89. According to testimony before the Senate, “we pay higher prices for the same services, have higher administrative costs, and perform 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/usr_doc/davis_senatecommitteetestimony_654.pdf. 4.SARA R. COLLINS ET AL., THE COMMONWEALTH FUND, GAPS IN HEALTH INSURANCE: AN ALL-AMERICAN PROBLEM 1 (2006), available at http://www.cmwf.org/usr_doc/collins_gapshltins_920.pdf. 465 07_PENDO 4/23/2007 3:52:23 PM 466 WESTERN NEW ENGLAND LAW REVIEW [Vol. 29:465 ployment,5 the erosion of employer-sponsored coverage has increased the ranks of the uninsured.6 It has also pushed more workers, retirees, and their families into the individual insurance market—a small but im- portant 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 insur- ance coverage in 20057—the individual market is increasingly impor- tant.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 health insurance.9 5.CARMEN DENAVAS-WALT ET AL., U.S. CENSUS BUREAU, INCOME, POVERTY, AND HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2004, at 16 (2005), available 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.org/uninsured/upload/health-coverage-in-america-2004- data-update-report.pdf [hereinafter 2004 DATA UPDATE] (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 em- ployer-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-1: Health Insur- ance Coverage Status and Type of Coverage by Sex, Race and Hispanic Origin, 1987 to 2005, http://www.census.gov/hhes/www/hlthins/historic/hihistt1.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 mil- lion people, had individual coverage); BETH C. FUCHS, THE ROBERT WOOD JOHNSON FOUND., HEALTH POLICY ALTERNATIVES, INC., EXPANDING 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/publications/synthesis/reports_and_briefs/pdf/no4_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 al., Individual Insurance: How Much Financial Protection Does it Pro- vide?, HEALTH AFF., Apr. 17, 2002, at W172 [hereinafter Gabel et al., Individual Insurance], available at http://content.healthaffairs.org/cgi/reprint/hlthaff.w2.172v1.pdf (quoting Deborah L. Rogal & Anne K. Gauthier, The Evolution of the Individual Insurance Market, 25 J. HEALTH POL. POL’Y & L. 3 (2000)) (“The long-term decline of employer-based insurance has thrust individual insurance, long viewed by the insurance industry as the ‘residual market’ onto center stage.”). 9. See, e.g., FUCHS, supra note 7 (examining state reforms of the insurance market); Press Release, The White House, Making Health Care More Affordable and Accessible for All Americans (May 1, 2006), available at 07_PENDO 4/23/2007 3:52:23 PM 2007] THE HEALTH CARE CHOICE ACT 467 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)10 aims to reform per- ceived problems in the individual market, and is touted as part of the so- lution to the problem of the uninsured. It purports to allow individuals who are not eligible for or cannot afford group coverage to purchase an individual policy in and from any state. If passed, the HCCA would al- low health insurers to offer individual policies of insurance from any state without being required to comply with the laws of the insured’s own state. Its proponents claim that it would lower the cost of individual health insurance by bypassing state laws such as those mandating bene- fits, and offer consumers more choice. The HCCA has not received a lot of attention, perhaps because 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 examining because it repre- sents a bad choice for the individual market. It does not appear that the HCCA would lower costs for most purchasers, 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 protections, and to market and sell those policies to consumers in all other states. This would erode important consumer pro- tections under state law and undercut the role of the states in regulating health insurance products and protecting their citizens. Worse, the HCCA could increase the existing problem of fragmen- http://www.whitehouse.gov/news/releases/2006/05/20060501-8.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 Ameri- cans purchase health coverage on the individual market). The Journal of Health Politics, Pol- icy 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 Cong. (2005); S. 1015, 109th Cong. (2005). 11. Health Insurance Marketplace Modernization and Affordability Act (Enzi Bill), S. 1955, 109th Cong. (2005). The Enzi Bill, named in recognition of its sponsor, Senator Mi- chael Enzi, would have permitted small businesses and trade association to join together to form association health plans across state lines, and to offer coverage in a state without com- plying with its mandated benefit laws. 152 CONG. REC. S4459 (daily ed. May 11, 2006) (statement of Sen. Enzi). The bill was effectively blocked in the Senate on May 11, 2006, by a failure of a motion to close debate.
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