Randy Barnett wrote his thoughts about severability in Texas v. U.S. over at Reason.com and here is my comment.

The individual mandate is an example of why I believe the Affordable Care Act was a bunch of dumb ideas that were poorly implemented. The individual insurance market as envisioned by the ACA depended on a carrot and stick approach. The carrot was affordable health insurance for the unsubsidized healthy people to lure them into the market willingly. This is how insurance companies make the money to pay for their unprofitable customers. The stick was the individual mandate. The individual mandate was designed to be scary, not effective. It would never have an influence on healthy customers like affordable health insurance. In 2010 individual insurance rates were already too expensive so healthy people made their adjustments. Some stuck with their grandfathered plans. Some went to alternative insurance products. Others dropped their insurance because they were exempt from the mandate because health insurance premiums would exceed 8.15% of their adjusted gross income. Insurance companies lost their best customers but were largely protected by the Risk Adjustment, Reinsurance, and Risk Corridor provisions. There is no free lunch.  Like all dumb ideas that are poorly implemented, the American government got stuck with the bill.


The only portion of the ACA that must continue to exist for the subsidized individual health insurance market to continue to exist is the Risk Adjustment, Reinsurance, and Risk Corridor provisions. If we want to continue to subsidize health insurance premiums for those people earning less than four times the federal poverty level then it will be born the general population rather than the unsubsidized healthy customers.  For the unsubsidized healthy customers, this is sweet revenge.  The individual mandate has always been a moot point.

Back in 2016, I wrote a post, The Health Exchange Transformation Is Almost Complete, in which I made the argument that the individual health exchange had a better chance of reverting back to a high-risk pool exchange than a market-based exchange. It all depended on the affordability of health insurance for unsubsidized healthy customers. If you do not keep your best customers, the government will be left holding the bag. When it comes to the individual mandate, the people who wrote the ACA were not that smart. The most important thing that matters to a customer who might get penalized is not the penalty but affordable unsubsidized health insurance. Affordable health care has always been the primary objective of the Affordable Care Act and the American people. Our politicians seem to have forgotten that aspect of the ACA. If the individual mandate has always been a moot point then severability has always been a moot point, too.

A Federal judge ruled that the Affordable Care Act is unconstitutional and I am not sorry. The Affordable Care Act has always been a bunch of dumb ideas that were poorly implemented. The only way the Affordable Care Act would be a “good first step” at reforming health care is if it provided affordable health care costs for everyone.  The Affordable Care Act has always been a great deal for doctors, hospitals, drug companies, and health insurance companies. It was a great deal for those who will never pay enough into the system to cover their health care. For the rest of us who pay for our health care costs, it didn’t provide a path to affordable health care costs. For healthy people buying health insurance in the individual health insurance market, the Affordable Care Act has always been a failure. There has never been a greater condemnation of the Affordable Care Act than healthy people opting out of the health insurance.

The health care industry has always been a hotbed for cronyism. So while those of us who pay for our health care struggle to find a way to pay for the same old insurance at a much higher price, the Affordable Care Act supporters have been doing their touchdown dance with their industry friends. The trouble with the Affordable Care Act is that you eventually run out of other people’s money and the only path forward is to focus on health care costs. The party is over!

It was not that long ago that there was general agreement amongst the health care policy wonks that the “mandate was considered necessary for the market to work“. In reality what they meant to say was that the market needed both the individual mandate and affordable, unsubsidized health insurance to work. The Affordable Care Act(ACA) supporters realized that they could not deliver expanded benefits and affordable, unsubsidized health insurance. Expanding benefits was more appealing to their political base so they chose to kill the one thing that was essential for the market to succeed, affordable health insurance. So while the individual insurance market rotted away our courts debated whether the individual mandate was a “penalty” instead of a “tax” while maintaining that it was a valid exercise of Congress’s power to “lay and collect taxes”. The idea that the individual mandate was not as important as everyone claimed must be a grating reminder to Supreme Court justices like Justice Roberts who went out of his way to rationalize its legality. I wonder if the Supreme Court Justices learned anything from this exercise in futility.

