Staci Doolin, a beneficiary of Blue Cross Blue Shield of Illinois (BCBS), sought care from a primary health care[1] physician.[2] To confirm that the provider was in-network, Ms. Doolin both consulted the plan[3] website and spoke on the phone with BCBS customer service.[4] After BCBS confirmed that the primary care physician was in-network, Ms. Doolin visited the physician she found on the directory, but BCBS later denied coverage of her $500 visit.[5] Ms. Doolin contested the denial for coverage for nine months and was harassed by debt collectors.[6] While she eventually settled her claim, Ms. Doolin never received full reimbursement.[7]
Ms. Doolin’s frustrating encounter is an underdiscussed issue that is still prevalent despite the enactment of the Patient Protection and Affordable Care Act (ACA).[8] In light of many issues that consumers faced in obtaining affordable health insurance, Congress enacted the ACA[9] to ensure that all Americans have access to health care.[10] In addition to expanding Medicaid,[11] the ACA created government exchanges to offer health plans to people without other means of health care coverage.[12] Despite the ACA’s expansions, much of the information via provider directories, which consumers rely on to understand available and affordable care, is incorrect, outdated, or misleading.[13] This provider directory misinformation both leads consumers to purchase plans not in their best interest and leaves beneficiaries with large, unexpected bills for out-of-network service after being led to believe that the provider was in network.[14]
Much of the outdated information stems from the increased popularity of online provider directories, which is convenient but counterproductive if the information is incorrect.[15] These consumers justifiably rely on these online directories to be updated regularly, but they subsequently reasonably rely on inaccurate information to their detriment.[16]
This Note both considers misinformation in provider directories as a systematic problem within the current health insurance industry and proposes amendments to federal legislation and regulation to correct course. The Note will proceed in three parts. Part I will discuss current laws under the ACA, the subsequent regulations, and the impact these implemented policies have across various states. Part I will also examine limits of the current framework, the impact on consumers that rely on plans’ published information, and the prevalence of misinformation across provider directories in today’s market. Part II identifies two fundamental reasons for the continuing prevalence of plan misinformation within provider directories: (1) minimal scope of protection, and (2) lack of enforcement. Part II first assesses why self-funded[17] plans do not provide consumers with protections and analyzes the impact that this failure has on most consumers. Part II then identifies how, despite the regulations that are in place, lack of enforcement allows fully-insured[18] plans to avoid accountability in publishing inaccurate provider directory information. Finally, Part III proposes amendments to the ACA and the Code of Federal Regulations (C.F.R.) to hold plans accountable and mandate consistent updates in information provided to consumers. The proposed amendments will protect all insured beneficiaries including those enrolled in self-funded plans and mandate that the Department of Health and Human Services (HHS) implement subsidies for states that develop periodical audit and enforcement procedures to minimize directory misinformation.
A. Enactment of the Affordable Care Act
By the end of the twentieth century, many individuals faced crippling medical costs and were forced to choose between bankruptcy or serious health consequences.[19] By the early twenty-first century, about one in four Americans either lived without insurance, or, despite being insured, spent a large portion of income on health care.[20] Not surprisingly, the population least likely to be insured fell below the poverty line.[21] In many circumstances, individuals could not afford coverage primarily because insurers charged higher premiums to individuals with various health problems—even when health problems arose after the individual enrolled.[22] The most glaring problem prior to the enactment of the ACA was the insurers’ ability to discriminate against individuals with pre-existing conditions,[23] either by imposing crippling premiums or by denying coverage altogether.[24]
In response, Congress enacted the ACA in 2010 to expand health coverage to millions of individuals not previously insured.[25] Health care access was provided through both expansion of Medicaid and creation of “exchanges,” which offered health insurance plans to individuals without previous access to coverage.[26] The ACA departed from past processes by both simplifying enrollment and coverage and by prohibiting insurers from determining premiums based on a person’s previous health record or pre-existing conditions.[27] Despite the ACA’s creation of specific regulations surrounding individual insurance, it did not create a universal health care system in line with many European countries.[28] Under the ACA, for-profit insurance companies continued to provide coverage for most employers (and by extension, most employed individuals).[29]
B. The Affordable Care Act Accountability Provisions Regarding Disclosure of Information
Despite efforts to afford all Americans affordable health insurance, enactment of the ACA sparked political debate and dispute over the constitutionality of the Individual Mandate,[30] the Employer Mandate,[31] and exchanges[32] on the federal marketplace.[33] While there was well-known need for reform, the popularity of the ACA was fairly low,[34] in part because of the concern that the ACA’s policies invaded Americans’ individual autonomy to choose whether to seek health insurance, and if so, where to get it.[35] Many critics, including many members of the Supreme Court, saw these policies as unconstitutional congressional overreach.[36] For example, in National Federation of Independent Business v. Sebelius, a greatly divided Court[37] debated the constitutionality of the Individual Mandate.[38] In that case, Chief Justice Roberts, for the majority, held that Congress may impose an Individual Mandate pursuant to its taxing and spending power under Article I § 8 of the Constitution.[39] That said, four justices dissented, arguing that because the Individual Mandate outwardly labeled the payment a penalty, that unconstitutionally prohibits and regulates activity reserved for the states.[40]
While debates continue, certain ACA provisions that focus on accountability of insurers are far less scrutinized because they provide mechanisms and methods to fix the American health care system.[41] The provisions hold insurers accountable by banning rescission of coverage based on lifetime limits, mandating minimum essential coverage, and requiring a consumer appeals process.[42] These provisions aim to provide more transparency between the government, individual consumers, and insurers.[43]
These less-scrutinized primary accountability protections fall under Chapter 157: Quality Affordable Health Care for All Americans, Subchapter III: Available Coverage Choices for All Americans.[44] Within Subchapter III, § 18031 requires all insurers to disclose eight categories of information to the public to fill previously existing information gaps and advance “regulators” understanding of private insurance.[45] Access to this information allows regulators to identify discriminatory practices within insurance plans.[46] However, § 18031 does not require that insurers maintain an up-to-date and accurate provider directory that discloses either (1) whether a listed provider is in-network, or (2) whether the provider is taking new patients.[47] A separate provision requires insurers offering a “small employer or an individual” coverage to publicly report data regarding coverage and to adequately inform consumers of what insurance plans they are purchasing.[48] This provision—titled Disclosure of Information—does not explicitly prohibit plans from producing provider directories with incorrect or out of date information, but rather imposes a general requirement that all insurers provide “reasonable disclosure” to plan beneficiaries regarding the status of the plan’s in-network providers.[49] Thus, the ACA on its own does not explicitly require that provider directories be updated regularly but indicates the need for “reasonable disclosure” by plans to consumers.[50] The specific mandates and enforcement tactics are delegated to federal agencies.[51]
C. Delegation to Federal Agencies
As the ACA disclosure provisions create only general mandates, Congress grants broad authority to the HHS Secretary to “promulgate such regulations as may be necessary.”[52] From this delegation, both Title 42 and Title 45 of the C.F.R. require certain minimum standards for consumer access and reliability of provider directories.[53] Within these titles, certain provisions distinguish between types of health plans, clarifying each plan type’s strength of consumer protection from misinformation.
