Implications of the ACA Supreme Court Case

The Trump Administration presented an amicus brief before the Supreme Court arguing the entire ACA is now unconstitutional because Congress in a 2017 tax law eliminated fines for violating the individual mandate.  This note summarizes the brief, evaluates the likelihood the argument that the ACA is unconstitutional will prevail, and discusses potential actions Democrats can take to protect health insurance.


The brief makes four arguments

  • Plaintiffs have the right to sue,
  • Eliminating the fines for the individual mandate means the law is no longer a tax law and is instead an unconstitutional mandate,
  • The individual mandate is inseverable from the guarantee-issue provision and the community-rating provision of the law,
  • The remaining provisions of the ACA are inseverable either due to the repeal of the fine for violating the individual mandate or the finding that guarantee-issue and community-rating provisions no longer apply.


Comment One:   I am not a lawyer and cannot comment on standing, which is a pure legal issue.

Comment Two:  The previous Supreme court case decided 5-4 that the ACA was a tax law and not an unconstitutional mandate. This article explains that Roberts saved the ACA by finding that it was consistent with Congress’s tax authority.

Now that the tax rate for violating the individual mandate has been zeroed out it is harder to argue the individual mandate is a tax.

Comment Three: Many Congress people supported the provisions on guarantee issue and age rating in the ACA because the individual mandate forced healthy people to obtain insurance even if they were highly leveraged and struggling financially.   There is a lot of empirical evidence supporting the view that in the absence of the individual mandate fewer healthy people would obtain health insurance and more people would take out short-term health plans leaving themselves underinsured.  The increase in the number of healthy people who go without health insurance or choose to underinsure increases insurance premiums and decreases competition in state exchange markets.

The ACA states that provisions of the law are severable and that the removal of one provision does not invalidate the rest of the law. However, there is no doubt the modification of the law by eliminating fines for the individual mandate alters the risk pool, has a large impact on insurance firms, and was not the outcome desired by many in Congress when they voted for the ACA.

Comment Four: The elimination of the guarantee-rating and community-rating provisions of the ACA would also alter the economic impacts of other aspects of the law including the premium tax credit, annual and lifetime benefit caps, and the employer mandate.

Currently, premiums and the premium tax credit are based on the age of insured households.  A ruling by the Supreme court on behalf of the plaintiffs in this case would allow insurance companies to base premiums on health status instead of or in combination with age.  The actual regulatory authority over premiums would probably revert to state governments.

These changes in premiums would result in either the denial of insurance coverage or prohibitively expensive insurance for people with pre-existing conditions.   It is likely most insurance plans would impose annual and/or lifetime caps on benefits.  These changes would even make health insurance unaffordable or unavailable for some high-income people with pre-existing conditions.

The premium tax credit would be unworkable or would work in a way drastically different than intended by the ACA even if the Supreme Court ruled that it was severable from protections in pre-existing conditions.

Comment Five:  The court may side with plaintiffs on the main issues raised in this case.  Thomas and Alito dissented in the previous case and are likely to do so again. The logic used by Roberts has been undermined by the repeal of fines for the individual mandate.  One Bloomberg law article found that Gorsuch and Thomas are the justices most likely to overturn an entire law because of the removal of a specific item.   However, other justices may be willing to remove the protections for people with pre-existing conditions, which would essentially cripple other aspects of the law like the premium tax credit.

It is easy to envision an outcome to this case where a majority of justices rule the ACA unconstitutional in separate decisions reflecting different legal theories.

Potential Actions by Democrats:

 The overwhelming majority of Republicans in the U.S. Senate (perhaps all) want to kill the entire ACA.  If the Republicans retain control of the U.S. Senate and the Supreme court rules the ACA is unconstitutional, millions will lose their health insurance or gravitate towards inadequate insurance coverage.  The avoidance of this outcome and near-term progress in improving health insurance markets in the United States requires a Democratic sweep in November 2020.

 The legal threat to the ACA before the Supreme court is the result of a tax law change.  The easiest way to save the law is through the passage of a new tax law.  Most legislation requires 60 votes to clear the U.S. Senate.   Tax changes can clear the Senate with a simple majority though a process called reconciliation.  Tax changes addressing issues raised in the case before the Supreme court could conceivably take place before the Supreme Court ruling rendering the current court case moot.

The simplest or most obvious tax change ending the legal challenge to the ACA is is to restore fines for violating the individual mandate.  However, the individual mandate is unpopular, and the fines could be zeroed out again when the Republicans regained power.

The imposition of fines for violating the individual mandate is not the only way to discourage people from foregoing health insurance or underinsuring and assuring stable state exchange health insurance markets.   For example, the tax code could be modified to reduce standard or itemized tax deductions for people forgoing health insurance coverage.  Congress could expand the premium tax credit used to purchase state exchange health insurance markets for middle-income young adults.  Congress could expand volume of transactions and increase competition in state exchange health insurance markets by creating an incentive for employers to subsidize the purchase of state exchange insurance by employees. Readers interested in some potential tax proposals impacting health insurance markets and this case should consider this other article on Medium.

Another way to protect people with pre-existing conditions, if the Supreme Court rules that the individuals mandate and protections for people with pre-existing conditions are inseverable, involves giving people with pre-existing conditions an affordable public option.  This approach requires a 60-vote majority in the U.S. Senate unless the Democrats eliminate the filibuster.

Wouldn’t the creation of a robust public option be an ironic outcome of a court case seeking to eliminate the entire ACA?

Concluding Remark: The Supreme Court is likely to overturn significant portions of the Affordable Care Act.  However, a future Congress and a future President can overturn this result and create a much better insurance system. The future of the ACA and health insurance more broadly depends on control of the U.S. Senate than on the confirmation of a new Supreme court justice.



Health Care Reform and the Tax Code

Many problems with health insurance markets in the United States are associated with aspects of the tax code.

  • A large tax preference for employer-based insurance often results in discontinuities in insurance coverage during job transitions and periods of unemployment.
  • The preferential treatment of employer-based insurance reduces competition and adversely impacts insurance outcomes in state exchange markets.
  • The reliance on tax preferences for employer-based insurance favors workers at large profitable firms over workers at small less profitable firms.
  • Tax rules prevent low-income workers at firms with an offer of affordable health insurance from claiming the premium tax credit for purchase of health insurance on state exchanges even when the state exchange plan is superior to the employer-based insurance.
  • Middle-income people without offers of employer-based insurance are not eligible for the premium tax credit used to purchase state exchange insurance.
  • Tax incentives favoring the use of high-deductible health plans impose hardships on low-income and middle-income households, create an incentive for some people to forego necessary treatments or prescription drugs and create a tradeoff between saving for retirement and saving for health care.
  • The 2017 Tax Reconciliation bill zeroed out fines for the individual mandate, increasing incentives for people to forego health insurance or underinsure and led to a court case challenging the constitutionality of the entire ACA.

The purpose of this memo is to propose and evaluate tax policy changes, which would reduce imperfections in health insurance markets.

Modify tax preferences for employer subsidies of health insurance to promote the increased use of ACA state exchanges:

The ACA maintained long standing tax preferences provided to employer-based insurance and included rules favoring employer-based coverage over state exchange coverage.  Employer payments for health insurance premiums are deductible to the employer and untaxed to the employee.  Currently, around 11 million Americans obtain health insurance from state exchanges compared to around 157 million who obtain health insurance from their employer.

The continued dominance of employer-based health insurance has resulted in several problems including — discontinuities in insurance coverage during periods of job transitions or during unemployment and a lack of competition and choice in state exchange markets.  A merger of employer-based and state exchange insurance markets by having employers subsidize health insurance purchases for their employees in state exchange markets would benefit participants in both markets.

Employer contributions to state-exchange health insurance would facilitate continuous coverage during job transitions.  A person switching jobs with state exchange insurance would keep the same health insurance plan and would not have to meet a new deductible in order to receive benefits.

