Health insurance mandate

A health insurance mandate is either an employer or individual mandate to obtain private health insurance, instead of (or in addition to) a National Health Service or National Health Insurance.^[1]

United States

Federal insurance legislation signed in 2010 includes both employer and individual mandates to take effect in 2014, but it is controversial and is being widely challenged in federal courts. As of 2011, more than half the states and several organizations and individuals are suing to challenge the mandate in federal courts, and the decisions so far have divided almost evenly; the issue is expected to be decided by the United States Supreme Court. After a federal district court judge invalidated the entire legislation based on the individual mandate provision being unconstitutional, a divided three-judge panel of the U.S. 11th Circuit Court of Appeals based in Atlanta affirmed in part: the panel agreed the individual mandate was unconstitutional, but decided that it could be severed, allowing the rest of the statute to remain; as of October 2011, both sides have asked the Supreme Court to hear the case.^[2]

Insurance lobbyists (AHIP) in the United States say the mandate is necessary to support guaranteed issue and community rating, which limit underwriting by insurers; insurers say the mandate is intended to prevent adverse selection by ensuring healthy individuals purchase insurance and thus broaden the risk pool.^[3] Studies of empirical evidence suggest that the threat of adverse selection is exaggerated,^[4] and that risk aversion and propitious selection may balance it.^[5] For example, several US states have guaranteed issue^[6] and limits on rating,^[7] but only Massachusetts has an individual mandate;^[8] similarly, although Japan has a nominal mandate, around 10% of individuals do not comply, and there is no penalty (they simply remain uninsured - see below). Without mandates, for-profit insurers have necessarily relied on risk aversion to charge premiums over expected risks, but have been constrained by what customers are willing to pay; mandates eliminate that constraint, allowing insurers to charge more.^[9] Governments that impose a mandate must subsidize those who cannot afford it, thus shifting the cost onto taxpayers.^[10]

In 2010, the Congressional Budget Office estimated that more than 20 million people would remain uninsured despite the mandates and subsidies enacted.^[11] A 2004 editorial in USA Today asserted that United States Department of Health and Human Services (HHS) data show the uninsured are unfairly billed for services at rates far higher—on average 305% at urban hospitals in California—than are the insured; USA Today concluded that "millions of [uninsured patients] are forced to subsidize insured patients."^[12] Citing data from the Urban Institute and the experience of Massachusetts (see below), the Cato Institute argues that without the uninsured, "The insured would pay more, not less."^[13] The Pacific Research Institute argues that the uninsured subsidize the insured, do not drive up the cost of health care, and use fewer services than the insured.^[14]

The Los Angeles Times reported in 2009 that mandates without cost controls "add up to higher costs for taxpayers and consumers."^[15] The Washington Post reported that even with mandates insurers would likely continue discrimination to "chase away the chronically ill," quoting Karen Pollitz, research professor at the Georgetown University Health Policy Institute: "The race is to the bottom."^[16] The Wall Street Journal said it would render constitutional limits on federal power "a dead letter" and asked, "If the insurance mandate stands, then why can't Congress insist that Americans buy GM cars, or that obese Americans eat their vegetables or pay a fat tax penalty?"^[17]

National Nurses United, the nation's largest registered nurses organization and a supporter of Medicare-for-all, ranked the individual mandate first in a list of 10 problems explaining their opposition to the bills passed by Congress in 2009.^[18] The California Nurses Association, which supports single-payer healthcare, added that due to "insurance company pirates and their predatory pricing practices...subsidies and tweaking will amount to little more than an umbrella in a hurricane."^[19] Physicians for a National Health Program, which also supports single-payer healthcare, wrote that "mandate-based health reforms don't work."^[20]

The insurance mandate has faced opposition across the political spectrum, from left-leaning groups such as the Green Party and other advocates of single-payer healthcare to right-leaning groups such as the Heritage Foundation, FreedomWorks, and the Cato Institute as well as some members of the U.S. Senate and House of Representatives.^[21][22][23] In the Senate Finance Committee, Republican Jim Bunning of Kentucky has called a mandate 'un-American' and argued that it "may even be unconstitutional".^[24]