Title 42 of the C.F.R. provides certain requirements for any health plan facilitating a Medical Assistance Program.[54] Within the regulations, HHS mandates that all Medicaid service plans maintain online and paper provider directories that contain relevant and accurate provider information.[55] Every thirty days, the service plan is required to update provider information and inform beneficiaries of any changes to provider status.[56] For Medicare specifically, the Centers for Medicare and Medicaid Services (CMS) requires disclosure of the number of providers available for care[57] and maintenance of a network of appropriate providers that will provide adequate coverage to beneficiaries.[58] In a guidance document, CMS clarified that these mandates require Medicare Advantage Organizations (MAOs) to maintain an online provider directory that is updated to clarify whether the provider is taking new patients and/or whether the provider is no longer contracting with the MAO.[59] As a result, both Medicaid and Medicare plans follow a similar set of requirements that mandate plans to monitor and update information regularly.[60]
While Medicare and Medicaid beneficiaries comprise one-third of American citizens,[61] the remaining population’s benefits are not protected by Title 42’s disclosure requirements.[62] Rather, HHS enumerates regulations related to individual Qualified Health Plans (QHPs) and private employer-sponsored plans under Title 45’s Subchapter B, titled Requirements Relating to Health Care Access.[63]
One new aspect of the ACA was the creation of exchanges that provide plans for individuals, families, and group businesses.[64] Individuals purchase QHPs via the exchange through either the federal or a state marketplace.[65] While not considered within the confines of Medicaid or Medicare Managed Care, QHPs follow similar levels of regulation for mandatory online provider directories and disclosure of information in changes of provider status.[66] Specifically, all QHPs must update provider directories and ensure directories are: (1) available online[67] and (2) inclusive of information about a provider’s ability to accept new patients.[68]
Federal provider directory maintenance requirements applied to Medicaid, Medicare, and QHPs do not protect Americans who acquire insurance through employer-sponsored plans.[69] These private plans, called private group plans,[70] vary in affordability and coverage.[71] Historically, larger companies have had more ability to offer employees private sponsored plans than smaller companies.[72] This is because, despite guaranteed issue of insurance to small groups,[73] insurers in many states still underwrite the employer based on risk.[74] Even if a smaller group has healthy individuals, having less employees creates a less stable risk pool because it becomes more likely that an employee will get sick.[75] Further, because small employers have less revenue to offer when bargaining contracts with insurers, brokers and agents charge small employers higher commissions than larger employers who bring more revenue to the insurer.[76]
The ACA’s Employer Mandate requires all Applicable Large Employers (ALEs)—employers with more than fifty employees—to either provide affordable health insurance to employees or pay a penalty.[77] Despite the Employer Mandate’s requirement for affordable insurance, ALEs and other private employer group plans are not subject to any of the federal disclosure requirements that protect public beneficiaries from misinformation in provider directories.[78] The ACA does not apply the Employer Mandate to small employers.[79]
One exception to the inapplicability of provider directory regulation on employer plans is the Small Business Health Option Program (SHOP), a plan created under the ACA to incentivize small employers to provide health insurance to employees..[80] Small business employers, similar to individuals seeking QHPs, purchase SHOP plans through government sponsored exchanges.[81] SHOP incentivizes small employers otherwise unwilling to spend high costs on employee coverage through tax credits.[82] As Title 45 explains, unlike private employer plans, SHOP follows the same disclosure and provider directory requirements as plans on the individual marketplace.[83] As such, any group plan registered through SHOP benefits from tax deductions but has the responsibility to provider directories in accordance with the thirty-day timeline established in the C.F.R.’s regulations on QHPs.[84]
Group plans not purchased through SHOP must adhere to regulations within Part 146 of Title 45, Requirements for the Group Health Insurance Market.[85] Unlike regulations applicable to Medical Assistance Programs, QHPs, and SHOP plans, federal regulations pertaining to private group plans do not include explicit requirements about provider directory misinformation or updated network status information.[86] That said, many states have individually promulgated legislation that extends requirements of QHPs and SHOP plans to private group plans.[87]
Beyond the distinction between small and large plans, group plans are further broken into categories known as fully-insured or self-funded.[88] Fully-insured plans consist of the traditional model: an employer purchases a health plan from an insurance company.[89] Employers of self-funded plans collect premiums directly from employees and pay for covered employee medical costs on an as-needed basis.[90] The employer typically contracts with a Third Party Administer (TPA) to enroll, facilitate, and provide customer service to the beneficiary.[91] In other words, with self-funded plans, the employer maintains a bank of money from employee premiums and pays for care out-of-pocket as needed.[92] TPAs facilitate the plan by providing access to claims processes, prescription drug plans, and provider networks.[93] The role that the TPA plays, however, is deceiving because many insurance companies also act as TPAs.[94] When an insurance company acts as the TPA on behalf of the employer, beneficiaries receive insurance cards and speak directly with what seems like the direct insurer.[95]
While it is difficult to tell whether a plan is fully-insured or self-funded, one major distinction creates less protections for self-funded beneficiaries: fully-insured plans must follow state law, but self-funded plans are exempt from state regulations.[96] Under the Employee Retirement Income Security Act (ERISA), self-funded plans are exempt from state insurance laws, including consumer protection requirements.[97] Thus, while basic disclosures within § 18031 provide the public with top level transparency, detailed information pertaining to self-funded plans remains inaccessible.[98]
The ACA and C.F.R. address the minimum protections for beneficiaries and requirements for health insurers.[99] Further, the current federal statutes and regulations do not provide a specific enforcement process for misinformation.[100] Thus, states are expected to individually audit and enforce compliance by the insurance companies.[101] That said, the federal laws and regulations establish the floor so that if an individual state does not adopt its own policies and regulations, the C.F.R.’s guidelines serve as the default mandate for insurers to follow.[102] A large number of the states did not invoke individual legislation, choosing to instead rely on default rules rather than to create more robust state regulations with specific enforcement policies.[103]
Some states enacted legislation with specific requirements for plans to update plan directory information regularly.[104] For example, New York’s Insurance Law requires that all insurers supply a list of providers on the website and update the website every fifteen days.[105] New York not only mandates that insurance plans make updates more frequently, but it also includes an additional provision permitting the superintendent to issue penalties when an insurer violates the rules within the state’s Insurance Law.[106] California has also been at the forefront of misinformation regulation, providing specific provisions mandating accuracy of provider directories[107] and means of enforcement for misinformation.[108] California has additionally demonstrated leadership in enforcement by actually imposing penalties on insurers.[109]
E. Prevalence of Misinformation in Provider Directories and Limits on Regulating