A single health insurance market separate from the employer facilitates lower cost continuous coverage for the unemployed.  COBRA allows unemployed people to maintain their current employer-based health insurance; however, the worker is responsible for the entire cost of the health insurance plan plus a 2 percent administration fee.  COBRA is unaffordable to many unemployed workers.  By contrast, unemployed people with state exchange health insurance who experience a reduction in income and a loss of their employer subsidy might automatically become eligible for a premium tax credit that covers part of the cost of state exchange health insurance.

The possibility of keeping an employer-based health insurance plan through COBRA payments is often not possible in a bankruptcy situation.   Employers experiencing a Chapter 11 bankruptcy often eliminate coverage or reduce subsidies.   Chapter 7 bankruptcy generally results in the termination of all employer-based health insurance including COBRA.  By contrast, state exchange health insurance is unaffected by corporate bankruptcy.

The increased ability for the unemployed to retain continuous affordable health insurance coverage would greatly benefit the current economy.  A recent study by the Economic Policy Institute found that around 9.2 million people have lost their health insurance due to the COVID pandemic.

The creation of large statewide health insurance markets serving both people with employer-based subsidy and people with state exchange health insurance will expand health insurance choices for many households.

Currently, most people with an offer of employer-based health insurance will not qualify for premium tax credits on state exchanges and the employer health plan is often insufficient or not affordable for lower-income households. The creation of a single health insurance market allows workers to use employer subsides and also claim the premium tax credit if the worker’s income was low and the employer subsidy was insufficient to cover the entire health insurance premium.

Many employers, especially small firms, only offer a single insurance option.   The proposal presented here would allow all people access to any insurance plan offered on state exchanges.

The plan increases competition and offerings of health plans on state exchanges.  A report by the Kaiser Family Foundation found in 2020 two state exchanges were served by only one insurance company and another fourteen state exchanges had two insurance companies offering products.  Research has revealed that health insurance plans offered on state exchanges often lack access to top hospitals or specialists.  The larger single market would result in more competition, which should improve insurance plan quality and reduce premiums.

Most people who forego health insurance are both healthy and lack subsidies for insurance premiums.  The decision of healthy people to forego health insurance until they become sick increases insurance premiums.   The larger state exchange health insurance market including people with employer subsidies will have a smaller share of people who forego health insurance coverage.

The creation of a larger insurance market where a larger share of people automatically purchase health insurance due to generous employer subsidies will reduce the need for an individual mandate because the small share of people foregoing health insurance will have a relatively small impact on insurance premiums.

Modify the tax code to promote additional employer contributions for small firms and firms with low-income workers:

The current tax code treats employer payments on employee health insurance premiums as a tax-deductible business expense.   The value of this deduction is larger for more profitable companies than less profitable companies.   The current tax code also exempts insurance premiums from taxable income of households creating a benefit that is more valuable to taxpayers with high marginal tax rates.

The expansion of and modification of the small business tax credit could promote additional contributions for employer-based health insurance on state exchanges targeting small firms with low-income households.

The modified program would be available for firms subsidizing insurance for employees on state exchanges rather than firms providing employer-based insurance.   The modified program would be open to all firms where more than half of the employees had a salary less than a certain threshold rather than the average salary of all employees.

The proposal to expand tax benefits associated with health insurance subsidies for smaller firms with low income workers is similar in structure and spirit to a a new Biden 401(k) tax proposal which expands tax breaks for contributions to 401(k) contributions to low-income households.

Make several modifications to rules governing health savings accounts and high-deductible health plans to make these plans less burdensome to low-income households and people with expensive health conditions:

 Health savings accounts coupled with high-deductible health plans passed as part of the 2003 Medicare law are growing in popularity.  The use of high-deductible health plans reduces insurance premiums.   The use of health savings accounts creates pre-tax savings for health expenses.  However, current health savings accounts and high deductible health plans create several problems for low-income and middle-income people including increased out-of-pocket expenses, reduced adherence to prescription drug regimens and a tradeoff between saving for retirement and saving for health care.

Four policy changes, which could mitigate problems associated with increased use of health savings accounts and high deductible plans, are proposed and discussed below.

The first two proposals attempt to mitigate financial hardship imposed on households from increased cost sharing.

  • A tax credit for contributions to health savings account would be established for households with income below a particular threshold.Higher income households would continue to make untaxed contributions to health savings account.   This provision would encourage use of less expensive health plans by lower income households and reduce disparities occurring because of the difference in the value of tax subsidy stemming from differences in marginal tax rates.
  • Rules governing contributions to health savings accounts would be modified to allow contributions to health insurance plans with higher coinsurance rate plans even if their plan had a relatively low deductible.The current laws governing health savings accounts only allow contributions from people with a high deductible health plan even though health plans with a relatively low deductible and high coinsurance rate allow for substantial cost sharing and can provide better outcomes to households than a high deductible plan.

Many low-deductible health plans pay most costs for prescription drugs even prior to the deductible being met.  However, many of the new high-deductible health plans do not pay for any prescription drug treatments prior to the deductible.  The more onerous rules on prescription drug payments by high-deductible health plan have created an incentive for many people to forego or cut short necessary prescriptions.  This incentive is especially large for people with diseases like diabetes where the patient does not have immediate symptoms.  The failure to control chronic health problems can lead to bad health consequences and more expensive health services in the long or medium term.  For example, the failure by diabetics to control blood sugar can lead to kidney problems, eye problems, amputation and heart issues.

Two additional proposals are presented to address potential problems associated with reduced use of prescription medicines stemming from increased use of high-deductible health plans.

  • Regulations governing prescription benefit formulas for high-deductible plans should be modified to require partial payment by insurance firms on prescription drugs for the treatment of chronic diseases prior to the deductible being met. Current law allows high-deductible health plan to make payments for some preventive treatments prior to the deductible being met.It should be possible for Health and Human Services to mandate coverage for some prescriptions treating chronic diseases as a preventive method under current regulations.
  • Congress could establish a fund to directly pay part of the cost of necessary health prescriptions for low-income and middle-income households.The funds for this effort could be obtained through an excess profit tax on pharmaceutical companies.

Both approaches have advantages and disadvantages.  The adoption of a regulation requiring greater insurance payments for prescription drugs would increase insurance premiums.   The creation of a new fund subsidizing insurance payments for prescription drugs would not increase premiums but would have to be enacted through new legislation.

All four of the proposals presented here could make cost sharing between insurance firms and household more palatable to low-income households.  Any proposal that shifts households to a plan that imposes more cost sharing could reduce premiums and tax expenditures for premium subsidies.

Note also, that a new tax credit associated with health savings accounts requires households have a particular form of insurance coverage would also reduce the number of households forgoing health insurance.

Modify the premium tax credit to include some assistance for middle-income households and eliminate the:

The current ACA premium tax credit does not provide any assistance to people with income over 400 percent of the federal poverty line, around $50,000 for a person seeking an individual only health plan.  This abrupt cutoff of benefits creates two problems.

  • People with household income under 400 percent of the federal poverty line often forego health insurance or underinsure.
  • Many people claim an advanced tax credit to pay for their health insurance prior to knowing their actual annual income.People who earn more than 400 percent of the federal poverty line lose access to the entire tax credit and often owe substantial tax payments to the Treasury.

The most effective way to fix both of these problems is to modify the premium tax credit and guarantee a minimum tax subsidy (perhaps $1,000 for an individual and $2,000 for a family).

The minimum tax credit could be given either to all people without access to an employer-based insurance plan or all people in the population.   The former approach would be less expensive to taxpayers but some small firms could decide to forego employer-based subsidies so their employees could claim the premium tax credit.   The later approach by having firms and taxpayers share the cost of premiums would reduce cost to employers.

