Requiring Individuals to Obtain Health Insurance: A Constitutional Analysis
Summary
As part of the Patient Protection and Affordable Care Act, P.L. 111-148,
Congress enacted a provision that requires certain individuals to have a minimum level of health insurance. Covered individuals
who fail to maintain sufficient coverage will be subject to a financial penalty beginning in 2014. Although the federal government
provides health coverage for many individuals through federal programs such as Medicare, it had never before required individuals
to purchase health insurance. There are various constitutional considerations relevant to the enactment of this provision.
This report provides an analysis of constitutional issues raised by compelling individuals to purchase health insurance. This
report first analyzes the authority of Congress to pass a law of this nature, as well as how a court could analyze this provision
in light of a constitutional challenge based on various provisions of the Fifth and Tenth Amendments. Finally, this report
discusses whether the exceptions to the individual responsibility requirement to purchase health insurance satisfy First Amendment
freedom of religion protections.
Q
06/15/2001
During the health reform
debate, President Obama made clear to Americans that “if you like your health plan, you can keep it.” He
emphasized that there is nothing in the new law that would force them to change plans or doctors. Today, the Departments of
Health and Human Services, Labor, and Treasury issued a new regulation for health coverage in place on March 23, 2010 that
makes good on that promise by:
•Protecting the ability of individuals and businesses to keep their current
plan;
•Providing important consumer protections that give Americans – rather than insurance companies –
control over their own health care.
•Providing stability and flexibility to insurers and businesses that
offer insurance coverage as the nation transitions to a more competitive marketplace in 2014 where businesses and consumers
will have more affordable choices through Exchanges.
The rule announced today preserves the ability of the American
people to keep their current plan if they like it, while providing new benefits, by minimizing market disruption and putting
us on a glide path toward the competitive, patient-centered market of the future. While it requires all health plans
to provide important new benefits to consumers, it allows plans that existed on March 23, 2010 to innovate and contain costs
by allowing insurers and employers to make routine changes without losing grandfather status. Plans will lose their
“grandfather” status if they choose to significantly cut benefits or increase out-of-pocket spending for consumers
– and consumers in plans that make such changes will gain new consumer protections.
Most of the 133 million
Americans with employer-sponsored health insurance through large employers will maintain the coverage they have today.
Large employer-based plans already offer most of the comprehensive benefits and consumer protections that the Affordable Care
Act will provide to all Americans this year – such as preventing lifetime limits on coverage – and in the future.
People
who work in smaller firms – which change insurers more often due to annual fluctuations in premiums – and people
who purchase their own insurance in the individual market– a group that frequently changes coverage – will enjoy
all of the benefits of the Affordable Care Act when they choose a new plan. These Americans also will benefit from the
new competitive Exchanges that will be established in 2014 to offer individuals and workers in small businesses with greater
choice of plans at more affordable rates – the same choice of plans as members of Congress.
Protecting
Patients’ Rights in All Plans
All health plans – whether or not they are grandfathered plans –
must provide certain benefits to their customers for plan years starting on or after September 23, 2010 including:
•No
lifetime limits on coverage for all plans;
•No rescissions of coverage when people get sick and have previously
made an unintentional mistake on their application;
•Extension of parents’ coverage to young adults under
26 years old; and the
For the vast majority of Americans who get their health insurance through employers, additional
benefits will be offered, irrespective of whether their plan is grandfathered, including:
•No coverage exclusions
for children with pre-existing conditions; and
•No “restricted” annual limits (e.g., annual dollar-amount
limits on coverage below standards to be set in future regulations).
Additional
Consumer Protections Apply to Non-Grandfathered Plans
Grandfathered health plans will be able to make routine
changes to their policies and maintain their status. These routine changes include cost adjustments to keep pace with
medical inflation, adding new benefits, making modest adjustments to existing benefits, voluntarily adopting new consumer
protections under the new law, or making changes to comply with State or other Federal laws. Premium changes are not
taken into account when determining whether or not a plan is grandfathered.