Despite the regulations put in place, directory misinformation is still very prevalent throughout all types of plans.[110] For example, a “secret shopper” survey of primary care providers from five of California’s nineteen insurance marketplace pricing regions found that consumers were able to schedule an appointment with an initially selected provider less than thirty percent of the time because providers listed on their directories were: (1) not reachable due to incorrect contact information, (2) no longer taking new patients, or (3) no longer accepting the beneficiary’s plan.[111] Additionally, in a CMS report, forty-five percent of provider directory information for Medicare Advantage plans was incorrect.[112]
Consumers also reported multiple cases of outdated provider information of which they were unaware.[113] In Florida, for example, beneficiaries reported that doctors listed in plans’ provider directories refused to accept the beneficiary’s insurance.[114] Further, a New Jersey plan listed itself as available to residents throughout the whole state, but the only hospital accepting the plan was in the southern part of the state in its network.[115] This omitted detail created difficulty for many beneficiaries in the northern part of New Jersey seeking emergency hospital care.[116] Finally, in an online surprise medical bill[117] survey of 2,200 adults, Consumer Reports found that one-third of respondents with privately held insurance reported receiving a bill where the insurance plan paid less than expected or not at all.[118] This results in an inability of beneficiaries to obtain necessary care and the potential of crippling bills without a robust system to appeal.[119]
Individuals have personally complained about the prevalence of misinformation and its impact on their lives.[120] The following case study recounts the personal story of a complainant in New York, illustrating the impact that misinformation can have on an individual beyond mere inconvenience.[121]
Mr. Smith,[122] a New York resident, sought care after having severe pain in his back related to a diagnosed health condition.[123] Mr. Smith’s plan was fully-insured through his employer.[124] To address his health condition, Mr. Smith sought a provider within his insurance plan’s (Plan X) in-network facility to get medical service.[125] He contacted Plan X, requesting confirmation that the medical service for his back pain would be deemed medically necessary and that a directory of in-network providers be sent to him.[126] In response, Plan X mailed Mr. Smith a letter from its Care Coordination Unit, which confirmed Mr. Smith’s medical service would be covered provided the service was performed within forty-five days.[127] From the directory, Mr. Smith found a provider listed as in-network.[128] Prior to Mr. Smith’s appointment, he called the provider listed to check the network status.[129] The receptionist and the provider confirmed the facility accepted Plan X.[130] After receiving the care, however, Mr. Smith received an explanation of benefits (EOB) that stated that benefits would only be covered at the out-of-network rate because the provider was determined to be out-of-network.[131] Mr. Smith then received a bill for over $1,000.[132] Mr. Smith sought multiple internal appeals through his insurance plan, however Plan X upheld its decision to not cover the bill.[133] In response, Mr. Smith was forced to file an official grievance with the New York Attorney General to receive coverage for his care.[134] Given the robust representation from a designated health insurance consumer assistance program, Mr. Smith had the rare fortune of getting his bill covered, however, Plan X received no additional penalty.[135]
Mr. Smith, like Ms. Doolin,[136] was assured his care would be covered, but later faced unexpected and potentially crippling costs due to the reasonable reliance he placed in his insurance company.[137] This unfortunate reality is more common than one would expect.[138]
Mr. Smith’s situation highlights many deficiencies in regard to provider directories and misinformation. First, Mr. Smith’s care did not get covered until after he received multiple denials and claims from collections agencies.[139] Additionally, if Mr. Smith did not have representation, he—like most individuals—would feel the need to pay right away given lack of clarity on the ability of individuals to appeal denials of coverage.[140] Further, because Mr. Smith had requested that a formal directory be sent to him, and the directory included the provider’s information, he had written proof of misinformation.[141] Most consumers, however, do not have such proof, and therefore are less likely to successfully appeal their claims.[142] Finally, Mr. Smith was able to file an external complaint to the Attorney General in New York because his plan was fully-insured.[143] However, if Mr. Smith’s network was through a self-funded plan, he would have had no case at all because N.Y. Insurance Law § 4324 (like all state insurance laws) only encompasses fully-insured plans.[144]
Provider directory misinformation remains prevalent in large part for two reasons: (A) lack of protection, which creates little incentive for consumers to report misinformation;[145] and (B) lack of enforcement, which limits any incentive plans would have to invest in action plans to periodically and effectively update directory systems.[146] This Part will look at why current regulations have such loopholes, and how they impact beneficiaries today.
A. Regarding Protection: The Need to Encompass Self-Funded Plans Within the Protections Under the Code of Federal Regulations
Current regulations do not adequately protect the majority of the American population, and as a result, despite the regulations’ apparent efforts, many citizens do not have the legal right to report directory misinformation.[147] There are many gaps in protections that perpetuate underreported cases of misinformation,[148] however, this Note will discuss one of the most blatant gaps in protection: the fact that misinformation mandates only apply to fully-insured plans.[149]
According to a recent study, sixty percent of covered workers are in a self-funded health plan.[150] The study indicates that, for companies of 200 or more employees, about seventy-nine percent of plans are self-funded.[151] This begs the question: why do employers tend to opt for self-funded plans? Employers may choose fully-insured or self-funded plans for a multitude of reasons.[152] For example, fully-insured plans tend to have less cost variances month-to-month, so a company with less dispensable income may opt for consistent expenses to rely on when planning yearly budgets.[153] Self-funded plans, on the other hand, typically save companies money in the long run because they need only pay when an employee seeks treatment.[154]
Self-funded plans are also less expensive due to the ability to avoid compliance with state-mandated benefits.[155] The federal government does not regulate group plan directories, subjecting only government-sponsored plans to federal regulation (Medicaid, Medicare, and QHPs).[156] That said, many states, such as New York and California,[157] have expanded regulations to subject group plans in their states to provider directory requirements that mirror QHPs and Medical Assistance Program requirements under the C.F.R.[158] Such expansion is limited, however, to fully-insured group plans because ERISA exempts self-funded plans from state level laws and regulations.[159] This loophole exempts self-funded plans through private employers from most state insurance laws, including consumer protection regulations.[160] As such, self-funded plans have no obligation to adhere to the disclosure requirements provided in state law.[161] Therefore, if a beneficiary of a self-funded plan falls victim to misinformation, the plan is not held accountable for lack of transparency regarding covered providers within the network.[162]
Despite the seemingly robust protections of consumers around disclosure and misinformation, more than half of the employed American population is not granted the detailed provider directory protections.[163] Employers, given the large costs of compliance, may choose to use self-funded plans and, as a result, avoid regulation.[164] With this lack of protection, millions of Americans are left subject to the discretion of their employers’ pocketbooks.[165] Further, most beneficiaries do not even know that they are signing up for a plan with fewer protections because the differences between self-funded and fully-insured plans are difficult to discern.[166] Thus, employees sign up for plans reasonably believing that they are entitled to the protections of their state extensions to the ACA, only to be told of limits under their plan upon being denied coverage or access to a provider in their area.[167]