The proposal presented contrasts sharply with Vice President Biden’s proposal to extend the premium tax credit past 400 percent of the federal poverty line and increase the generosity of the tax credit.  Vice President Biden’s plan does not provide any assistance to many middle-income households. For example, based on calculations obtained from the Kaiser Family Foundation Health Insurance Marketplace Calculator a 30 year old person making $60,000 per year seeking an individual-only health plan would pay $409 per month and receive no support from the premium tax credit. (Figures presented here are based on average U.S. insurance premiums.)

Reduce standard or itemized deductions for people who choose a public health insurance plan over a private health insurance plan:

People who are uninsured and healthy tend to forego health insurance and immediately seek coverage if they become ill or injured.  In order to deter this behavior, the ACA included a financial penalty in the form of a tax fine for people without health coverage.   The individual mandate was resented and opposed by many individuals.  The 2017 tax reconciliation bill zeroed out fines for the individual mandate.  The repeal of fines led to litigation, brought by some state attorney generals, claiming that the entire ACA without the individual mandate was unconstitutional.   The fifth circuit federal appeals court agreed that the ACA is unconstitutional without the individual mandate and this court case is now heading to the Supreme Court.

It is difficult to predict with certainty the outcome of any Supreme Court case.    The court upheld the law in a 5-4 decision in a previous case.   The new more conservative court is more likely to repeal the law.

A 2017 tax reconciliation bill modified the individual mandate and led to the current challenge.  Depending on the outcome of the 2020 election, a 2021 tax reconciliation bill could either restore fines for the individual mandate or create some other financial incentives designed to assure that people maintain continuous health insurance coverage.

One way to create incentives for people to maintain continuous health insurance coverage and to address legal concerns about the constitutionality of the entire ACA is to create a new financial penalty for people choosing to forego health insurance coverage.  The financial incentive could be implemented in the form of the loss of some standard or itemized deduction for people who do not have health insurance and need not be as large as the original fines for violating the individual mandate.

Concluding Remarks on Tax Policy and Health Insurance:

The tax proposals presented here expand the size of state exchange markets, reduce the number of people who forego health insurance coverage, improve the quality of health insurance coverage, and obviate the need for an onerous individual mandate.  The passage of these tax reforms would address legal concerns stemming from the litigation following the passage of the 2017 tax reconciliation bill.



Timing of Drug Purchases and Out-of-Pocket Costs for HDHPs

Timing of Drug Purchases and Out-of-Pocket Costs for HDHPs

Background:  A lot of analysts advocate high deductible health plans (HDHPs) for two reason — low premiums and access to tax deductible savings accounts.  These advantages are real.

Less attention has been spent on differences between how HDPPs and standard plans differ in their reimbursement of prescription medicine.  Most standard deductible health plans with low deductibles pay a share of prescription drug costs prior to the deductible even being met.   By contrast, most high-deductible health plans do not reimburse any health care costs until the entire deductible is met.

Moreover, many insurance companies that sponsor both standard and high-deductible health plans have less generous benefits for certain drugs under the high-deductible health plan.

Drugs can be very expensive especially when a generic alternative does not exist. The prices of some commonly used drugs presented below was obtained from a major reputable insurer which offered both a standard deductible and HDHP.

Prices of Some Drugs
Atorvastatin $30
Cialis $923
Trulicity $1,994
Metopropol $3.60
Welchol $1,753
Janumet $1,177
Jardiance $1,273

Prices are for 90-day supplies.

This insurer typically  required consumers to pay around 25 percent of the cost of the non-generic drug.   However, I noted that the insurer paid 25 percent of the cost for a 90-day supply of Cialis 5-mg daily use under the standard plan and 0 percent under the HDHP.

Most consumers evaluate insurance plans based on broad reimbursement levers, deductibles, out-of-pocket expense limits, and coinsurance rates.   However, increasingly narrow policy rules including the reimbursement rate for a drug or whether a procedure is medically necessary can have a large impact on out-of-pocket costs and financial exposure.

There is another complexity associated with the use of high-deductible health plans and reimbursement for prescription drugs.   The complexity is the result of the higher coinsurance rate for prescription drugs than for most hospital services.   In some plans the coinsurance rate (the share paid by the customer) is 25 percent for prescription drugs and only 5 percent for hospital visits.    This feature combined with rules governing deductibles can result in the timing of medical services impacting the total amount paid by the customer.

A person who pays $X for a car and $Y for a vacation will pay a total of $X +$Y for both items regardless of when the purchases occur.   However, the amount of out-of-pocket expenses incurred by a person purchasing prescription drugs and a visit to the ER or a hospital can vary quite a bit depending upon when the purchases occur.

The purpose of this post is to show that the timing of drug purchases and visits to the hospital can have a nontrivial impact on out-of-pocket health costs when reimbursement is guided by the rules of a high-deductible health plan with a high coinsurance rate for drugs and a low coinsurance rate for hospital stays.


Let’s illustrate the timing effect with a couple of simple examples.

Situation One:   An individual-only health insurance policy has a $1,500 deductible and a catastrophic limit of $5,000.   The plan has a 5 percent coinsurance rate on hospital visits and a 25 percent coinsurance rate on prescription drug purchases.

How much does a person insured by this plan pay if she purchases $1,500 of prescription drugs prior to December 2018 and then has a $1,500 ER visit in the middle of December?

How much does a person insured by this plan pay if she has a $,1500 ER visit in early January 2018 followed by $1,500 in purchases of prescription drugs though out the year?

Assessment of Situation One:

The person who starts off the year with prescription drug expenses pays $1,500 on the prescription drugs and $175 (0.05 x $1,500) for the ER visit.

The person who starts off the year with an ER visit will pay $1,500 for the visit to the ER and $375 (0.25*$1,500) for the drugs.

The difference is around 19 percent of the lower amount.

The lesson here is that you should consider scheduling your ER visits for early in the year.   (Just kidding.  It is obviously very hard to schedule your ER visit.)

Situation Two:   A family has household coverage with $5,000 deductible.   The catastrophic limit on the plan is $13,500.    The family incurs two types of expenses during the year — $5,000 of drug costs and a $20,000 operation.

How much does the person who starts off the year with prescription drug expenses and ends with the operation pay in total out-of-pocket expenses?

How much does the person who starts off the year with the operation and ends with prescription drugs pay in total out-of-pocket expenses?

Assessment of Situation Two:

The person purchasing drugs prior to the operation pays $5,000 out-of-pocket for drugs and $1,000 for (0.05*$20,000) for the operation.

The person with the early operation pays $5,750 for the operation ($5,000+0.05*$15,000) and $1,250 (0.25*$5,000) for the drugs for a total of $7,000.   The difference as a percent of the smaller amount rounds to 16.7 percent.

A Note:   The two examples presented here result in the person who has the major-medical event later in the year incur more expenses than the person who starts the year with a major- medical event.   This is not always the case when the major-medical event is very large.   I hope to address this post in a separate post.

 Implications: I am the first to acknowledge that disparities resulting from timing of drug purchases under a HDHP are not the largest factor impacting health insurance markets.  As many have noted crappy insurance beats no insurance every single time.

However, the issue raised here is non-trivial for a few reasons.  First, a few hundred dollars or a thousand dollars is a non-trivial amount for a household struggling with student debt or just generally living pay check to pay check.   Second, the lack of transparency on this issue reduces the credibility of the insurance industry and the economists and financial advisors who work for it.   Third, based on the calculations demonstrated here some people may underutilize pharmaceutical drugs and/or delay needed medical services.   Fourth, based on the findings presented here policymakers should consider changing the rules governing eligibility for health savings accounts.

Other readings on advantages of different plan types can be found here.

