The Individual Health Insurance Mandate

Legislation to replace and/or reform Obamacare (the Patient Protection and Affordable Care Act—ACA) was passed by the U.S. House of Representatives last week. Despite President Trump’s premature celebration the process of fashioning a new health care law is just getting underway as the Senate begins the rewriting of the House bill. One of the important issues dividing Democrats from most Republicans, and Republicans from each other, concerns whether everyone should be required to buy health insurance and if so what that insurance must minimally cover. “Health Care Plan B”

The fundamental purpose of insurance is to provide the broadest possible sharing of unpredictable costs. Thus it was not surprising that the Heritage Foundation published a report by Stuart M Butler recommending mandatory health care insurance on October 1, 1989: “Assuring Affordable Health Care for All Americans”. Dr. Butler elaborated his health care insurance mandate in a March 5, 1992 Heritage Foundation report: “Policy Maker’s Guide to the Health Care Crisis”

Robert E. Moffitt elaborated the public policy case for the insurance mandate as follows: “Absent a specific mandate for at least catastrophic health insurance coverage, some persons, even with the availability of tax credits to offset their costs, will deliberately take advantage of their fellow citizens by not protecting themselves or their families, with the full knowledge that if they do incur a catastrophic illness that financially devastates them, we will, after all is said and done, take care of them and pay all of the bills. They will be correct in this assessment…

“An individual mandate for insurance, then, is not simply to assure other people protection from the ravages of a serious illness, however socially desirable that may be; it is also to protect ourselves. Such self protection is justified within the context of individual freedom; the precedent for this view can be traced to none other than John Stuart Mill.” Health Affairs, January 1994.

Two bills offered in the U.S. Senate in 1994, the Consumer Choice Health Security Act sponsored by 25 Republican Senators and the bipartisan Health Equity and Access Reform Today Act sponsored by 19 Republican and 2 Democratic Senators included health insurance mandates.

When Mitt Romney was the governor of Massachusetts signed that state’s “An Act Providing Access to Affordable, Quality, Accountable Health Care,” adopted in 2006 with broad bipartisan support. It required all Massachusetts residents to buy health insurance. Surprisingly in 2008 presidential candidate Barack Obama opposed an individual mandate (but apparently supported the existing employer health insurance mandate for their employees). But only two years later in 2010 then President Obama signed into law the ACA, which included a weak individual insurance mandate.

Conservatives turned against the individual mandate, I assume, because it seemed to exceed the constitutional authority of the federal government under the enumerated powers of the U.S. constitution (remember them). In a very controversial 5-4 Supreme Court decision written by Chief Justice Roberts, the court ruled on June 28, 2012 in National Federation of Independent Business v. Sebelius that although the individual mandate was not constitutional under the commerce clause (already stretched beyond recognition), it could be construed as a tax and was therefore valid under the constitutional authority for congress to “lay and collect taxes.” While I favor a health insurance mandate, I also favor preserving the constitutional limitations on the powers of the federal government, which leave the establishment of such mandates to the individual states.

States have generally been more successful at addressing the financing of its citizens’ health care needs. They also have the advantage of learning from each others experiences. Consider the issues of catastrophic health care costs and those of preexisting conditions. Preexisting conditions are not appropriate for insurance coverage (insurance is meant to share the cost of “future and unexpected losses”), but they must, nonetheless, be paid for by someone. In the past, the financing of these known and/or unusually large expenses have been provided through risk pools. “Before Obamacare, 35 states had risk pools – available to people in the individual market who had been turned down for private insurance because of a health condition…. These arrangements were not perfect,” but worked better than the approach taken in Obamacare and should be restored and improved. “High risk pools worked just fine before obamacare”

So where are we? Republicans and Democrats want generally the same outcome–cheaper but better healthcare for all.  Democrats want that administered by the government and Republicans want to rely more on the private sector. I favor the latter.  Hopefully as the Senate writes their own health care reform bill they will provide the federal government’s financial support (tax subsidies) for those unable to afford their medical care costs (whether directly or via insurance) in such a way that states are incentivized to require individual mandates for adequate health insurance and that health care providers are not rewarded for unnecessary procedures. This is one important and complex piece of the overall adjustments needed to lower the cost of providing good care to everyone while allocating its cost fairly (a whole other debate).