The Irony of Repealing The Individual Mandate As Part Of A Tax Cut Package

Now after the ACA has blown up the individual insurance market, our legislators find themselves in a strange predicament. They cannot pass a health reform bill but they can pass a middle-class tax cut if they repeal the individual mandate. You got to love the idea of the nonpartisan Congressional Budget Office providing the intellectual foundation for repealing the individual mandate. What’s next? Repeal the Medicaid expansion because it would save the federal government even more money? According to their analysis, the primary source of savings comes from reduced subsidies due to healthy people leaving individual health insurance market. Avik Roy has more details in his Forbes article, How The CBO Drove Obamacare’s Individual Mandate Repeal Into Tax Reform. Although this sounds like a win-win situation, there are health insurance problems when you repeal the individual mandate. Robert Laszewski goes as far to call it a nightmare for the middle class. Then he backs off from this statement when he agrees that the repeal is good for the poor and healthy people. For the poor struggling with out of pocket costs, this is probably a better alternative than insurance. The group Mr. Laszewski says has the greatest risk are those healthy people whose income is greater than 400% of the Federal Poverty Level, who get sick, and do not have the money to pay for their illness. This sounds scary but for most major medical expenses, the combination of unaffordable health insurance and high deductibles puts this group in a more precarious financial position than going without health insurance. Earlier this year I wrote how we reduced the risk of this lesser evil.

In 2015 my wife and I came to the conclusion that the healthcare industrial complex would not willingly change their ways so we started building up our HSA. At the end of 2016, I asked our insurance company if they would offer me a lower rate. They declined and we chose to drop our health insurance. The markets are working, the customer has spoken, and our health policies are dysfunctional. Although we are nervous about our choice, we think we can do a better job managing our health care than the healthcare industrial complex. It is amazing how fast the money builds up when you divert your old health insurance premium amount into a savings account. I am mildly optimistic we can get better health care advice for non-emergency room treatments if we tell our health care providers that we are a cash customer.  Every month we get by without a cancer diagnosis makes us a little more confident we made the right decision. If the insurance companies want us back all they have to do is show us an affordable health insurance plan!

In retrospect, we are a lot more comfortable with our decision now than when we started. We stuck to the plan and our emergency funds are in better shape. We are confident enough about our health that I am not sure an “affordable” health insurance plan could lure us back in. The only healthcare benefit we wish we had was the ability to add more money to our Health Savings Account.

In a recent opinion piece for the New York Times, Governor Kasich argued that the way forward for health care reform is more government spending. He says:

One vital improvement would be to provide adequate tax credits, which would help keep health plans in the individual market and encourage — not undermine — robust competition. Companies should also be required to continue following reasonable guardrails like ensuring minimum coverage that is genuinely useful and covers pre-existing conditions. Once we see these repairs taking hold, Congress should then take up needed improvements to Medicaid as part of comprehensive entitlement reform.

Health Care Reform Starts With Controlling Health Care Costs

The problem I have Governor Kasich’s argument is that he ignores the elephant in the room, health care costs. I can understand how the federal subsidies have benefitted hospitals, doctors, pharmaceutical companies, and insurance companies but not the consumer. Each of these groups publicly stated they were going to make health care bigger, better, faster, and cheaper. I don’t see it happening. Kasich is arguing that the health insurance markets will get better if we throw more government money at them. This is the exact same argument ACA supporters have made for the last eight years. The failure of the ACA to control costs tells us we need a different strategy if we want a different outcome. After eight years of using a carrot to encourage health care reform, maybe it is time to use the stick.