 Health Insurance Math – Problem One

High Deductibles Versus High Out-of-Pocket Limits

Health Plan Comparisons:

My sense from these papers is that lower deductible plans with high catastrophic limits and higher coinsurance rates would benefit both the industry and the consumer.    The decision to only provide tax preferences for holders of high deductibles was a very bad one.

I would be happy to write the definitive study on this topic but funding and data are both needed.

Thoughts on the Health Care Reform Process

Thoughts on the Health Care Reform Process

David Bernstein

Republicans argue that the ACA has failed and want to repeal it and replace it with something different; although, there is little agreement among Republicans on what plan should replace the ACA.  Most Democrats appear to deny or minimize the existence of problems with the ACA.   Some sort of government option appears to be the only major ACA reform supported by Democrats.

My view of the situation is that while the Ryan plan would have left many Americans worse off it is possible to devise a plan that substantially improves upon the ACA.   The objective of this memo is to outline changes to the ACA that would reduce premiums and improve quality of health plans sold through the state exchanges created under the ACA.

This memo concentrates on four issues  — (1) the relative importance of employer-based insurance and state exchanges,   (2) rules and incentives concerning the impact of age on premiums and coverage on state exchanges,  (3) rules governing use of health savings accounts and high-deductible health plans, and (4) the treatment of extremely expensive catastrophic health care cases.


Issue One — Relative Importance of Employer-Based Insurance and State Exchanges:  Currently state exchanges are much smaller than the employer-based market.  There exists some evidence indicating that people who obtain their health insurance through state exchanges are less healthy than people with employer-based insurance.  Most people with employer-based insurance are better off than people with state exchange insurance because employers often pay a substantial share of premiums.  Policy makers need to consider subsidies and rules that encourage the growth of state-exchange marketplaces without making workers and families currently covered by employer-based insurance worse off.

Discussion:   Under current ACA rules, employers with more the 50 employees are required to offer health insurance to their employees or pay a fine.    The tax credit for people getting insurance on state exchanges is only available for people with household income less than 400 percent of the FPL.    The tax credit has led to some small firms dropping offers of employer-based insurance.  However, most working-age people and their dependents continue to obtain health insurance through their employer.

The Health Care plan offered by Paul Ryan and ultimately rejected by the Freedom caucus would have eliminated the employer mandate for large firms and would have expanded tax credits for the purchase of state exchange health insurance to people with income over 400 percent FPL.   These changes would have induced many firms to eliminate their offer of health insurance to their employees.

One could argue that health insurance should not be tied to employment and that independent state exchanges reduce burdens on businesses and expand state mobility.   Moreover, the expansion of state exchanges is needed to make these new markets financially viable.

However, employer-based insurance is financially attractive to many employees.   Employers typically pay 70 percent of the premiums on employer-based plans.   The employer contribution is not subject to income or Social Security tax.   The workers who lose employer coverage under the Ryan plan would become worse off financially.  Under the Ryan plan, many people currently obtaining health insurance through their employer would lose offers of employer-based coverage and some of these individuals would find coverage through state exchanges to be inadequate or unaffordable.

There is a need for financial and economic incentives that reduce employer-based insurance and increase the role of state exchange insurance.   However, it is important that this reform not make workers who currently have employer-based coverage worse off.

Suggestions:   There are several potential policies that might expand state exchanges and reduce the role of employer-based insurance.


  • Employers should be allowed to contribute for the purchase of health insurance on state exchanges.   These contributions would be an expense for the business but would not be taxable income to the employee. These tax-favored contributions would replace the tax preference resulting from employer-based insurance.


  • Subsidies for the purchase of health insurance on state exchanges would also be given to federal, state and city employees and retirees, people on COBRA plans and people on Trade Adjustment Assistance TAA plans.


  • Employees at small firms that do not contribute to health insurance on state exchanges would be eligible for a tax credit.    The tax credit could be equal to the minimum or average contribution required by large employers.


Note One:  The tax credit proposed here is likely to be lower than current tax credits and the one proposed under the Ryan plan because of other subsidies and features of the plan.  First, the tax credit proposed here will be linked to the cost of a plan with high cost sharing, as described in issue three rather than the current silver plan.  Second, the proposal detailed in issue four for a government funded catastrophic health insurance plan also reduces premiums and the required subsidy.

Note Two: I am concerned that the availability of a tax credit could induce some firms to choose to not contribute funds for the purchase of health insurance on state exchanges.   Whether this is an actual problem depends on the design of the tax credit and the rules governing contributions from the employer.   I need to think about this issue a bit more.

Concluding thought on the need to increase size of state-exchange markets:  If the suggestions presented here were enacted, all working-age people not on Medicaid or government insurance would purchase their health insurance through state exchanges.   The mandate for an employer contribution would be needed in order to limit costs associated with the tax credit.  However, in my view the mandated employer contribution is less burdensome than pure employment-based health insurance.

Issue Two: There are too few young adults enrolled in state exchanges.    Policy makers need to create incentives for increasing the number of young adults who obtain their health insurance through state exchanges.

Discussion:   There are two reasons for the shortage of young people insured through state exchanges.    One involves a stipulation of the ACA requiring insurance companies to keep young adults on their parent’s policy up to including age 26.   The other involves the allowable age-rating ratios under the ACA.

The ACA rule keeping young adults on their parent’s policy up to the age of 26 is one of the most popular provisions of the ACA.  It has resulted in a substantial decrease in the number of young adults who lack health insurance.    Most parents of young adults get their health insurance from their employer.   As a result, most young adults also get their parent’s employer-based insurance policy rather than through state exchanges.

The ACA requires that insurance premiums be based on the age of the insured individual.    The maximum allowable ratio of premiums old people to young people allowed under the law is 3 to 1.    The Ryan plan increased the ratio to 5 to 1.   A 5 to 1 ratio would leave insurance unaffordable to low-income older households.  A 3 to 1 ratio is unfair to young adults. The issue of changes in the allowable age-rated premium ratio is in many respects a zero-sum game

Suggested Changes: A first step towards increasing the number of young adults with health insurance through state exchanges would involve changing the age-rated premium ratio.   I am recommending a modest initial change from the current ratio of 3 to 1 to a new ratio of 3.5 to 1.

Research has shown that a low old to young age premium ratio is especially problematic when the deductible on health plans is very high.  The paper linked below (which I authored) found that more than 80 percent of people between the age of 23 and 32 with a high-deductible health plan receive less than $500 in payouts from their health plan.

Intergenerational Transfers and Insurance Policy Designs

This observation suggests that the issue of premium regulations is linked to the issue of the type of health care plan offered in the market.   Issue three below discusses questions involving differences in cost sharing arrangements.

There appears to be little support for changing the provision of the ACA that allows young adults to remain on their parents health plan because this change in health care law is responsible for a dramatic increase in the number of young adults with insurance coverage.   However, there may be some policy changes that could induce some young adults to move off their parent’s policy into one obtained in state exchanges.

It might be appropriate to apply a modest annual fee for young adults who remain on their parent’s policy.   Funds from this fee could be used to subsidize out-of-pocket expenses for low-income people covered by high cost-sharing plans.

Alternatively, it may be appropriate to give people who turn 24 an extra $2,000 tax credit for a health savings account contribution if and only if they obtain a health plan from state exchanges.

Issue Three: The combination of high-deductible health plans and health savings accounts are unsuitable for many young households with high debt, limited income, and low levels of liquid assets.  Alternative cost sharing arrangements should be considered.

Discussion:   There are two main advantages of high-deductible health plans.  First,

High-deductible health plans result in a substantial reduction in health insurance premiums.   The reduction in health insurance premiums stems from the fact that the insurance company makes no payouts, except for some preventive services, until after the deductible is met.   Second, as long as the total health expenditures remain under the deductible the insured individual has a strong incentive to economize on health expenditures.

Most of the academic literature on the benefits of high-deductible health plans and health savings accounts involves a discussion of the extent to which these plans reduce the utilization of health services.