Health Care: Plan B

“Our goal is to give every American access to quality, affordable health care,” Paul Ryan “Health care Obamacare replacement-Paul Ryan”

The above statement by Paul Ryan is the goal of both Republicans and Democrats, so surely there is enough common ground that with a few compromises on each side congress can adopt reforms with broad support. Such fundamental, broad based legislation should always have broad bipartisan support. Failure to fulfill that requirement was one of Obamacare’s flaws.

America’s universal health care costs twice as much as does health care in Europe. Healthcare costs per capital in the United State in 2014 where $9,024, while in Canada they were $4,506 and in Italy $3,207. Our system provides universal care through company group insurance plans, individual insurance plans, government plans (Veterans Administration, Medicaid or Medicare), out of pocket payments for the uninsured who can afford it or charitable clinics and services, or free emergency room medical treatment for those who can’t afford it. “Health-care expenditures rose as a percentage of GDP from 5 percent in 1960 to 17.8 percent in 2015.” “A radical idea for health care reform-listen to the doctors.” While Canadians, Italians and others from around the world who can afford it come to the U.S. for top of the line care, the average result in terms of general health under America’s system is worse than in Europe. Clearly the American system is seriously flawed.

President Trump has promised that everyone would have health insurance and pay less for it. On January 15 he said: ““We’re going to have insurance for everybody. There was a philosophy in some circles that if you can’t pay for it, you don’t get it. That’s not going to happen with us.” “Trump-vows-insurance-for-everybody-in-obamacare-replacement-plan”. It is possible to achieve this ambitious promise.

This note reviews the options for reducing the cost of health care and insuring that everyone gets the care they need whether they can afford it or not.

Costs can be reduced by better aligning incentives of providers and patients for choosing the most cost effective care, by removing government and professional (i.e. union) restrictions on how care is delivered, by increasing competition to reduce the huge price range for the same service in the same market (e.g., stronger incentives for customers to seek out the best deal and the price/quality information needed for them to do so), and by Tort reform that reduces doctor’s risks of being sued that has resulted in wasteful, defensive prescriptions of unnecessary lab tests, etc.

Two broad measures supported by Republicans to reduce the cost of medical services are to free up the regulatory restrictions on how medical service are delivered (computerized diagnoses, telephone consultations, greater use of nurse practitioners, etc.) and stronger incentives for patients to shop for lower prices for the same service. Modern technology is on the threshold of dramatically improving the quality of health services while lowering its cost, if given the chance. Many Democrats would accept these reforms as well in exchange for better protection of the poor.

Health care services are paid for by various mixes of out of pocket payments, insurance, and government assistance. The design of this mix influences the incentives of service providers and patients to make better choices, and the fairness and efficiency of service financing.

Insurance by its nature is a plan for sharing health care costs so that those who are unlucky and have large health costs are helped by those who are lucky and don’t. The cost of insurance is lowest when the insurance pool is largest, mixing the healthy with the sick. Prior to the Affordable Care Act of 2010 (Obamacare), the private medical insurance market suffered from two serious problems. Most people acquire health insurance through their employer. Employers, especially companies with many employees, can negotiate better terms with insurance companies because insurers can be confident that the insured pool of workers has a normal mix of healthy and sick people over which to average the cost of insurance claims. However, they have another, unfair advantage over individually purchased insurance because that part of insurance premiums paid by employers (usually half) are not taxed as they would have been if paid out directly as wages then spent by the employee on health insurance. Furthermore, when an employee leaves the company for whatever reason, she losses the company provided policy and must pay the higher unsubsidized cost of insurance in the private market, plus a still higher premium if she has an existing medical condition and risks being uninsurable all together.

Republicans and Democrats both agree that people should be able to keep their insurance policy if they change employers, retire, or become unemployed and that the private and the company markets should enjoy the same tax treatment (both should have the same tax exemption or both should have no tax exemption for insurance premiums). Both also endorse some form or other of supporting the cost to insurance companies of patients with chronic or catastrophic medical costs. Different states have adopted and are experimenting with different approaches to financing such costs and should be encouraged to continue doing so by converting Federal financial assistance into block grants to the states. Agreement in both parties on the approach to these situations should not be that difficult to reach if the effort is made.