B. Regarding Enforcement: The Need to Hold Plans (and Providers) Accountable for Misinformation
The CMS Guidelines are to be followed by not only Medicare and Medicaid plans, but also by QHPs.[168] With regards to sanctions, the C.F.R. provides some guidance for non-compliance by Medicare and Medicaid plans.[169] Sanctions specifically for QHPs are not enumerated in the C.F.R. and are therefore promulgated by individual states.[170] However, as mentioned, twenty-one states do not enumerate individual requirements and follow the basic CMS Guidelines mandating relevant and accurate provider information without clear penalty.[171] Thus, even if the mandates are present, the current regulations suffer from lack of enforcement.[172] This lack of enforcement limits any incentive plans would have to periodically and carefully update provider directories.[173]
To give backing to laws, legislatures need enforcement through either “carrots” (reward) or “sticks” (punishment).[174] While legal theorists often focus on enforcement in terms of incentives and deterrents,[175] psychologists also analyze this principle, asking why individuals feel compelled to act in accordance with laws so as to avoid punishment.[176] One of these psychological theories—operant conditioning—stems from Edward Thorndike’s Law of Effect Principle.[177] Under Thorndike’s theory, people will repeat any behavior that results in pleasant rewards, while they will cease to perform behavior that results in punishment.[178] Stemming from these principles, B.F. Skinner developed the theory of operant conditioning.[179] Operant conditioning builds on the Thorndike Law of Effect Principle by adding an additional focus of reinforcement.[180] Instead of simply looking at the correlation between consequences and repetition, Skinner proved that an individual in fact associates behaviors and consequence. Such association creates the “reinforcement” or “extin[ction]” of an action, depending on the response.[181] As seen throughout history (and correlated to Skinner’s theory of operant conditioning), no matter how protective a law is, it will do nothing without enforcing penalties.[182]
Thomas Hobbes also rationalized that people comply with laws “because someone else makes them.”[183] This theory has evolved with time, as many people, groups, and countries also follow domestic laws or international treaties not only out of power, but also out of “self-interest.”[184] In essence, as modern economics and societies develop, corporations and employers weigh the costs and benefits of abiding by government-imposed regulations and decide that following regulations by producing safer products, paying sustainable wages, and implementing better conditions are better practices for the company’s self-interest than attempting to maintain cheaper costs by avoiding regulations.[185]
Regarding insurers, if plans do not feel any risk of fines or punishment for non-compliance, they will not feel a need to periodically update directories.[186] Today’s system does not instill such apprehension, so plans have not adjusted their practices to benefit consumers.[187] Based on the theory of operant conditioning, plans would be more likely to update information if they apprehended penalization for not complying.[188]
California sets an example of a state that has enacted enforcement into its bureaucracy, as it implemented laws to hold insurers accountable[189] and created avenues of enforcement to incentivize insurers to follow the laws.[190] California’s Health and Safety Code mandates that the state director audit and enforce misinformation by fining the responsible party for its negligence and/or recklessness.[191] Even more distinct is California’s creation of a specific division dedicated to reviewing provider networks.[192] In Brown v. Blue Cross of California, the California Department of Managed Health Care (Cal. DMHC) found that Blue Cross violated state law by misleading consumers about the size of the provider network.[193] After receiving many consumer complaints, the Cal. DMHC performed a survey in which it found that (1) thirteen percent of the directory had incorrect location listings, and (2) thirteen percent of providers included were not taking new patients.[194] As a result, the Cal. DMHC concluded that the provider directories had significant errors in the provider listings.[195] As a result, the state fined Blue Cross $350,000.[196] This number is small in comparison to the company’s net income of $296,000,000.[197] Yet, in alignment with the theory behind operant conditioning, the mere action of enforcement creates incentives for insurers to avoid future fines by taking more care in vetting the currency of their provider directories.[198] That said, enforcement in states like California and New York, while existent, is rare and mild compared to the breadth of misinformation within provider directories.[199]
III. Proposal: Amending Regulations at the Federal Level to Streamline Protections and Effect Compliance Through Enforcement
Because the purpose of the ACA was to provide affordable health care to all Americans,[200] and because Congress delegated enforcement of this purpose to HHS,[201] it follows that HHS has not adequately executed the tasks Congress delegated because it chose to only apply disclosure requirements to public plans.[202] Even if legally HHS is not required to extend provider directory protections to all Americans, the fundamental policy value of fairness must step in when the law does not provide protection.[203] To streamline provider directory misinformation protections: (1) federal regulations should be amended to require that all group plans—both fully-insured and self-funded—meet the same disclosure requirements imposed upon Medicaid plans, Medicare plans, and QHPs; and (2) Congress, through subsidy programs, should incentivize state governments to implement strict enforcement penalties on insurers that do not follow the mandated disclosure rules.
A. Mandating Broader Scope of Protection
Employers often avoid state regulation by opting for self-funded plans.[204] Insurers should not be able to contract around government regulation on plan transparency, as doing so would undermine the ACA’s purpose: to provide all individuals with affordable health care options.[205] By only having protections in place for some Americans, the purpose of the ACA falls short because many individuals are left without the intended protections from crippling out-of-network medical bills.[206] Each insurance provider should be required to create and periodically update provider information to ensure that all insured Americans, including those enrolled in self-funded plans, are able to obtain affordable health care without the fear of being misinformed about the breadth and scope of coverage. As such, federal law should mandate disclosure across all plans, expanding requirements to self-funded plans.
To truly ensure that all Americans have access to accurate information about their providers, the C.F.R. provisions that apply to group plans should include similar language to the provisions that apply to QHPs and Medical Assistance Programs.[207] To align with such requirements, 45 C.F.R. Part 156 should include a section titled: Information requirements. The section would include the following language:
(a) Provider Directory.
(1) Each plan, fully or self-insured, must make available in paper form upon request and electronic form, the following information about its network providers:
(i) The provider’s name as well as any group affiliation.
(ii) Street address(es).
(iii) Telephone number(s).
(iv) Web site URL, as appropriate.
(v) Specialty, as appropriate.
(vi) Whether the provider will accept new enrollees.
(vii) The provider’s cultural and linguistic capabilities, including languages (including American Sign Language) offered by the provider or a skilled medical interpreter at the provider’s office, and whether the provider has completed cultural competence training.
(viii) Whether the provider’s office/facility has accommodations for people with physical disabilities, including offices, exam room(s) and equipment. . . .