The following study by a group of economist found that the use of high deductible health plans reduced spending on out-patient care and on pharmaceuticals.   There was no evidence of increased use of in-patient services or emergency room services.

NBER study on impact of high-deductible health plans on utilization of health services.

There is also substantial concern that high-deductible health plans can cause people to forego needed procedures and not purchase needed medicines.

There are several potential problems and unresolved issues with the expanded use of high-deductible health plans.

First, the people who benefit the most from health savings accounts are high-income individuals with higher marginal tax rates.  Some conservatives including Rand Paul have argued that all people should be allowed to contribute to a health savings account regardless of the type of health insurance plan they use.    Conservatives also tend to want higher limits on the amount that people are allowed to contribute to health savings accounts.    This approach provides larger subsidies to people who already have comprehensive coverage.

Second, some households will only be able to fund health savings accounts by reducing contributions to their 401(k) plans. This change has little or no impact on savings and wealth accumulation.  It is similar to rearranging the deck chairs on the Titanic.

Third, as noted in my article intergenerational Transfers and Insurance Policy Design an estimated 80 percent of young adults will receive less than $500 in benefits from health savings accounts.  The low potential payout for most young healthy adults will result in many young adults foregoing health insurance if a high deductible plan is the only affordable option.

Fourth, higher deductible health plans would be more effective to lower-income households if they were coupled with subsidies for out-of-pocket expenses.   The ACA does provide subsidies for out-of-pocket expenses for low-income households.   Congress did not appropriate funds specifically for this subsidy.   The Obama Administration reallocated funds for this program but House Republicans initiated a legal challenge to this subsidy.   Courts are still considering this issue.

Fifth, increased cost sharing creates an incentive to forego needed procedures and/or to not take certain medicines.   These decisions could have adverse health consequences.

Suggested Changes:  Two suggested changes to the rules governing health savings accounts and high-deductible health plans should be considered.

First, low-income holders of qualified high-cost sharing plans should be given subsidies for some out-of-pocket expenses.  It may be desirable to end the litigation on out-of-pocket subsidies by agreeing to fund subsidies only for people with high-deductible or high cost-sharing health plans.

Second, policymakers should allow people with a high coinsurance rate plan to contribute to a health savings account even if the plan has a modest deductible.

The low-deductible health plan with a high coinsurance rate may actually have a higher impact on health care utilization than a high deductible health plan.   Consider two plans both with a $7,350 out-of-pocket limit.   The first plan has a $7,350 deductible and no cost sharing once the deductible is met.   The second plan has a $0 deductible and a 50 percent coinsurance rate until the $7,350 maximum allowable out-of-pocket limit is met.  Under the first health plan there is not more cost sharing once total health expenditures reach $7,350.   Under the second health plan cost sharing will continue until total health expenses reaches $14,700.

I suspect that wealth accumulated in a health savings account linked to a high cost-sharing plan will be higher than wealth accumulated in a health savings account linked to a high-deductible plan.   (I believe I could provide evidence supporting this hypothesis using MEPS data and a simple simulation model.)

Issue Four: Around 5 percent of the United States Population accounts for roughly half of health care spending in the United States.

AHRQ Statistical Brief  497: Concentration of Health Expenditures in the U.S. Civilian Noninstitutionalized Population, 2014

The share of health care expenditures in a relatively few expensive patients is even higher for children and the working-age population

Health care expenditures across age groups:

The government could provide catastrophic health care coverage for all expenditures or a proportion of expenditures above a specific limit.  A universal catastrophic health insurance plan would reduce premiums on private insurance.

Discussion:   Prior to the ACA many health insurance plans had annual or lifetime limits.   Often people with health expenditures that exceeded the limits on the health care plans were unable to obtain additional health services.  The recently withdrawn Ryan health care plan retained the ACA prohibitions on caps on health care expenditures.

A new Freedom caucus version of an ACA repeal bill may very well allow insurance companies to impose annual or lifetime caps on expenditures.   This bill is also likely to include high-risk pools that could cover some people denied coverage because of the expenditure caps.   Past versions of high-risk pools had limited funds and covered only a small share of the uninsured.

The ACA included a limited reinsurance option that was designed to reduce incentives for insurance companies to avoid high-risk options.  This option was stopped when Republicans refused to fund the program.   Some states including Minnesota have thought about including a reinsurance procedure in their state exchanges.

Suggested Changes:  Create a program where the government will pay or all part of catastrophic health expenses above a certain limit.  For example the new government funded catastrophic health plan might pay for 80 percent of all health care expenses over $60,000 per year.  The individuals would continue to pay for all out-of-pocket expanses.   The private insurance company would no longer have to pay for expenses covered by the new catastrophic health plan.

Note One:  The new government funded reinsurance plan reduces premiums drastically for the new standard plan.   The higher deductibles or cost sharing also reduces premiums.  The lower premium allows the government to substantially reduce tax credits helping lower-income households afford premiums.   The cost of the reinsurance subsidy may be partially or even entirely offset by reductions in the tax subsidy depending on the details of the reinsurance program and the details of the new tax subsidy.

Note Two:  A replacement to the ACA that allows for insurance companies to impose caps on expenditures would lead to the death of some people once caps are reached.   It appears hard to fix this problem without some sort of government program.

Note Three:  One way to create a universal catastrophic health plan is to allow for automatic eligibility into Medicaid or Medicare for people with health expenditures that exceed a cap.   A second way might involve government purchasing a private catastrophic health plan with some private insurance company or consortium.   (This would be one huge contract.)

Note Four:  A universal catastrophic health plan would have a large impact on premiums and the reinsurer would only need to make payouts to a relatively few individuals.   I need to update my work on reinsurance, which was conducted prior to the passage of the ACA.

Geneva Paper on Reinsurance and Health Insurance in the United States:

Concluding Remarks:

Here is the current situation.   The ACA has non-trivial flaws that need to be fixed.   The Republicans have done and continue to do everything they can to make sure the ACA fails. The Ryan bill would have led to the unraveling of employer-based health insurance and many people currently covered by employer-based polices or receiving tax credits on state exchanges would have been unable to afford health insurance under Ryan’s proposal.  The only Democratic plans put forward involve government options or single-payer plans, proposals that are not viable in the current political environment.   The Freedom caucus opposes any plan with a new entitlement even if the plan actually reduces the role of government in the health care system

Many of the recommendations discussed in this essay including the expansion of state exchanges, modification of age-rated premium formula, and changes rules governing health savings accounts are based on conservative principles.    The plan that I am outlining here  also contains a very large new government entitlement – universal catastrophic coverage for all U.S. citizens.   The new entitlement allows insurance companies to cap health annual expenditures.  This provision reduces premiums on private insurance and tax subsidies.

It is hard to see how issues related to the most expensive health care cases can be mitigated without some government involvement.   Even though this proposal contains a new entitlement this proposal should reduce total government involvement in the health care sector.  It is my hope a bipartisan group of Senators and Representatives will get behind a specific plan based on this analysis.








Marian Hagler’s Health Care Plan

Marian Hagler, my wife, wrote this health care plan. Marian is an attorney who has worked on international transactions, energy, and start-ups.

Here is her proposal to reform our health care system.

Overview. I became inspired to put together a health care plan after listening to many critiques of ObamaCare coming without concrete proposals for improvement or replacement. I encourage others to go through this exercise. I have a new appreciation for the difficulty in finding something that works and incentivizes stakeholders in a positive way. I can now also read proposals for change with greater insight as to why they are good, even if imperfect, and whether there is a better option.

The following proposal is designed to simplify and improve the existing system, and hit all Republican and Democrat “must haves” (repeal/replace/improve ObamaCare, minimize government involvement and leverage the private sector, reduce premiums, keep increasing the number of people covered, maintain pre-existing conditions coverage, maintain coverage for persons 26 and under, reduce employer admin costs, incentivize people to buy affordable private insurance, guarantee equal rates for men and women, allow people to keep their doctors, and reduce prices of prescription drugs). In addition, it addresses other key problems..