For given health service costs, the lowest possible insurance premiums for insurance policies that cover them would be achieved when everyone is required to pay them. Thus everyone should be required to have health insurance. Many issues arise about the coverage of such insurance (any uncovered health care services would have to be paid for out of the patient’s pocket, by charities, or by tax payers). One issue is whether there should be one insurance pool sharing the costs (healthier young paying for the sicker elderly, men paying for women’s child birth and women paying for uniquely male afflictions, etc.) or several. For example, should premiums reflect age differences as they do now (the more costly elderly pay higher premiums than the less costly young but not enough higher to cover their higher costs)? If insurance pools should be segregated by age, should the segregation be total (no health care financing transferred on average from young to old) or should the higher health costs of the elderly be financed to some extent by the young, and if so to what extent? Keep in mind that the very purpose of insurance is to share costs. As anyone could opt out of the insurance mandate under Obamacare with only a modest penalty, fewer younger people acquired insurance than was expected, leaving an older, sicker, and thus more costly pool to share the costs. This has been one of the factors increasing insurance premiums under Obamacare.

If the government makes purchasing health insurance mandatory, as it should, it will have to set the minimum standards of coverage required to satisfy that mandate. It is really contrary to the whole purpose and philosophy of insurance that each person would choose to insure only those health needs they think they might need (car accident, heart attack, diabetes, broken arm, etc). However, the coverage of all such possibilities can come with a higher or lower deductible and copay or a wider or narrower network of participating medical practitioners etc. Republicans and Democrats can surely come to an agreement over these minimum features. The required features should be carefully designed to maximize the incentives for providers and recipients to make efficient choices. Anyone wishing to and willing to pay for broader services (a doctor outside the network, recovery in the Swiss Alps, etc.) would be, as always, free to do so. The United States already has a government run insurance policy for the elderly called Medicare. Medicare can be purchased in addition to other health insurance policies or in place of them and thus is not a so-called “single payer” system.

With such a minimum coverage policy established by the government, each of us would be free to sign up for an employer offered policy of our choice or buy one from the private market with no difference in price with the policy offered by the employer (incorporating the above recommended elimination of tax discrimination between company and private market policies and allowing policy portability). The bigger challenge is how to cover the cost of insurance for those who cannot afford it. Democrats generally prefer to achieve universal insurance coverage via the government as the single payer and health service provider (our VA system or the British public health service) leaving the better off free to pay more for services outside that system if they wish to. Republicans generally prefer to maximize the choices of the public and to encourage competition among insurance providers.

Health insurance for the poor must be paid for by the government one way or another. Our existing system—Medicaid—is administered by states, which determine eligibility, but is financially supported by the Federal Government if its considerable regulations are adopted by the state. Only American citizens and legal permanent residents are eligible for Medicaid. Obamacare subsidizes up to 90% of state costs for Medicaid. One criticism of Medicaid financing is that when its recipients start working they can loose coverage. This is the so-called financial cliff and can be a deterrent to accepting a job or increasing the number of hours worked. Obamacare has addressed this problem by phasing out the withdrawal of Medicaid financing, ending it at incomes well above the poverty line

Republicans have proposed a refundable tax credit, in effect a guaranteed minimum income, for the poor that must be applied to the purchase of health insurance. This opens the door to competition among multiple insurance providers and would make it easier for low-income families to purchase more expensive policies, if they wanted to, by adding a small amount of their own money to the government’s tax credit. This is close to the minimum guaranteed income proposals I support. “US federal tax policy”. A gradual phasing out of the tax credit as one’s income increased above the poverty level would also reduce the work disincentive of the financial cliff.

The state run insurance exchanges are a useful aid to those looking for an insurance policy and should be retained. Either the Republican tax credit or the Democrat direct subsidy would be applied via the exchanges.

There are many important details to sort out that I have only hinted at. But as Republicans and Democrats both want the more efficient delivery of health care, which would reduce its costs, and humane and effective provision of the financing of such services to everyone, including the poor, it should be possible with only modest give and take to agree on a package that would enjoy broad bipartisan support.