(b) Information included in a paper provider directory must be updated at least monthly and electronic provider directories must be updated no later than thirty calendar days after the insurer receives updated provider information.[208]
This change would put a federal mandate on all fully-insured and self-funded plans, because while ERISA excuses self-funded plans from state regulation, it does not absolve them from federal regulations.[209]
Critics of the ACA will likely argue that giving control to the federal government over private insurance plans is not within the federal government’s power as granted by Article I § 3 of the Constitution.[210] Critics of robust federal regulation will cite to both National Federation of Independent Business v. Sebelius and United States v. Lopez, arguing that (1) this added regulation is, unlike the Individual Mandate, not a tax;[211] and (2) health is not economic activity.[212] Both of these arguments fail, however, given the fact that Congress’s amendment (1) would regulate action, rather than compel action,[213] and (2) is part of a larger economic class of activities that Congress could rationally find have a substantial impact on interstate trade.[214]
In Sebelius, Chief Justice Roberts noted that Congress could not use its commerce power to invoke the Individual Mandate because, while the Commerce Clause grants Congress the authority to regulate commercial activity, it does not allow Congress to regulate by compelling individuals to act.[215] So too here, critics may argue, by mandating that insurers take specific actions in creating closely monitored provider directories, the federal government is mandating activity that will cost private companies and, by extension, individual consumers, a lot of money to implement.[216] However, unlike in Sebelius, the government here is regulating activity as opposed to compelling economic activity.[217] While the Individual Mandate requires individuals to purchase insurance,[218] the amendment here would require that any information already published by insurers be accurate.[219] While the amendment in question, like the provision in Sebelius, surrounds the ACA and health care law, it in effect looks more similar to that of United States v. Darby.[220] In Darby, the Fair Labor Standards Act (FLSA)[221] created maximum hours and minimum wages for employees in local manufacturing to minimize detrimental standards of living to promote general well-being.[222] The Supreme Court found the FLSA to be constitutional, emphasizing that Congress has the power to regulate commerce, which includes the power to prohibit economic activity that does not conform to Congress’s standards.[223] Like the prohibition on manufacturers imposing unfair working conditions, the proposed amendment prohibits the plans from distributing provider directories without proper maintenance, as such outdated directories effectively mislead beneficiaries as to which doctors are within their networks.[224] This prohibition would therefore align with Chief Justice Robert’s requirement that Congress “regulate commerce,” rather than “compel” commerce.[225]
Critics will also argue that, like in United States v. Lopez, buying and selling insurance is considered economic activity, but access to provider directories is not economic activity and therefore is not within Congress’s Article I § 3 power.[226] In Lopez, a student was arrested for carrying a gun to school, in violation of a federal law making it an offense for any individual to knowingly possess a firearm at a place that the individual knows or should reasonably believe is a school zone.[227] The Supreme Court held that while buying or selling guns is economic activity, the mere carrying of a gun in a school zone does not substantially affect interstate commerce.[228] As such, Congress would be overstepping its constitutional power in regulating private insurers’ distribution of provider directories because it would be exercising police power, infringing activity reserved for states.[229] That said, this argument will fail because the government has a right to impose regulation under the exception elaborated in Gonzalez v. Raich.[230] Per Raich, Congress may regulate intrastate activity if the activity is “part of an economic ‘class’” that, when aggregated, substantially affects interstate commerce.[231] In Raich, the Supreme Court found that medical marijuana could be regulated even if meant to be used for home consumption and not entered into the interstate market.[232] According to the Supreme Court, even if the activity is not meant to be sold in interstate commerce, it may be aggregated to determine economic impact if it is part of a larger economic class of activities that Congress could rationally find have a substantial impact on interstate trade.[233] Similarly, while a state-wide provider directory may not alone impact interstate commerce, the health insurance industry itself is a multi-state, for-profit market generating trillions of dollars of revenue.[234] Further, large multi-state companies will likely opt for self-funded plans, as the ability to abide by one set of laws under ERISA is simpler than creating separate plans for different states.[235] This fact alone identifies the connection to interstate commerce, as employment of multi-state corporations would fall into employee relations that, per the Supreme Court, have a substantial effect on interstate commerce.[236] The Supreme Court has identified that while private employment relationships are within states’ power, denial of employee rights, which may include disclosure of insurance claims, may significantly impair interstate commerce.[237] Thus, Congress has the power to, and should, mandate under federal law that all group plans, including self-insured plans, must comply with the minimum provider directory standards that currently apply to QHPs and Medical Assistance Programs.
B. Creating Specific Enforcement Plans Within States’ Departments of Health Including Periodic Auditing
To optimize insurer adherence to proposed regulations, Congress should also provide means and incentives for state legislatures to implement provisions mandating their respective state administrations handling health care to periodically audit and enforce provider directory misinformation. To do so, Congress should provide subsidies to states that demonstrate creation of a code similar to that of California’s.[238] Further, the subsidy should be contingent upon the state’s creation of a Division of Provider Networks, which will regularly review plan provider networks and issue fines to plans that do not adequately update their provider directories in compliance with federal and state level guidelines.[239]
Critics of increased regulation will argue that this addition would exceed Congress’s spending power because it would be a form of commandeering.[240] Like in the Supreme Court’s holding in National Federation of Independent Business v. Sebelius, critics will argue, the conditional grant of funds would be coercion, which is an impermissible “gun to the head.”[241] In Sebelius, the provision in question would increase federal funding to cover the states’ costs of implementing added regulations, but if a state did not comply with the ACA’s new coverage requirements, the federal government would deny the state additional federal funding and would strip the state of all former federal Medicaid funding.[242] The Court found the provision to be coercive, largely because not complying would result in the federal government removing a previously independent grant and the conditions were unforeseeable to the states.[243]
While the federal government cannot use its power to commandeer states to act “with a gun to the head,” the current proposal looks more like that of the situation in South Dakota v. Dole,[244] and therefore falls within the federal government’s spending power under Article I § 8 of the Constitution.[245] In Dole, the Supreme Court held that conditions imposed by Congress for funds that regulate conduct within a state may be constitutional, even if Congress lacks the power to regulate activity directly.[246] For the conditioned grant to be permissible, all five factors of the Dole test must be met as follows: (1) the funds granted must further the interest of the general welfare; (2) the provision must have a clear statement where the states understand the condition; (3) the funds must relate to the federal interest of the provision; (4) there must not be a separate constitutional bar; and (5) the option must not be coercive or necessary for the state to accept.[247] Here, like in Dole, the federal government providing subsidies to states who create a Division of Provider Networks meets all five factors. First, the provision would promote general welfare by making sure that all plans provide their beneficiaries with accurate information in making their health choices.[248] The provision would also include a clear statement, conditioning funds on the creation of the department.[249] The relatedness is present as the funds would be used to create and fund the department’s function and employment of auditors.[250] Finally, there is no separate constitutional bar on this provision,[251] and unlike in National Federation of Independent Business v. Sebelius, a state’s failure to comply would not take away previously granted funds for public health plans.[252] Thus, the federal government may, and should, provide subsidies to state legislatures to incentivize them to enforce regulations on provider directory information through periodic audits and penalties.