Thinking Outside Of The Box Idea Number 1 – Repeal The Individual And Employer Mandate

One of the things I learned over the last couple of years is that the individual mandate is not necessary or important. Although the ACA supporters argued in the Supreme Court that it was necessary to avoid a death spiral in the health exchanges, the consumer is largely unaffected by premium increases. It is the federal government who bears the brunt of the cost increases since the consumer’s portion is limited to 8.13% of their income. Why will the consumer leave the exchange if their payment stays the same? The primary purpose of the individual mandate was to keep unsubsidized, healthy people in the exchanges. The lack of affordable health insurance forced healthy people to evaluate their health care options. They voted with their feet.

If our politicians really wanted to help the American people by putting more money in their pocket, the simplest solution is to repeal the individual mandate. In a letter to members of Congress, IRS Commissioner John Koskinen said about 6.5 million Americans paid an average penalty of $470 for not having health insurance in 2015. Ironically these Americans are the group who can least afford the penalty. As health insurance continues to get unaffordable for more people, we should expect that fewer people will be required to pay the penalty. If the government continues to get less and less money from this penalty, maybe we should admit that the individual and employer mandate are not working and never will. This would be a great time for both parties to join together and get rid of both mandates.

I posted this comment to David Henderson’s article When You Lose Something You Don’t Want, Is that Really a Loss?

Last December we decided to drop our health insurance. Our reasoning was pretty simple. Which would make us feel more financially secure, health insurance or an extra $7,500 per year in a savings account?

We did think it through. My wife and I have not filed an insurance claim in over twenty years. We are the perfect health insurance customers so why not take advantage of our good health?

1. Since 2011 our health insurance has increased 13% annually. Medical cost inflation was around 5% annually over the same time period. It sure looks like the health insurance companies were raising rates because they thought they could get away with it.

2. The lowest cost bronze plan for my wife and I exceeds 8.13% of our income. It also was considerably more expensive than our grandfathered health insurance plan which also failed the affordability test. Even though the lack of affordable health insurance makes us exempt from the individual mandate, we are reminded that the ACA failed at its most important mission, affordable health care. When will the ACA or the AHCA start working on this problem?

3. For most of my life, I thought that health insurance was a no-brainer. The ACA completely reversed my position. I no longer believe that giving more money to the healthcare industry is beneficial or compassionate. Although some people maintain that health insurance is the same thing as healthcare, this insularity to healthcare costs bothers me. The politics of the situation has made it easier for the healthcare industry to ignore better-valued healthcare options. As an example when I asked my insurance company for a lower price, they said, “we do not do that”. They could not seem to grasp that healthy people do not want health insurance the same way unhealthy people do. Healthy people tolerate the cost of health insurance up to a point and then they start looking at alternatives in the same way they might change auto insurance. Healthy people are different and the health insurance exchanges are not sustainable without them.

4. How do we send a message to the healthcare industry? Our choice has been to hit them in the pocketbook. We are not trying to be heroes. Their loss is our gain. Every month my wife and I get by without a major medical expense, we win and they lose. It takes only a few months of savings to cover the AHCA pre-existing illness penalty. After a year or so we are in pretty good shape to cover most major medical expenses outside of cancer. At some point, the insurance companies will realize that chasing away their best customers is bad for business.

One of my Affordable Care Act pet peeves is the claim that it is saving us money. As an example Fortune said it this way in the article, U.S. Will Spend $2.6 Trillion Less on Health Care Than Previously Estimated.

The United States will save about $2.6 trillion on health care expenses over a five-year period compared to initial projections made right after the passage of the Affordable Care Act.

Cost Savings Or A Bad Estimate

The trick to understanding the Affordable Care Act cost savings is the qualification, “than previously estimated”. If there are actual health insurance savings than we should see the cost curve bend. When we use 2011 as our benchmark health insurance inflation metrics tells us a different story. The cost curve did not bend. Health insurance inflation was largely unaffected.