Health Care in America

It is hard to get our arms around the issues raised by health care in America. Indeed, President Trump was telling the truth (for a change) when he said that health care “is so complicated.” There are a lot of trees in that forest, and each one matters, but it is helpful to see the forest first, which is my modest objective for this note.


Americans spend twice as much on average for healthcare as do Europeans and with poorer results. To take one example, the U.S. has an infant mortality rate of 5.8 deaths per 1,000 births while in South Korea it is 3.0. How the delivery of medical services is paid for is a critically important part of why healthcare is so expensive in the U.S., but it is not the only factor. Most health services in the U.S. are provided by the private sector. Government and professional regulations and restriction on how these services may be delivered play a very important role in their cost.

These regulations govern the extent to which technology and medical experts with less training than MDs (e.g. nurse practitioners) may be used to provide routine medical advice. The use of computer diagnostics, either to assist MDs or directly accessed via the Internet by patients; phone consultations, assisted by Internet delivered medical metrics; and nurses for routine medical treatment, will significantly reduce costs while improving the average quality of service. Some of this is already happening, but the American Medical Association, the union for doctors, like most unions, has historically “protected” the incomes of doctors by restricting completion in providing their services. In this instance, I believe that technology, when allowed will make a major contribution.

Improved transparency with regard to the cost of alternative treatments would help reduce the shocking disparity between the costs of the same treatment from different providers. How medical services are financed (the subject of the next section) profoundly influences whether patients care about and monitor costs and what doctors provide and charge for.


The provision of health care services in the U.S. can be divided into five categories – five separate systems. Data reported here is for 2014 as reported by the U.S. Census Bureau.

U.S. military veterans receive care through the Veteran’s Administration. The VA program covers 14.1 million people or 4.5 percent of the population. The VA health service is a single payer (government), government run program, which is regularly condemned for its poor service and corruption.

Medicaid and Medicare are single payer (government) programs for the poor (Medicaid) and the elderly (Medicare) that finance privately provided medical services. The single payer, the government, sets the service standards and their costs for the health services financed by these programs, but they are delivered by the private sector, though the government determines which doctors may participate and thus must be used by the program’s beneficiaries.

In 2014 Medicaid covered 62 million people or 19.5% of the population and currently covers 68 million. Quoting from government websites: “Medicaid is an assistance program” (i.e. not insurance). “It serves low-income people of every age. Patients usually pay no part of costs for covered medical expenses. A small co-payment is sometimes required. Medicaid is a federal-state program. It varies from state to state. It is run by state and local governments within federal guidelines…. In all states, Medicaid provides health coverage for some low-income people, families and children, pregnant women, the elderly, and people with disabilities. In some states the program covers all low-income adults below a certain income level.”

In 2014 Medicare covered 50.5 million people or 16% of the population, a number that is growing rapidly as the U.S. population ages. “Medicare is an insurance program. Medical bills are paid from trust funds that those covered have paid into. It serves people over 65 primarily, whatever their income; and serves younger disabled people and dialysis patients. Patients pay part of costs through deductibles for hospital and other costs. Small monthly premiums are required for non-hospital coverage. Medicare is a federal program. It is basically the same everywhere in the United States and is run by the Centers for Medicare & Medicaid Services, an agency of the federal government.” This program seems broadly to have been operating satisfactorily. Hence the often-heard demands from older Republicans of “don’t touch my Medicare.”

In addition, 208.6 million people or 66% of the population had private health insurance plans in 2014. Of these, most (175 million or 55%) had insurance plans offered by their employers. The rest (47 million) bought their health insurance directly. Employer provided plans are subsidized because their premium payments are not taxed as part of an employee’s remuneration while the income from which people buying their own policies pay their premiums is taxed (including the amount they spend on insurance). This has created several serious problems.

Employee provided insurance policies are not portable, i.e. when a worker leaves that employer (fired, resigned, or retired) she cannot take the policy with her. This creates the preexisting condition problem. But first a time out for a quick look at the nature of insurance.