Health care is of great debate in modern politics.[253] Regardless of the final system enacted, whether it be Single-Payer,[254] mandatory individual private enrollment,[255] or full privatization of insurance,[256] the federal government should impose strict regulations and enforcement tactics to ensure that information disseminated to the public regarding provider in-network status is reliable.
The ACA and its regulations were created to provide affordable and accessible health insurance for all Americans.[257] However, misinformation in provider directories has remained a consistent and sizeable issue across the market, and has resultingly created uncertainty of access and/or crippling bills due to lack of coverage.[258] By failing to provide protections for self-insured beneficiaries, federal and state governments do not guarantee protection from plan misinformation to a large portion of employed Americans.[259] Additionally, despite the rules currently in place, lack of enforcement limits incentives for insurers to actually comply.[260] To successfully achieve the intended purpose of the ACA, HHS should extend all regulations applicable to fully-insured plans to self-insured plans.[261] Further, HHS and state agencies should create an adequate enforcement mechanism to hold plans accountable for misinformation to incentivize compliance.[262] Ultimately, for these reasons, the current method of approaching misinformation is incorrect and should be amended to ensure universal protection.
[1] There is continuing debate around whether “health care” and “healthcare” have the same definition, and if so, which spelling is correct. See The Final Word: Healthcare vs. Health Care, Arcadia: ArcTrends Blog (June 30, 2014), https://www.arcadia.io/final-word-healthcare-vs-health-care [https://perma.cc/N4J7-JA66] (arguing that health care (two words) applies to “a set of actions by a person or persons to maintain or improve the health of a patient/customer” whereas healthcare (one word) applies to the “system, industry, or field that facilitates the logistics and delivery of health care for patients/consumers”). Webster’s Dictionary lists health care as two words, defining it as “efforts made to maintain or restore physical, mental, or emotional well-being especially by trained and licensed professionals—usually hyphenated when used attributively.” Health care, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/health%20care [https://perma.cc/297T-QGQS]. To align with formal usage, this Note will spell health care with two words (unless taken from a direct quote).
[2] See Jay Hancock, Insurers’ Flawed Directories Leave Patients Scrambling for In-Network Doctors, N.Y. Times (Dec. 3, 2016), https:// www.nytimes.com/2016/12/03/us/inaccurate-doctor-directories-insurance-enrollment.html [https://perma.cc/2VT5-P6UA] (discussing different consumers who either had issues finding a doctor in network or relied on a plan directory only to receive denials of coverage, bills, and summons to collections agencies).
[3] For the purposes of this Note, the term “plan” means “[a] benefit [one’s] employer, union or other group sponsor provides to [him or her] to pay for [her] health care services.” Plan, HealthCare.gov, https://www.healthcare.gov/glossary/plan [https://perma.cc/7VGZ-NMRX].
[8] In large part, issues on misinformation are underdiscussed because there is little data reported by the federal government. See Katie Keith, Final Rule Rapidly Eases Restrictions on Non-ACA-Compliant Association Health Plans, Health Affairs (June 21, 2018), https://www.healthaffairs.org/do/10.1377/hblog20180621.671483/full [https://perma.cc/DE77-NGA7]. Further, HIPAA compliance requires all individual health information be kept private without explicit consent from the patient. Health Insurance Portability and Accountability Act of 1996 (HIPAA), Pub. L. No. 104-191, 110 Stat. 1936; see U.S. Dep’t of Health & Human Servs., Your Rights Under HIPAA, HHS.gov, https://www.hhs.gov/hipaa/for-individuals/guidance-materials-for-consumers/index.html [https://perma.cc/JJQ4-G9N7]. When prompted, agencies can refuse to provide individual files, even upon a FOIA request. 5 U.S.C. § 552(b)(6) (2018) (“This section does not apply to matters that are . . . personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy . . . .”).
[9] Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119 (2010).
[10] Affordable Care Act (ACA): What Is the Affordable Care Act?, Health Ins., https://www.healthinsurance.org/glossary/affordable-care-act [https://perma.cc/9DVC-H7TS]; ObamaCare Pros and Cons, Health Pocket (Mar. 30, 2018), https://www.healthpocket.com/obamacare/pros-and-cons [https://perma.cc/P76M-JTS3]; Sandy H. Ahn, The Affordable Care Act and Insurer Business Practices, 17 AMA J. Ethics 754, 754–59 (2015), https://journalofethics.ama-assn.org/sites/journalofethics.ama-assn.org/files/2018-05/hlaw1-1508.pdf [https://perma.cc/J8DV-K85S].
[11] See Janet L. Dolgin & Katherine R. Dieterich, Social and Legal Debate About the Affordable Care Act, 80 UMKC L. Rev. 45, 53 (2011).
[12] 42 U.S.C. § 1396a(a)(10)(A)(i) (2018) (extending Medicaid eligibility to all individuals below 133% of the poverty line); ACA § 2001; see also Multi-Share Plans Could Cover Millions Still Uninsured After PPACA Implementation, Bloomberg L.: Health L. & Bus. News, Mar. 3, 2011.
[13] See John V. Jacobi et al., Health Insurer Market Behavior After the Affordable Care Act: Assessing the Need for Monitoring, Targeted Enforcement, and Regulatory Reform, 120 Penn St. L. Rev. 109, 144–45 (2015) (“Consumers in Florida, for example, who purchased exchange plans, have reported that doctors listed in their plans’ provider directories refused to accept their insurance.”).
[14] See id.; see also Jacqueline LaPointe, Docs Call for Provider Directory Accuracy to Improve Care Access, RevCycle Intelligence (Feb. 28, 2018), https://revcycleintelligence.com/news/docs-call-for-provider-directory-accuracy-to-improve-care-access [https://perma.cc/89R7-5X7N] (discussing how inaccurate provider directories create confusion for both patients and providers, and limit overall patient access to care); Jenna Temkin, How Inaccurate Health Plan Provider Directories Block Access to Health Care, FamiliesUSA (May 24, 2016), https://web.archive.org/web/20160528164852/https://familiesusa.org/blog/2016/05/how-inaccurate-health-plan-provider-directories-block-access-health-care.
[15] See Availity, The Provider Directory Dilemma 1 (2016), https://www.ahip.org/wp-content/uploads/2016/09/The-Provider-Directory-Dilemma-Availity.pdf [https://perma.cc/DS8A-8R52] (“For years, directories were only available in hard copy, but with the advent of the internet, health plans moved their directories online so members could more easily access the information. However . . . directories were usually updated each year for enrollment season, and the information quickly became stale.”).
[16] See Hancock, supra note 2.