My Health Inflation

After listening to Episode 49 Obamacare Sinking? Why, It’s Just a Flesh Wound, Says Krugman! I felt compelled to add my two cents.  Although I have not written about the Affordable Care Act in a long time I have not given up hope for meaningful health care reform. Just last week after a little prodding from Ross Kohler of ZaneBenefits I sent emails to my senators asking for their support for The Small Business Healthcare Relief Act [H.R.5447/S.3060].  The odds of it passing are up to 39% on govtrack.us! I remain optimistic for healthcare reform in the same sense as Jonathan Tepperman is optimistic in his TED talk, The Risky Politics Of Progress. He lays out a framework that worked for several previously intractable issues. I am afraid that with this issue we will have to wait for the collapse of the health exchanges before we will find the political motivation to make meaningful bipartisan changes. Think of it as the first step in a Twelve-step program for health care reform.

My comment to Episode 49.

As a middle class person who was hurt by the Affordable Care Act I was disappointed that Mr. Krugman did not reach out to the middle class with some better ideas. My annual health insurance premium went from $3,732 in 2011 to $6,564 in 2016. The lowest cost bronze plan for 2016 was going to cost me $12,300. I do not need a Nobel prize in economics to figure out that I am much worse off in 2016 than I was in 2011. For a person who has not filed a health insurance claim in this century, I lay the blame on the Affordable Care Act.

Since it is highly likely that my grandfathered health insurance plan will not be available to me in 2017, next year I am confronted with an interesting dilemma. The IRS says I should spending no more than 8.05% of my income on health insurance. That means the lowest cost bronze plan will be affordable for when I start earning $152,795. Sadly I am not earning anywhere close to that number. In an ironic twist since there are no health insurance plans available from the exchange that are affordable to me, it appears that the Affordable Care Act is recommending that I should be uninsured and enjoy my exemption from the individual mandate. I am not sure which universe Mr. Krugman is living in but the lack of affordable health insurance in the exchange is more than a bump in the road to the average middle class person. For the first time in my forty year career I will not have affordable health insurance available to me. Is this the Affordable Care Act good news Mr. Krugman was referring to?

Here is a nice story about the Cadillac Tax provision of the Affordable Care Act. Although I am not affected by the Cadillac Tax I found the video clips of Mr. Gruber and Mr. Emanuel to be particularly insightful at explaining why lying and deception was necessary to pass the Affordable Care Act. Since most of America expected that passing the Affordable Care Act would result in more affordable health care, it would have been wiser if these two men spent more of their time thinking of ways slow down health care cost increases rather than gloating over how they pulled one over on the American public.

As I have said in the past unless health insurance exchanges changed their ways and started to offering affordable health insurance to the un-subsidized healthy people they were going to morph into high risk pools. It appears that Brian Blase and I agree on this matter. In a recent article posted on Forbes and the Mercatus Center he highlights some of the problems that are worth repeating, enrollees are poorer, enrollees are  older, and un-subsidized healthy people are not signing up.

Takeaway #2: Enrollees Skewing Much Poorer Than Expected 

The table below shows enrollment by income group in 2015 and 2016 contrasted to the Urban Institute’s projections of 2016 enrollment made in January 2015. The table shows that exchange enrollees are much poorer than Urban expected. Other groups, including CBO and Rand, also made large errors with this projection. For example, when the law passed, Rand projected that nearly half of exchange enrollees would be unsubsidized when the law was fully implemented.

 

As a healthy person who is exempt from the individual mandate because I cannot purchase health insurance from the exchange for less 8.05% of my salary, I have indicated that I will go without health insurance in 2017 because saving the equivalent of my 2016 insurance premium into a savings account gives me better bang for my healthcare buck than paying exorbitant premiums for insurance I will unlikely use when it has a $10,000 deductible. With the lowest cost 2016 bronze plan costing $1,025 a month, this is up 78% over my 2016 grandfathered plan and 229% over my 2011 premium of $311. Not surprisingly Brian says it differently but the result is the same.

Unless people receive extremely large subsidies or have very expensive health conditions, buying exchange plans generally makes them worse off than remaining uninsured. As a result, the exchanges appear to be morphing into high risk pools for people with income less than twice the FPL. Simply put, it now appears that there is a significant risk that the ACA, without major change, may lead to the destruction of the individual market for health insurance.