Insurance is a mechanism by which a group of people (the insurance pool) shares the costs of expenses (heart operation, car repair from an accident, home repair from a fire, etc.) that are expected to fall only on a few of them. Those who are lucky enough not to incur such costs help pay for those not so lucky. The group as a whole pays the entire cost of what ever was insured, but the lucky help out the unlucky. This means that the over all aggregate cost, and thus each person’s share of it, depends on who is in the insurance pool. If the pool is the entire population of a country, city, or company, then (if we are discussing health insurance) there will be more healthy people than unhealthy and the average insurance cost per person will be lower than if only unhealthy people are in the pool. Any one who knows that he will not get sick or have an accident (and who doesn’t care about sharing the cost of the less fortunate) would have no reason to join the pool and buy insurance. But of course no one can know that for sure.

If in the course of your employment you acquire or learn that you have a liver disease, the costs of your treatment will be covered by your company insurance plan. But if you change jobs and must take out a new insurance policy with your new employer (or as self employed) your condition will be known in advance and no insurance company would want to insure you at their normal group rates knowing that they would lose money by adding you. This is the origin of the pre existing condition problem. Anyone who acquires an insurance policy in his or her youth and is able to keep it continuously will not face a preexisting condition problem.

At the end of 2014, 33 million people (10.4 percent of the population) were uninsured. This dropped to 27 million people at the end of 2017. The Congressional Budget Office expects that number to rise modestly under Obamacare to 28 million by 2026. This group on average receives less medical care and relies more on emergency room services.

Two major objectives of Obamacare were: a) to forbid insurance companies from denying policies to people with preexisting medical conditions or to charge them more for coverage, and b) to reduce the number of uninsured in part to increase the size of the insurance pool with more healthy members to help cover the costs of the unhealthy. It also expanded eligibility to Medicaid to all able-bodied adults below 138 percent of the federal poverty level and initially covers 95% of the cost to each state for its expansion of enrollees.

To encourage the uninsured (those not eligible for Medicaid choosing not to have insurance) to join the insurance pool, thus helping to pay for the sick, Obamacare subsidizes the premiums of policies purchased on health insurance exchanges established under Obamacare in most states for anyone whose income is less than 400% of the federal poverty level. However, the number those uninsured that have acquired health insurance under Obamacare has fallen short of expectations. Those who have signed up have often had preexisting medical problems. As a result the cost of insurance acquired on these exchanges has risen more than expected. The rising cost of insurance is discouraging more people from acquiring it, a phenomenon referred to as a “death spiral.”

American Health Care Act

The House GOP’s American Health Care Act (AHCA) proposal to “replace” the Affordable Care Act (Obamacare) tweaks many of the costs and subsidies in Obamacare in an effort to improve the structure of incentives for cost effective care but this would take us from the forest to some of its individual trees.

The GOP proposal would eliminate Obamacare’s penalty for those choosing not to insure and allow people to keep their policies (portability) when they change jobs or become unemployed. If there is a gap in coverage, a person would have to pay a one time penalty over standard insurance rates of 30%. Republican leadership argues that these incentives are sufficient to encourage more people to get and retain health insurance thus solving the prior condition problem and provide for a large enough pool of insured to keep premiums down.

The assessment of the Congressional Budget Office, on the other hand is “that 24 million fewer people would have coverage a decade from now than if the Affordable Care Act remains intact.” Obamacare-revision-would-reduce-insured-numbers-by-24-million/2017/03/13/. The Washington Post titled their report on the CBO’s findings “Affordable Care Act revision would reduce insured numbers by 24 million, CBO projects”. Readers would be forgiven for thinking that the GOP proposal would take away or eliminate coverage by that amount, when in fact the CBO estimate reflects their expectation of the number of people who would choose not to insure given the terms proposed by the Republicans. The Wall Street Journal gave a more balanced headline to its report on the CBO assessment: “CBO Sees 24 Million More Uninsured, $337 Billion Deficit Cut With GOP Plan”

Whenever costly services are provided free of charge, they are not allocated and rationed by price. In place of market price allocation, the mechanism by which almost everything else in a free market is allocated, services provided “free” must be allocated and rationed by regulations. Whoever pays for the medical care received determines the care options chosen and thus has a major impact on its cost. Currently for most people (other than the poor and elderly who qualify for Medicaid and Medicare) the payer is the insurance policy they chose plus the copay that it requires. For a single payer insurance program such as Medicaid and Medicare, the payer is largely the government, which determines by regulation the quality, choice and cost of service. Democrats generally favor a single payer approach and the government regulation of the health service industry that that would require, while Republicans generally favor government financing only for the poor and disabled (safety net) and reliance on greater individual choice in a more competitive market for both insurance and medical care. This reflects the more general preference by Democrats for government regulation of products, services and markets and by Republicans for primary reliance on individual consumer choice.