However, the idea has traditionally gathered support from insurance companies^[15] and some politicians within the Republican Party (Charles Grassley, Mitt Romney, and the late John Chafee are examples),^[21] and became part of the defeated Clinton health care plan of 1993^[25][26] and Hillary Clinton's plan in 2008.^[27] Some sources trace the idea to the Heritage Foundation around 1990,^[28] but the Heritage Foundation has since concluded that the mandate is unconstitutional.^[29] In 2008, mandate supporter Larry Levitt, Vice President of the Kaiser Family Foundation (founded by the founder of the Kaiser Permanente HMO), stated in a Kaiser Network "interactive web show" that the mandate has been at the heart of health care reform proposals in the United States.^[30] In the same Kaiser network show, Dr. Len Nichols, Director of the Health Policy Program at the New America Foundation, called an individual mandate an "absolutely necessary" pre-condition to universal health care: he stated that, without a mandate, only a maximum of about half of uninsured Americans would likely obtain coverage under any non-compulsory reform.^[30] A 2008 AHIP/Kaiser forum cited Dutch and Swiss mandates (see below); AHIP's published report does not mention penalties but says Switzerland "enforces the rules in many ways..."^[31] In October 2009, Kaiser Health News reported that "the mandate has become a target for both Democrats and Republicans" and stated, "The insurance industry is clearly worried about the mandate being defanged."^[32]

Opponents such as Michael Cannon, Director of Health Policy Studies at the Cato Institute, make a philosophical argument that people should have the right to live without government social interference as a matter of individual liberty. He has stated that federal, state, and local governments are not willing or able to raise the necessary funds to effectively subsidize people who cannot currently afford insurance. He has also stated that the costs of increasing coverage are far higher than other reforms, such as reducing the amount of errors and accidents in treatment, which would accomplish as much or more benefit to society.^[30]

Writing in the Huffington Post, Michael Moore criticized mandates as part of a "massive government bailout for the insurance industry."^[33] On FireDogLake, Jane Hamsher called it "lemon socialism."^[34] Consumer Watchdog (CWD) writes, "Requiring people to buy unaffordable and unreliable insurance policies is not the solution to the health care crisis;"^[35] CWD's John Simpson added, "Mandating that everyone must buy insurance from private companies simply guarantees huge profits for the industry."^[36] Interviewed on Democracy Now!, Ralph Nader said people are "being forced to buy junk insurance policies" and called the bill's imminent enactment "a disaster."^[37]

On CNN, Lou Dobbs Tonight analyzed the financial costs of an individual mandate and quoted The Politico's Nia-Malika Henderson: "the individual mandate is really going to rub a lot of people the wrong way."^[38] Summarizing published sources of the debate from 2007 through 2009, James Joyner concluded: "Forcing Americans to buy health insurance regardless of whether they want it or can afford it is extremely controversial, with not only Republicans but most of the Democratic contenders for the presidency in 2008 opposing it."^[39]

There is also disagreement as to whether federal mandates can be constitutional.^[40] In 2010, a majority of the 50 states filed litigation contending the individual mandate is unconstitutional,^[41] and newly elected Republican governors campaigned promising to add their states to the list in 2011; federal district courts have split on the constitutionality issue, which is expected ultimately to reach the Supreme Court;^[42][43] also, state legislative actions may at least cause delay.^[44][45] The Militia Acts of 1792, based on the Constitution's militia clause (in addition to its affirmative authorization to raise an army and a navy), would have required every "free able-bodied white male citizen" between the ages of 18 and 45, with a few occupational exceptions, to "provide himself" a weapon and ammunition;^[46] however, it was never enforced so its constitutionality was never litigated.^[47] In 1994, the Congressional Budget Office issued a report describing an individual mandate as "an unprecedented form of federal action." The agency also wrote, "The government has never required people to buy any good or service as a condition of lawful residence in the United States."^[48]

In a September 2010 working paper,^[49] a forthcoming article in the NYU Journal of Law and Liberty, and a lecture given at NYU, Randy Barnett of Georgetown University Law Center argues that the mandate is unconstitutional under the doctrine of the Commerce and Necessary and Proper Clauses, and that enforcing it is equivalent to "commandeering the people." Penalizing inaction, he argues, is only defensible when a fundamental duty of a person has been established. He also notes that Congress fails to enforce the mandate under its taxing power because the penalty is not revenue-generating according to the Act itself.