The core of the proposal is to guarantee everyone at least some minimum of free medical insurance that covers them if their medical expenses reach a catastrophic level (“MajorCare”) and give 100% insurance to children (“YouthCare”). Taken together, the proposal essentially provides a safety net for retirees (by keeping Medicare), children and young adults (through YouthCare), the poor (by keeping Medicaid), and for major medical (by introducing MajorCare). It also turns over to broader private competitive market all plans supplemental to these (Private Supplemental Policies or “PSPs”), without the employer necessarily being in the middle and without state barriers.

How we pay for the plan and reduce drug prices is discussed last.

Disclaimer: I have no dog in this hunt other than to see us advance down a path towards a better system. If I have a tilt, it comes from the fact that I am a mother, a lawyer and a Democrat, but I am not a medical professional, nor do I work for a health insurance company, or pharmaceutical company, nor do I own such a company (unless a share or two is buried somewhere in my investment portfolio), although one of my clients is a medical device company. I am not on Medicare or Medicaid. Our family has private group health care insurance that is affordable for us. My sister is on ObamaCare and my parents are on Medicare.

I also work with a number of very inspiring entrepreneurs who sometimes walk the line between ObamaCare and Medicaid. Finally, my husband is a health care economist and has encouraged and helped me think through some of the issues here, together with my 13-year-old son.

Here is the proposal.

I. Medicare is maintained. This keeps retirees out of the private risk pool, which will keep premium and costs down for everyone else. This also keeps a political promise to “not touch Medicare”. We can think about whether to take the opportunity to tweak Medicare to improve it. Private Medicare supplements would still be available.

II. Medicaid is maintained. This keeps the poor covered and keeps them out of the private risk pool, which will keep private PSP premiums down for everyone else. A few key tweaks here: (1) Eliminate the month-to-month review, which is too frequent. Change to every six months. While this may lead to some temporary over coverage, there will be savings from reduced bureaucracy and reduced structural costs from people rolling on and off Medicaid. (2) We get everyone who is 26 and under off of Medicaid. They will be covered by YouthCare. This will help improve the health of the next generations, which should save costs down the road. (3) Develop incentives for the States to improve Medicaid. (4) Find ways to eliminate the problem of doctors who refuse to take Medicaid patients (or cap the number of Medicaid patients), so people can keep their same doctor as they roll on and off of Medicaid.

III. MajorCare and YouthCare are created as private insurance programs, with the premiums being paid by the US Government (USG):

A. General. MajorCare is a high-deductible policy designed to cover catastrophic/major medical expenses for everyone over 26 who is not covered by Medicaid or Medicare. YouthCare is a policy for anyone 26 and under, including children (because there is no income test, CHIP children would now be covered by YouthCare along with everyone else). Together, these policies ensure that the 20 million people picked up by ObamaCare will still have some minimum of health insurance at an affordable price (FREE), and we increase this 20 million dramatically by covering EVERYONE.

Also, with MajorCare in place, private policies won’t need to cover high, catastrophic costs, and this should lower significantly premiums paid under private policies. Further, unlike ObamaCare, no one would be required to sign up for MajorCare or YouthCare via a government website that does not work well or be limited by what is offered in their state. At its heart, MajorCare gives everyone peace of mind that they won’t be totally wiped out by medical expenses or incur high premiums because their private insurance company is covering catastrophic risk, and YouthCare ensures all of our children are covered (without the complications of Medicaid), and gets children and young adults in the good habit of going to see the doctor regularly. YouthCare picks up the ObamaCare coverage for people 26 and under and takes it a step further – young adults, and all our precious children, are fully covered, independent of Medicaid/CHIP or their parents’ insurance (or lack) and the limits of their parents’ policies.

B. Objectives. MajorCare and YouthCare should appeal to Republicans, Democrats and Independents. They follow the principle that a minimum amount of health care is a human right (regardless of income level) and our future depends on making children a priority. Importantly as well, these policies are provided and managed by the private sector with minimal USG involvement. USG negotiates the private insurer contract and pays the premiums. Since USG is paying the premiums, there is no higher premium charged to women or for pre-existing conditions and, so, this ObamaCare protection is maintained and even improved.

C. USG Contract Negotiation. The private MajorCare and YouthCare insurers would be selected by the USG in a negotiated process designed to yield USG an optimal policy and premium price. Here, we can take advantage of the Trump Administration’s skills in negotiating private sector contracts and ensure that MajorCare and YouthCare contracts are structured in a way that meets program goals and works within the private sector health insurance industry that will manage them. Also, retirees and non-youth poor, as well as everyday medical care for all non-youth, are all out of the risk pool. So, this lowers the premiums cost to USG. Also, these programs eliminate the problem of people electing to pay the ObamaCare tax penalty and then signing up for ObamaCare once they are really sick. Eliminating this problem helps to stabilize the risk pool, further optimizing the cost to USG.

The winning insurance company may team/reinsure so they can spread the risk/reward with other private insurance companies, so long as they don’t collude in the bidding process. If the YouthCare and MajorCare contracts are too big for a single winner, they may be divided into a series of regional contracts, so that a 25-year old who enters a hospital in Region A would be covered automatically by YouthCare in Region A. A 27-year-old resident in Region B would sign up for Region B MajorCare.

D. Required Bid Terms. Required bid terms for YouthCare and MajorCare would include: (1) pre-existing condition coverage (thus, keeping a key ObamaCare promise and making sure those who need it most are covered), (2) a max deductible ($0 for YouthCare and, say, $15,000 per year for MajorCare), (3) the costs that count towards the MajorCare deductible would include the usual medical expenses, as well as premiums and insured expenses paid by PSPs (see below) and perhaps even discretionary costs (vitamins, gym and sport fees, massages, discretionary therapies, etc.) as part of a “Make America Healthy Again” initiative, (4) seamless transitions between MajorCare/Youth Care and Medicare/Medicaid, so no one falls in a crack (in other words, MajorCare/YouthCare automatically picks up someone who is not on Medicaid/Medicare and, vice-versa, MajorCare/YouthCare continue to cover someone until their Medicaid/Medicare coverage actually commences, (5) MajorCare and YouthCare include prescription drugs and dental/orthodontia (and such expenses would count towards the MajorCare deductible), and (7) financial condition covenants on the winners and a USG guarantee, in case of insolvency/failure as well as other unusual events (epidemics, etc.) paid for by a reinsurance fee (the scope of the guarantee and amount of the fee to be bid by the private insurer) paid to the USG (and perhaps netted from the premium). USG premium payments would be biweekly or monthly (same as premiums currently paid by employers) to minimize exposure and misuse. How the premiums could be invested, and length of contracts would also be negotiated. There are clear risk trade-offs with longer contracts and investment freedom, versus the cost of the reinsurance/ guarantee.

E. Economic Experts. Health care economists can help USG and insurance companies determine the optimal levels (bang for the buck) for: (1) the MajorCare deductible (recognizing the inverse relationship between deductible level and premium cost), (2) the age for transition from YouthCare to MajorCare/Medicaid, (3) contract term, investment freedom and the USG guarantee/reinsurance fee. For example, data suggests that a $15,000 deductible for MajorCare will alleviate higher costs for only 7% of the population but this will absorb about 80% of all working age medical costs nationwide, which should thus reduce individual PSP premiums for individuals dramatically. YouthCare would cover the approximately $275 billion in annual medical expenses, and MajorCare (assuming a $15,000 deductible) would cover about $595 billion in annual medical costs.

The numbers on use and share of expenditures on expensive health care cases are from the 2014 MEPS survey. Some additional work on this topic can be found here.