An alternative Approach

In my opinion, the public policy goal for the provision of health care should be to provide satisfactory care to those who cannot afford it (the poor) in a cost effective manner, to provide everyone else with as much choice as possible and the information that would be helpful in making such choices, and to open medical practice to as much flexibility and competition as possible. The tax proposals I have made earlier would lay the best foundation on which to build such policies: My political platform for the nation-2017.  I would replace all business and personal income taxes and payroll taxes with a flat consumption tax (Value Added Tax—VAT) and introduce a per person minimum guaranteed income (tax credit) that varies with age but not income and is sufficient for a minimum level of healthy existence. US federal tax policy, Cayman Financial Review July 2009 A mandatory health savings account contribution (in place of Medicaid and Medicare and any other insurance subsidies) and a mandatory retirement account contribution (in place of Social Security) would be made from the monthly minimum guaranteed income payments in amounts sufficient for satisfactory health care insurance and retirement. Saving social security. The administrative requirements for such a simple system would be minimal.

I do not wish to suggest for a second that providing everyone with a satisfactory guaranteed minimum income will deliver the good life to everyone. In fact, most people are not happy—do not feel fulfilled and whole—without a decent job. Most people want to work. The recent spike in suicides and opiate overdose deaths seems related to the idleness of those who have given up looking for work. Nicholas N. Eberstadt points out that:

“According to [Alan Krueger’s] work, nearly half of all prime working-age male labor-force dropouts—an army now totaling roughly 7 million men—currently take pain medication on a daily basis…. But how did so many millions of un-working men, whose incomes are limited, manage en masse to afford a constant supply of pain medication? Oxycontin is not cheap…. One main mechanism today has been the welfare state: more specifically, Medicaid, Uncle Sam’s means-tested health-benefits program.

“By the way: Of the entire un-working prime-age male Anglo population in 2013, nearly three-fifths (57 percent) were reportedly collecting disability benefits from one or more government disability program in 2013. Disability checks and means-tested benefits cannot support a lavish lifestyle. But they can offer a permanent alternative to paid employment, and for growing numbers of American men, they do. The rise of these programs has coincided with the death of work for larger and larger numbers of American men not yet of retirement age. We cannot say that these programs caused the death of work for millions upon millions of younger men: What is incontrovertible, however, is that they have financed it—just as Medicaid inadvertently helped finance America’s immense and increasing appetite for opioids in our new century.” Commentary Magazine, Our miserable 21st century February 15, 2017.

Getting the incentives in government assistance programs right is difficult. But better jobs are needed as well. The government’s stifling regulations of too many aspects of the private economy have reduced investment and growth in productivity (the basis of increases in our standard of living) to a crawl. The medical care industry is only one of many in which a better balance between government and market regulation of economic activity and smarter policies with better structured incentives for those making decisions are badly needed.

Post Script

PS: The Republican leadership has chosen to put forth its American Health Care Act (AHCA) in the form of a budget “reconciliation” bill. This allows its adoption by simple majority rather than the usual 60% majority, but it limits the scope of the act to what might be considered budgetary aspects. This is behind the rush and the limited range of changes that are possible for the AHCA. There are pros and cons to such a process, which was also followed for Obamacare.

The advantages are that the bill can be passed with a lower level of congressional support and that the sectors of the economy adversely effected (a bill that changes anything will necessarily have winners and losers) will have less time to mount a fight to save or promote their special interests. The disadvantages are that the potential to improve the bill by hearing and considering all views will be limited and that the opportunity to build broad support via compromises will be missed. In my opinion such important and fundamental legislation should obtain broad support. The failure to do so was one of the flaws of Obamacare.

PPS. When new rules change the outcomes for some, fairness dictates an as painless as possible transition from the existing rules to the new ones. Some of the debate among House Republicans concerns transition issues, such as from current Federal financing of state expansions of Medicaid coverage to Federal block grants meant to give states more flexibility in how they use these funds.