Plans will lose their grandfathered
status if they choose to make significant changes that reduce benefits or increase costs to consumers. If a plan loses
its grandfathered status, then consumers in these plans will gain additional new benefits including:
•Coverage
of recommended prevention services with no cost sharing; and
•Patient protections such as guaranteed access to OB-GYNs
and pediatricians.
Under the Affordable Care Act, these requirements are applicable to all new plans, and existing plans
that choose to make the following changes that would cause them to lose their grandfathered status.
Compared to
their polices in effect on March 23, 2010, grandfathered plans:
•Cannot Significantly Cut or Reduce Benefits.
For example, if a plan decides to no longer cover care for people with diabetes, cystic fibrosis or HIV/AIDS.
•Cannot
Raise Co-Insurance Charges. Typically, co-insurance requires a patient to pay a fixed percentage of a charge (for example,
20% of a hospital bill). Grandfathered plans cannot increase this percentage.
•Cannot Significantly Raise
Co-Payment Charges. Frequently, plans require patients to pay a fixed-dollar amount for doctor’s office visits
and other services. Compared with the copayments in effect on March 23, 2010, grandfathered plans will be able to increase
those co-pays by no more than the greater of $5 (adjusted annually for medical inflation) or a percentage equal to medical
inflation plus 15 percentage points. For example, if a plan raises its copayment from $30 to $50 over the next 2 years,
it will lose its grandfathered status.
•Cannot Significantly Raise Deductibles. Many plans require patients
to pay the first bills they receive each year (for example, the first $500, $1,000, or $1,500 a year). Compared with the deductible
required as of March 23, 2010, grandfathered plans can only increase these deductibles by a percentage equal to medical inflation
plus 15 percentage points. In recent years, medical costs have risen an average of 4-to-5% so this formula would allow
deductibles to go up, for example, by 19-20% between 2010 and 2011, or by 23-25% between 2010 and 2012. For a family
with a $1,000 annual deductible, this would mean if they had a hike of $190 or $200 from 2010 to 2011, their plan could then
increase the deductible again by another $50 the following year.
•Cannot Significantly Lower Employer Contributions.
Many employers pay a portion of their employees’ premium for insurance and this is usually deducted from their paychecks.
Grandfathered plans cannot decrease the percent of premiums the employer pays by more than 5 percentage points (for example,
decrease their own share and increase the workers’ share of premium from 15% to 25%).
•Cannot Add or Tighten
an Annual Limit on What the Insurer Pays. Some insurers cap the amount that they will pay for covered services each
year. If they want to retain their status as grandfathered plans, plans cannot tighten any annual dollar limit in place
as of March 23, 2010. Moreover, plans that do not have an annual dollar limit cannot add a new one unless they are replacing
a lifetime dollar limit with an annual dollar limit that is at least as high as the lifetime limit (which is more protective
of high-cost enrollees).
•Cannot Change Insurance Companies. If an employer decides to buy insurance for
its workers from a different insurance company, this new insurer will not be considered a grandfathered plan. This does
not apply when employers that provide their own insurance to their workers switch plan administrators or to collective bargaining
agreements.
Protecting Against Abuse of Grandfathered Health Plan Status
To prevent health plans from using the
grandfather rule to avoid providing important consumer protections, the regulation provides for:
•Promoting
transparency by requiring a plan to disclose to consumers every time it distributes materials whether the plan believes that
it is a grandfathered plan and therefore is not subject to some of the additional consumer protections of the Affordable Care
Act. This allows consumers to understand the benefits of staying in a grandfathered plan or switching to a new plan.
The plan must also provide contact information for enrollees to have their questions and complaints addressed;
•Revoking
a plan’s grandfathered status if it forces consumers to switch to another grandfathered plan that, compared to the current
plan, has less benefits or higher cost sharing as a means of avoiding new consumer protections; or
•Revoking a plan’s
grandfathered status if it is bought by or merges with another plan simply to avoid complying with the law.