IV. Private Supplemental Policies (“PSPs”): To eliminate the gaps in coverage from Medicare, Medicaid, MajorCare and YouthCare, PSPs will be offered in the open private market place, and not through employers or state limited exchanges.

A. Premium Affordability. PSPs should be more affordable than ObamaCare because while they contain the same restrictions (preexisting conditions, same rates for men/women), they exclude catastrophic costs, and all young people (who are covered by YouthCare). In addition, state exchanges and other barriers to national competition would be eliminated, something that has caused frustration due to limited choice. This also was a change that was proposed by Trump during the campaign. The vision is that access, information and competition would also be fostered by private brokers that allow people to compare policies meeting their criteria (similar to LendingTree and QuickenLoan for mortgages).

B. No Mandate. One of the most unpopular aspects of ObamaCare is the tax penalty, which was viewed as a necessity to ensure that healthy people join the risk pools. Under this proposal, because everyone is covered by MajorCare and YouthCare, this mandate can be eliminated and people would also be free to choose not to sign up for a PSP. To cover non-MajorCare/YouthCare costs, they can choose to rely on their own savings (see below re Health Cash) and, if they are healthy, the low probability that they will have unaffordable medical bills. My hope is that by offering everyone MajorCare and YouthCare, there is universal coverage and those risks pools are optimized (both sick and healthy are in) and therefore the adverse economic and societal effects from some (largely healthy) people choosing to not buy PSPs until they are really sick will be far less dramatic and, so, unlike the ObamaCare structure, there is less reason to force them to do so. This also eliminates a costly, economic inefficiency that arises from forcing people to buy plans that they just don’t want or feel they need. Individual discretion will also encourage insurance companies to offer healthy people attractive policies, by offering plans that are properly scoped and affordable.

C. Regulation. USG regulation of the private PSP market would be limited to (1) eliminating state barriers to competition, (2) requiring that pricing and coverage be blind to gender and pre-existing conditions (thus keeping two important ObamaCare benefits), and (3) creating incentives for purchasing PSPs (discussed next). Re pre-existing conditions and gender neutrality, insurers would be required to offer a premium pricing before they know the applicant’s identity (much like what is done now based on standardized pricing matrices depending on plan level and other factors). The cost to PSP insurance companies of covering pre-existing conditions and, as a result, premiums should be significantly reduced, because catastrophic costs are excluded and covered by MajorCare and children are covered by YouthCare.

Other means of regulating premiums in the PSP market would be considered and debated. The important point is that the existence of universal catastrophic coverage will reduce the incentive for insurance companies to cherry pick healthy customers.

D. Incentives.To help and incentivize people to buy PSPs, and stay with the same PSP (and doctors) if they change jobs, a few new rule changes would be introduced:

1) Low-income families would receive a tax credit equal to a certain percentage of the PSP premiums they pay for.

2) Employers would no longer be required to offer group plans and, instead, all individuals could reduce their taxable income by placing funds (“Health Cash”) into special accounts (“Health Care Accounts” or “HCAs”) maintained at a bank or other financial institution in the same way as current Flexible Savings Accounts (FSAs) and Health Savings Accounts (HSAs). Health Cash would reduce employer costs by eliminating the admin and other costs associated with maintaining mandatory group health plans. So, for example, say an employee is offered $90k today plus a health plan. The employer is paying part of the group health plan premiums and has admin costs relating to managing the group plan. The employee pays taxes on the $90k, including the amount he is paying for his share of the health plan (usually) and out-of-pocket medical and health-related expenses. With Health Cash, the employer can save an amount equal to its cost of old group health plan and the employee can reduce his income tax by reserving some of his income as Health Cash.

3) So that this proposal does unnecessarily disrupt the status quo, employers would still be free to organize and arrange group plans and supplement the cost by giving employees Health Cash as part of their compensation/benefits packages. This way, a large employer could still use its collective bargaining power to achieve premium discounts for its employees from PSP providers. The only changes would be that (1) group plans are no longer mandatory for any employer, (2) premiums would not fluctuate depending on how sick or well the group is (this cost/benefit is spread to the entire PSP pool), and (3) COBRA bureaucracy is eliminated and PSP contracts are individualized, so that individuals can keep their insurance (and doctors) if they lose or change their job.

4) Because contributions to HCAs are tax free, there is no longer a need for a limited deductibility of medical expenses, so this tax rule can be eliminated. This rule was not that useful for a great many families because of the high threshold.

5) The kinds of medical expenses could be paid from an HCA could be expanded to be the same as those that count towards the MajorCare deductible (medical expenses as well as health related expenses), as part of the “Make America Healthy Again” initiative. PSP premiums, for example, would be both payable from an HCA and count towards the MajorCare deductible, as well as gym/sport fees.

6) Unlike HSAs and FSAs, HCAs would never expire and anyone can have them. Importantly, these accounts could be passed on as part of an estate (although like the rest of the estate, an estate tax may apply), and they would be exempt from personal bankruptcy and not count as assets for purposes of Medicaid eligibility. These accounts would solve a few problems: (a) no more use-it-or-lose-it principle forcing people to guess how sick they will be in a calendar year, (b) we uncomplicate the administration of FSAs and HSAs by having one type of account with fewer rules/restrictions, and (c) by encouraging people to shelter and pass on cash in HCA lock-boxes, we build access to, and the affordability of, health care for current and future generations.

7) Contributions to HCAs (either by employer Health Cash or personal contributions) could have no cap or, if needed to control the fiscal hits to USG budgets, they could be subject to an annual cap to encourage good, regular savings habits. This is a point currently being reviewed and debated for HSAs.

8) Finally, people could use HCAs to pay themselves back for PSP premiums and medical costs not paid out of their HCA (e.g., because they did not have an HCA set up at the time or their HCA was depleted). Some cap or carry-forward time limit may need to apply here.

V. How to Pay For It. The cost of the plan needs to be evaluated in terms of how much more it will cost than current outlays under Medicaid, Medicare and ObamaCare, including the premiums to be paid by USG for the MajorCare and YouthCare plans, and the estimated fiscal losses from taxable income being diverted into HCAs, and where the new plan saves USG money (e.g., reducing internal USG admin costs, moving children out of Medicaid CHIP).

Ways to cover the added cost or reduce the cost:

A) negotiate prescription drug prices that will be paid by Medicaid, Medicare, YouthCare, and MajorCare. Reduced drug prices should help reduce costs of Medicaid and Medicare and reduce the premiums charged to USG for YouthCare and MajorCare. However, we need a way to prevent the drug companies from simply transferring the costs of this cap onto consumers who pay for drugs directly or through their PSP premiums.

B) include in the bid requirements for the YouthCare and MajorCare contracts, a requirement that the insurance company remit to USG 50% of any excess profits they make on the contracts. This may also reduce the incentive they have to improve profits by denying or fighting coverage. (Penalties in the contract for bad faith and private rights of action should also be added.)

C) reduce some of the employer tax savings on Health Cash. We still want employers to be incentivized to give Health Cash in lieu of wage income, but we may need to limit the tax savings. For example, FICA and Medicare taxes and may still need to apply to Health Cash payments, avoid fiscal hits to Social Security and Medicare.

D) float from MajorCare and YouthCare reinsurance fee: a current budget receipt v a long term contingent obligation. Note that this fee could be netted directly to reduce the USG premium outlay.

E) it might be possible to reduce USG premiums further and help pay for the plan through the sale of securities backed by the premium contracts for PSPs, YouthCare and MajorCare, which USG would purchase and, in the case of PSPs, guarantee. This would work much like Freddie Mac, Fannie Mae or SLABs (student loan asset backed securities). More analysis is needed to see if this would work and how much savings/leverage USG could achieve.