[17] The term self-funded plan is synonymous and interchangeable with the term self-insured plan. Hereinafter, this Note will refer to the term as self-funded (unless taken from a direct quote). For a full explanation of self-funded plans, see infra note 90 and accompanying text.
[18] For a full explanation of fully-insured plans, see infra note 89 and accompanying text.
[19] Dolgin & Dieterich, supra note 11, at 46–47 (“[T]he United States was distinct among the developed countries in failing to provide health care coverage and thus health care to large numbers of people. Thousands of people died each year because they could not afford health care and were too well off for government assistance.”).
[20] Niraj Chokshi, Historians Take Note: What America Looked Like Before Obamacare, Wash. Post (Mar. 26, 2014, 1:00 PM), https://www.washingtonpost.com/blogs/govbeat/wp/2014/03/26/historians-take-note-what-america-looked-like-before-obamacare/?utm_term=.5d8e0d49f7f2 [https://perma.cc/HQ9E-MGF5] (“[A]ccording to a . . . Commonwealth Fund report . . . [a]bout 79 million—more than one in four Americans—either lacked health insurance or were underinsured (defined as those who were insured, yet spent a high share of their income on medical care).”); see also Health Care Before Obamacare, mn HealthBasics, http://mnhealthbasics.com/perspectives/health-care-before-obamacare [https://perma.cc/PV47-77QE]. That said, large discrepancies existed between states. See id. For example, in Massachusetts, only four percent of the population lacked health insurance, however, in Texas, twenty-seven percent of citizens were uninsured. Id. This was largely because state laws varied. See id. Massachusetts, along with some other states, “required insurers to accept all applicants and prohibited rating variation based on health, similar to the ACA—but this was not the norm.” Gary Claxton, Larry Levitt & Karen Pollitz, Pre-ACA Market Practices Provide Lessons for ACA Replacement Approaches, KFF (Feb. 16, 2017), https://www.kff.org/health-costs/issue-brief/pre-aca-market-practices-provide-lessons-for-aca-replacement-approaches [https://perma.cc/DA87-VUPD].
[22] Claxton, Levitt & Pollitz, supra note 20.
[23] A pre-existing condition is “[a] health problem, like asthma, diabetes, or cancer, [a beneficiary] ha[s] before the date that new health coverage starts.” Pre-Existing Condition, HealthCare.gov, https://www.healthcare.gov/glossary/pre-existing-condition [https://perma.cc/R64X-ZWKM].
[24] Claxton, Levitt & Pollitz, supra note 20.
[25] Dolgin & Dieterich, supra note 11, at 52–53 (“The Act promises to extend health care coverage to millions of people. Health care coverage will be made available to many not now insured. This will occur, first, through the expansion of Medicaid, and, second, through creation of the so-called ‘American Health Benefit Exchanges.’”).
[26] Id. at 52–53. For a further explanation, see Elena Kaplan et al., Deciding Whether to Play or Pay Under the Affordable Care Act, 30 J. Tax’n Inv. 3 (2013) (defining “[a]n Exchange [as] a governmental entity or nonprofit organization that serves as a marketplace for health insurance for individuals and small employers”); see Vanessa C. Forsberg, Overview of Health Insurance Exchanges, Cong. Res. Serv. (June 20, 2018), https://fas.org/sgp/crs/misc/R44065.pdf [https://perma.cc/H96L-F5DN].
[27] Claxton, Levitt & Pollitz, supra note 20.
[28] European countries each have different ways of structuring their health care systems, however “[o]ne of the major similarities across healthcare systems in Europe is that all citizens are included.” David Rook, How Does Healthcare in Europe Work?, JP Griffin Group: Emp. Benefits Blog (Jan. 11, 2018), https://www.griffinbenefits.com/employeebenefitsblog/how-does-healthcare-in-europe-work [https://perma.cc/P2MN-KTX9]; see Katharina Janus & Etienne Minvielle, Rethinking Health Care Delivery: What European and United States Health Care Systems Can Learn from One Another, HealthAffairs (Dec. 15, 2017), https://www.healthaffairs.org/do/10.1377/hblog20171214.835155/full [https:// perma.cc/G3JE-YNSV] (discussing why European citizens seem more comfortable with the idea of pooling funds for single-payer systems); Margot Sanger-Katz, The Difference Between a ‘Public Option’ and ‘Medicare for All’? Let’s Define Our Terms, N.Y. Times (Feb. 19, 2019), https://www.nytimes.com/2019/02/19/upshot/medicare-for-all-health-terms-sanders.html [https://perma.cc/FT2J-36Q3]. For further comparison on different Western health care systems, see Aaron E. Carroll & Austin Frakt, The Best Health Care System in the World: Which One Would You Pick?, N.Y. Times (Sept. 18, 2017), https://www.nytimes.com/interactive/2017/09/18/upshot/best-health-care-system-country-bracket.html?module=inline [https://perma.cc/724F-4BAS].
[29] Dolgin & Dieterich, supra note 11, at 55.
[30] “The individual mandate requires most Americans to maintain ‘minimum essential’ health insurance coverage.” Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 539 (2012). If the individual decided to opt out of coverage, they would be charged a “[s]hared responsibility payment,” paid to the federal government on their tax returns, which the ACA “describe[d] as a ‘penalty.’” Id.; see 26 U.S.C. § 5000A (2018). The mandate was subsequently repealed in 2017. See Pub. L. No. 115-97, § 11081(a)(2)(B), 131 Stat. 2054, 2092 (2017).
[31] The Employer Mandate requires certain “applicable large employer[s]” (employers with fifty or more employees) to “provide affordable health care coverage to its full-time employees and their dependents . . . .” Liberty Univ., Inc. v. Lew, 733 F.3d 72, 84 (4th Cir. 2013); see 26 U.S.C. § 4980H; see also 27 Am. Jur. 2d Employment Relationship § 70 (2019).
[32] An exchange is a “one-stop marketplace for individuals and small businesses to compare community-rated health insurance and purchase the policy of their choice.” Sebelius, 567 U.S. at 701.
[33] Health Care Before Obamacare, supra note 20 (“[The ACA] has been controversial. In the eyes of many critics, [the ACA] has significantly expanded government’s role in health care and increased the complexity of an already complicated health care system.”); Mark T. Morrell & Alex T. Krouse, Accountability Partners: Legislated Collaboration for Health Reform, 11 Ind. Health L. Rev. 225, 228–32 (2014).
[34] Lydia Saad, One Week Later, Americans Divided on Healthcare, Gallup (Mar. 29, 2010), https://news.gallup.com/poll/127025/one-week-later-americans-divided-healthcare.aspx [https://perma.cc/7HRT-KNEM]. This poll indicates that popularity of the ACA was largely divided along party lines. Id. Eighty-one percent of Democrats found passage of the ACA to be a “good thing,” while eighty-six percent of Republicans found passage of the ACA to be a “bad thing.” Id.