Projected
Impact on Consumers and Plans
Large Employer Plans
The 133 million Americans with employer-sponsored
health insurance through large employers (100 or more workers) —who make up the vast majority of those with private
health insurance today—will not see major changes to their coverage as a result of this regulation. This regulation
affirms that most of these plans will remain grandfathered – more than three-quarters of firms in 2011 – based
on the way they changed cost sharing from 2008-2009. Most of these plans already offer the patient protections applied
to grandfathered plans such as no pre-existing condition exclusions for children and no rescissions of coverage when a person
gets sick. In addition, they are likely to already give their workers and families protections like a choice of OB-GYN
and pediatrician and access to emergency rooms in other states without prior authorization. Based on past patterns of
behavior, it is expected that large employers will continue to make adjustments to the health plans they offer from year to
year so that, by the time the health insurance Exchanges are established in 2014, fewer – but still most – large
employer plans will have grandfather status. However, the assumed market changes depend on the choices large employers
make in the future.
Small Business Plans
The roughly 43 million people insured through small businesses
will likely transition from their current plan to one with the new protections over the next few years. Small plans
tend to make substantial changes to cost sharing, employer contributions, and health insurance issuers more frequently than
large plans. As such, we estimate that 70% of plans will be grandfathered in the first year, but depending on the choices
these employers make, this could drop to about one-third over several years. To help sustain small business coverage,
the Affordable Care Act also includes a tax credit for up to 35% of their premium contributions.
Individual Health
Market
The 17 million people who are covered in the individual health insurance market, where switching of plans
and substantial changes in coverage are common, will receive the new protections of the Affordable Care Act sooner rather
than later. Roughly 40 percent to two-thirds of people in individual market policies change plans within a year. Given this
“churn,” the transition for the 17 million people in this market will be swift. In the short run, individuals
whose plan changes and is no longer grandfathered will gain access to free preventive services, protections against restricted
annual limits, and patient protections such as improved access to emergency rooms. These Americans also will benefit from
the Health Insurance Exchanges that will be established in 2014 to offer individuals and workers in small businesses a much
greater choice of plans at more affordable rates.
People in Special Types of Health Plans
Fully-insured
health plans subject to collective bargaining agreements will be able to maintain their grandfathered status until their agreement
terminates. After that point, they are subject to the same rules as other health plans; in other words, they will lose their
grandfathered status if they make any of the substantial changes described above. Retiree-only and “excepted health
plans” such as dental plans, long-term care insurance, or Medigap, are exempt from the Affordable Care Act insurance
reforms.
Projections of Employer Plans Remaining Grandfathered, 2011-2013
There is considerable
uncertainty about what choices employers will make over the next few years as the market prepares for the establishment of
the competitive Exchanges and other market reforms such as new consumer protections, middle-class tax credits and other steps
to expand affordabilty and choice for millions more Americans. This rule estimates the likely decisions of employers
based on assumptions and extrapolations of recent market behavior, including the decisions by employers to change their health
plans in 2008 and 2009.
Choices in 2014 and Subsequent Years
In 2014, small businesses
and individuals who purchase insurance on their own will gain access to the competitive market Exchanges. These Exchanges
will offer individuals and workers in small businesses with a much greater choice of plans at more affordable rates –
the same choice as members of Congress. In fact, the Congressional Budget Office (CBO) has estimated that, on an apples-to-apples
basis, premiums will be 14- 20 percent lower than they would be under current law in 2016 due to competition, lower insurance
overhead, and increased pooling and purchasing power. Small businesses also will have more affordable options.
CBO has estimated that a family policy for small businesses would be available in the Exchanges at a premium that is $4,000
lower than under current law in 2016.
These reduced premiums do not take into account the tax credits available
to small businesses and middle-class families to help make insurance affordable. These additional new choices may further
lower the likelihood that small businesses workers will remain in grandfathered health plans. Consumers insured through
large employers are more likely to remain in grandfathered plans in 2014 and beyond.