Public opinion polls from 2009 through 2011 continue to find that most Americans reject penalizing people for not buying health insurance.^[50][51][52] In 2010, voters in at least three states enacted ballot measures to block the individual mandate, "laying the foundation for future legal challenges... Oklahoma approved an opt-out ballot initiative by a 2-to-1 margin. Proposition 106 in Arizona gained 55 percent of the vote while Colorado's Amendment 63 was trailing early Wednesday morning. Missouri voters approved a similar measure, Proposition C, with 71 percent support on a primary ballot in August."^[53] In November 2011, the issue will appear on the ballot in Ohio, where a Quinnipiac Poll of registered voters found that "when asked if they agree with a mandate that they obtain coverage or face fines, opposition jumped to 67 percent, with just 29 percent backing the mandate."^[54]

US States

A 2005 Massachusetts law mandating health insurance, in part by offering subsidized insurance programs to poor and lower income residents, replaced 28% of unpaid hospital visits with a 28% increase in taxpayer subsidized insurance (MassHealth and Commonwealth Care).^[55] Contrary to supporters' claims that insurance coverage and preventive care would save money by reducing emergency visits, in fact both emergency visits and costs increased significantly.^[56] Before the law was passed, per capita health care costs in Massachusetts were the highest for any part of the country except D.C.^[57] and after the law passed insurance premiums there increased faster than the rest of the United States with premiums reported to be the highest in the country.^[58] The Wall Street Journal reported that mandates squeezed "those in the middle" in Massachusetts.^[59] Writing in the New York Times opinion blog "Room for Debate," single-payer health care advocate Marcia Angell (a former editor-in-chief of the New England Journal of Medicine), said that a coverage mandate would not be necessary within a single-payer system and that even within the context of the current system she was "troubled by the notion of an individual mandate."^[60] She described the Massachusetts mandates as "a windfall for the insurance industry" and wrote, "Premiums are rising much faster than income, benefit packages are getting skimpier, and deductibles and co-payments are going up."^[60]

Other states do provide community rating and guaranteed issue, without mandates and with lower premiums than Massachusetts.^[61] For example, New York, which borders Massachusetts, requires pure community rating and individual guaranteed issue.

Japan

Main article: Health care system in Japan

Japan has a universal health care system that mandates all residents have health insurance, either at work or through a local community-based insurer, but does not impose penalties on individuals for not having insurance.^[62] The Japanese health ministry "tightly controls the price of health care down to the smallest detail. Every two years, the doctors and the health ministry negotiate a fixed price for every procedure and every drug. That helps keep premiums to around $280 a month for the average Japanese family."^[63] Insurance premiums are set by the government, with guaranteed issue and community rating.^[64] Insurers are not allowed to deny claims or coverage, or to make profits (net revenue is carried over to the next year, and if the carryover is large, the premium goes down).^[63] Around 10% evade the compulsory insurance premium; municipal governments do not issue them insurance cards, which providers require.^[62] Voluntary private insurance is available through several sources including employers and unions to cover expenditures not covered by statutory insurance, but this accounts for only about 2% of health care spending.^[62] Generally, doctors cannot deny care to patients in the low-priced universal system because if they did, they would "go out of business."^[65][66] Total spending is around half the American level, and taxpayers subsidize the poor.^[63]

Australia

Australia's national health insurance program is known as Medicare, and is financed by general taxation including a Medicare levy on earnings; use of Medicare is not compulsory and the tax code encourages people to buy private insurance.^[67] Individuals with high annual incomes (A$70,000 in the 2008 federal budget) who do not have specified levels of private hospital coverage are subject to an additional 1% Medicare Levy Surcharge.^[68] People of average incomes and below may be eligible for subsidies to buy private insurance, but face no penalty for not buying it.^[69] Private insurers must comply with guaranteed issue and community rating requirements, but may limit coverage of pre-existing ailments for up to one year to discourage adverse selection.