F) caps on tax deductions for HCA contributions, as discussed above

G) raising the MajorCare deductible to reduce the USG premium outlay, as discussed (we need to be careful here not to narrow the benefit too much)

H) develop incentives on health care industry and insurance companies to reduce costs without sacrificing quality or denying coverage.

I) other taxes


A bi-partisan way to fix the ACA

A bi-partisan way to fix to the ACA

Background:   Current ACA state exchange market places are small, have relatively few young adults, and have a disproportionately large number of people with poor health status and lower income than the market for employer-based insurance.   As a result, many insurance firms eschew state exchange markets. Increasing the size of state exchange market places is a necessary condition to stabilizing these markets.

The most cost efficient way to cover people who cannot afford comprehensive health insurance is through a partnership between private insurance companies and a government fund covering health expenses over a certain threshold.   The private-public insurance partnership is Pareto superior to the high-risk pools proposed under Republican plans.

The plan presented here includes changes in rules and tax incentives that will allow and encourage more people to obtain health insurance through state exchanges and will provide an economical private-public health insurance option for all people that cannot afford a private health insurance plan and do not qualify for Medicaid.

Proposed Policy Changes:

  • Abolish the current employer mandate, which requires firms with more than 50 full time employees to offer employer-based insurance.
  • Replace the current employer mandate with a rule requiring employers with more than 50 full time employees contribute at least 60 percent of the cost of a gold plan on state exchanges for all employees. This new mandate would also require some contribution for part-time employees.
  • Create a tax credit roughly equivalent to the above employer contribution for people who do not receive premium contributions from their employer.
  • Require all federal, state, and local government employees to purchase their health insurance through state exchanges. The contribution level would be at least 60 percent of the cost of the gold plan.
  • Premiums should be based on age; however, the age-rated formula should increase from its current level of 3 to 1 to around 3.5 to 1.
  • Create a low-cost hybrid private-government health insurance option for people who cannot afford comprehensive health insurance because of affordability concerns. Under the private-government option, the private insurance plan would cover all insured expenditures under a cap and the government plan would pay most (maybe even all) expenditures above the cap.

Comment One:  State exchanges are the poor cousin of employer-based insurance and other venues.

Here are some statistics comparing the composition of the market for state exchange insurance to the composition of other venues, primarily employer-based coverage.

  • Around 10 million people obtain their health insurance through state exchanges compared to around 150 million people obtaining their health insurance through employer-based insurance.
  • Around 6.8 percent of state-exchange market place participants are between the age of 21 and 26 compared to 8.1 percent of people obtaining health insurance through other venues.
  • Around 21.7 percent of people with state exchange coverage are over age 55 compared to 15.1 percent for other venues.

These difference between the composition of ACA exchanges and employer-based insurance and other venues will result in ACA insurance being either more expensive or less generous than employer-based coverage.

The post linked below has some interesting information on the age composition of state exchange market places compared to employer-based insurance.

Comment Two:   The disparity between state-exchange coverage and employer based coverage is the result of ACA rules and the extremely generous treatment of employer-based health insurance under the tax code.  ACA rule include the employer mandate and a rule that prevents people with offers of employer-based insurance from obtaining a tax credit for insurance on state exchanges. The ACA tax credit is also phased out for workers with household income over 400 percent of FPL. The preferential tax treatment of employer-based insurance results in many employers paying a large portion of their worker’s health insurance premiums.

Comment Three:   The health care plan offered by John McCain would have replaced the existing employer-based tax preference for health insurance with a universal tax credit for the purchase of health insurance.   The McCain plan offered a tax credit of $5,000 for families and $2,500 for individuals.  This plan would have placed everyone in a private market place similar to state exchanges. The proposal offered here would move us in the direction favored by John McCain.  Republican proposals of 2017 retain preferences for employer-based insurance over state exchanges.

Article on John McCain’s 2008 Health Plan

Comment Four:   There has been a long-term trend for small businesses to drop offers of employer-based coverage.  Many small business that are unwilling or unable to offer employer based insurance to their employees may be able to afford some employee contributions.

Comment Five:  Both the McCain plan offered in 2008 and the Republican plans offered in 2017 include funding for high-risk pools set up by states for people that cannot get coverage on state exchange or through their employer.  High-risk pools are not a cost-effective way to cover people with pre-existing conditions.

Many people have pre-existing conditions and people with pre-existing conditions are expensive to insure. The HHS estimated that around 61 million non-elderly people have pre-existing conditions that qualify them for high-risk pools under the eligibility requirement for high-risk pools that existed prior to the ACA.  Moreover, around 133 million non-elderly people would be viewed as having a pre-existing condition under the underwriting procedures generally employed by insurance companies.  Under some health care proposals, these people could be either denied coverage or charged higher premiums.

Around 18 million people with pre-existing conditions were uninsured in 2010 prior to the implementation of the ACA.  Over $90 billion per year is required to insure these people.   Recent republican proposal for new high-risk pools allocated around $10 billion per year.

HHS report on number of Americans with Pre-existing conditions:

The use of high-risk pools to cover people who cannot get insurance in a market place that allows insurance companies to either deny coverage for pre-existing conditions or base rates on insurance premiums would leave many people uninsured.

Comment Six:  The proposal for a private-public partnership offered in this paper will cover far more people at lower cost than high-risk pools.   Under the private-public partnership the private insurance company will cover all expenses over a certain threshold and the government will pay all or most expenses over the threshold.  The private-public partnership could substantially reduce the cost of private insurance depending upon the threshold limiting annual health expenditures by the private insurance firm and the share of expenses for the private firm over the threshold.   The cost sharing would also substantially reduce the variability of insurance expenditures, which could stabilize premiums.

One way to implement this program is to provide automatic enrollment into Medicaid for people who purchase a health insurance plan with an annual cap on expenditures (perhaps $40,000).   This approach essentially turns Medicaid into a reinsurance program.   However, in contrast to some reinsurance schemes, government payments would be made directly to customers rather than insurance firms.  The cost of this approach would be borne by the government and would depend on the number of high-cost cases, which is not knowable in advance.   However, the cost sharing arrangement would be smaller than a high-risk pool, which insured the same number of people.

For more information on the costs and benefits of this approach see my previous blog on the topic

A proposed public-private health insurance hybrid:

Comment Seven:   The current proposal relies on age-rated premiums where age rating is set at 3.5 to 1.  As discussed in comment five above, the cost of unrestricted underwriting based on health status would be extremely high.   It would be useful to compare insurance premiums and costs of the partnership for the situation where premiums are purely determined by age to a rule where premiums are determined by both age and health status.  (For example, premiums would be allowed to vary 3.5 to 1 based on age with a 5 percent penalty for people with pre-existing conditions).

People would be allowed to purchase the public-private partnership based on some formula, like purchase the private partnership if premiums on the purely private plan were more than 9 percent of income.   I suspect, but cannot prove, that a rule allowing insurance companies to consider health status when setting premiums would substantially increase government subsidies compared to a rule where premiums are exclusively determined by age.  Clearly the most expensive government subsidy would occur when insurance companies could deny all applicants with pre-existing conditions and/or premiums were entirely determined by health status.

Comment Eight:  The primary reason why state exchange market places have disproportionately fewer enrollees between the age of 18 and 26 is that the ACA allows young adults to remain on their parent’s health insurance policy and most working-age people have employer-based policy. Polices could be implemented to encourage young adults to leave their parent’s policy in favor of a state exchange policy.   However, this may not be necessary.

Polices that move more working-age households to state exchange market places will automatically increase the number of young adults with state-exchange coverage. An empirical analysis based exclusively on people over 26 finds that in this truncated group participants in state exchange market places are younger than people with employer-based policies.

Concluding Remarks: The ACA created a separate health insurance market for working-age people without an offer employer-based insurance.  In this case, separate is not equal.  The ACA can only be fixed by creating incentives for people to move from employer-based insurance to independent market places.