The Netherlands

Main article: Healthcare in the Netherlands

The Netherlands has a health insurance mandate^[70] and allows for-profit companies to compete for minimum coverage insurance plans, though there are also mutual insurers so use of a commercial for-profit insurer is not compulsory. The government regulates the insurers and operates a risk equalization mechanism to subsidize insurers that insure relatively more expensive customers. Several features hold down the level of premiums which facilitate public compliance with the mandate. The cost of health care in the Netherlands is higher than the European average but is less than in the United States. Half of the cost of insurance for adults is paid for by an income-related tax with which goes towards a subsidy of private insurance via the risk reinsurance pool operated by the regulator. The government pays the entire cost for children. Forty percent of the population is eligible for a premium subsidy. About 1.5 percent of the legal population is estimated to be uninsured. The architects of the Dutch mandate did not envision any problem with non-compliance, the initial legislation created few effective sanctions if a person does not take out insurance or pay premiums, and the government is currently developing enforcement mechanisms.^[71]

Switzerland

Main article: Health care in Switzerland

Switzerland's system approximates to that of the Netherlands with regulated private insurance companies competing to provide the minimum necessary coverage to meet its mandate. Premiums are not linked to incomes, but the government provides subsidies to lower-class individuals to help them pay for their plans. About 40% of households received some kind of subsidy in 2004. Individuals are free to spend as much as they want for their plans and buy additional health services if desired. The system has virtual universal coverage, with about 99% of people having insurance. The laws behind the system were created in 1996.^[72] A recent issue in the country is their rising health care costs, which are higher than European averages. However, those rising costs are still a little less than the increases in the United States.^[72]

United States

Federal insurance legislation signed in 2010 includes both employer and individual mandates to take effect in 2014, but it is controversial and is being widely challenged in federal courts. As of 2011, more than half the states and several organizations and individuals are suing to challenge the mandate in federal courts, and the decisions so far have divided almost evenly; the issue is expected to be decided by the United States Supreme Court. In August 2011, after a federal district court judge invalidated the entire legislation based on the individual mandate provision being unconstitutional, a divided three-judge panel of the U.S. 11th Circuit Court of Appeals based in Atlanta affirmed in part: the panel agreed the individual mandate was unconstitutional, but decided that it could be severed, allowing the rest of the statute to remain. The Obama Administration decided not to ask the full Appeals Court to review the decision and instead directly asked the Supreme Court to hear the case.^{[73][74][43][75]}

France and Germany

In the two largest EU countries, France and Germany, Statutory Health Insurance (SHI) mandates employers and employees pay into statutory sickness funds. In France, private health insurance (PHI) is voluntary and used to increase the reimbursement rate from the statutory sickness system. The same applies in Germany where it is also possible to opt out of SHI if you are a very high earner and into a PHI but if a person has reached the age of 55 and is in the PHI sector he or she must remain covered by PHI and cannot opt back into SHI. Persons who are unemployed can usually continue their payments through social insurance and the very poor receive support from the government to be insured. Most workers are insured through compulsory membership of "sickness funds" that are non-profit entities established originally by trades unions and now given statutory status. In Germany and France, as is the case with most European health care finance, the personal contribution to health care financing varies according to a person's income level and not according to their health status. compliance with the mandate is high. Only 0.2% of Germans are uninsured, mainly self-employed, rich and poor, and persons who have failed to pay contributions to the statutory insurance or premiums to the private health insurance. Between 1990 and 2000 the share of French SHI income coming directly from employees via salaries fell from around 30% to just 3% and employer direct contributions also fell. The difference was made up by a rise in income from government taxation, thus widening the mandatory contribution base to the health insurance system.^[76][77]

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