[35] See Catherine A. Hardee, Considering Consequences: Autonomy’s Missing Half, 43 Pepp. L. Rev. 785, 785–91 (2016).
[36] See, e.g., Sebelius, 567 U.S. 519.
[37] For a synopsis of the various debates between justices, see National Federation of Independent Business v. Sebelius, Oyez, https://www.oyez.org/cases/2011/11-393 [https://perma.cc/3NAN-F4QA].
[38] Sebelius, 567 U.S. at 539 (“The individual mandate requires most Americans to maintain ‘minimum essential’ health insurance coverage.”).
[39] Id. at 562–69. Chief Justice Roberts held, “[I]t is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance. Such legislation is within Congress’s power to tax.” Id. at 588.
[40] Id. at 662–63 (Scalia, J., dissenting) (“[W]e have never held—never—that a penalty imposed for violation of the law was so trivial as to be in effect a tax. . . . When an Act ‘adopt[s] the criteria of wrongdoing’ and then imposes a monetary penalty as the ‘principal consequence on those who transgress its standard,’ it creates a regulatory penalty, not a tax.”); accord Child Labor Tax Case, 259 U.S. 20, 39 (1922) (“[T]he so-called tax is a penalty to coerce people of a state to act as Congress wishes them to act in respect of a matter completely the business of the state government under the federal Constitution.”).
[41] Morrell & Krouse, supra note 33, at 233.
[44] See 42 U.S.C. §§ 18021–18063 (2018).
[45] Id. § 18031(e)(3)(A) (“The Exchange shall require health plans seeking certification as qualified health plans to submit to the Exchange, the Secretary, the State insurance commissioner, and make available to the public, accurate and timely disclosure of the following information: (i) Claims payment policies and practices; (ii) Periodic financial disclosures; (iii) Data on enrollment; (iv) Data on disenrollment; (v) Data on the number of claims that are denied; (vi) Data on rating practices; (vii) Information on cost-sharing and payments with respect to any out-of-network coverage; (viii) Information on enrollee and participant rights under this title; (ix) Other information as determined appropriate by the Secretary.”).
[46] Id. Issuers of public and private health coverage are required to “make timely, plain-language disclosures of detailed claims and coverage data to the U.S. Department of Health and Human Services (HHS), state insurance regulators, and the public . . . [creating a] uniform minimum standard of transparency.” Justin Giovannelli, Kevin Lucia & Sarah J. Dash, The Affordable Care Act’s Disclosure Rules: Can They Improve Coverage, Raise Care Quality, and Cut Costs?, Commonwealth Fund (Jan. 15, 2014), https://www.commonwealthfund.org/blog/2014/affordable-care-acts-disclosure-rules-can-they-improve-coverage-raise-care-quality-and [https://perma.cc/DPV4-52C4]. Regarding employer-based plans, see 42 U.S.C. § 300gg–15a (2018).
[47] See 42 U.S.C. § 18031(e)(3)(A); see also Forsberg, supra note 26. Disclosure of information is not present in this list, however subsection (ix) delegates power to the Secretary of HHS to require additional information. For a further discussion on delegation to HSS, see infra Section I.C.
[48] 42 U.S.C. § 300gg-9. The statute’s reference to small employers and individuals applies to the people not previously covered that could “look to the state-based exchanges” after the enactment of the ACA. Dolgin & Dieterich, supra note 11, at 52–53. For a further understanding of individual coverage through the open exchange, see Carla Anderson, What Is a Health Insurance Exchange?, Health Ins. (Aug. 20, 2013), https://www.healthinsurance.org/obamacare/what-is-a-health-insurance-exchange [https://perma.cc/V4K3-C9VU]. Small Employer coverage plans, called Small Business Health Option Programs (SHOP), also run through the public health insurance exchanges for companies with fewer than fifty employees. Overview of SHOP: Health Insurance for Small Businesses, HealthCare.gov, https://www.healthcare.gov/small-businesses/provide-shop-coverage/shop-marketplace-overview [https://perma.cc/QAJ8-M9NM]; see also Forsberg, supra note 26. By indicating that the provision only applies to SHOP or individual plans on the open exchange, this signals that the provision does not apply to beneficiaries of self-funded plans. See Notes on 42 U.S.C. § 300gg-9, Legal Info. Inst., https://www.law.cornell.edu/uscode/text/42/300gg-9 [https://perma.cc/NX7V-3EA5] (“Section applicable with respect to group health plans, and health insurance coverage offered in connection with group health plans . . . .”). For further discussion, see infra Section I.C.4.
[49] 42 U.S.C. § 300gg-9 (mandating insurers to “make a reasonable disclosure to . . . [an] individual” for “benefits and premiums available under all health insurance coverage for which the . . . individual . . . is qualified.”).
[52] 42 U.S.C. § 300gg-92. The statute reads:
The Secretary, consistent with section 104 of the Health Care Portability and Accountability Act of 1996, may promulgate such regulations as may be necessary or appropriate to carry out the provisions of this subchapter. The Secretary may promulgate any interim final rules as the Secretary determines are appropriate to carry out this subchapter.
Id.
[53] Title 42 provides specific regulations applicable to Medical Assistance Programs such as Medicare and Medicaid. See generally 42 C.F.R. pts. 438–455 (2019). Title 45 includes regulations applicable to all health plans. See generally 45 C.F.R. pts. 144–159 (2019). Section 144.101 specifically enumerates how each subchapter part applies to different types of health plans. See 45 C.F.R. § 144.101.
[54] 42 C.F.R. § 438.1 (“This part sets forth requirements, prohibitions, and procedures for the provision of Medicaid services through MCOs, PIHPs, PAHPs, PCCMs and PCCM entities.”). For a detailed description of each Medicaid service, see id. § 438.2.
[55] Id. § 438.10(h)(1) (“Information for all enrollees of MCOs, PIHPs, PAHPs, and PCCM entities—Provider Directory. (1) Each MCO, PIHP, PAHP, and when appropriate, the PCCM entity, must make available in paper form upon request and electronic form, the following information about its network providers: (i) The provider’s name as well as any group affiliation. (ii) Street address(es). (iii) Telephone number(s). (iv) Web site URL, as appropriate. (v) Specialty, as appropriate. (vi) Whether the provider will accept new enrollees. (vii) The provider’s cultural and linguistic capabilities, including languages (including American Sign Language) offered by the provider or a skilled medical interpreter at the provider’s office, and whether the provider has completed cultural competence training. (viii) Whether the provider’s office/facility has accommodations for people with physical disabilities, including offices, exam room(s) and equipment.”).
[56] Id. § 438.10(h)(3) (“[E]lectronic provider directories must be updated no later than 30 calendar days after the MCO, PIHP, PAHP or PCCM entity receives updated provider information.”).
[57] Id. § 422.111(b)(3)(i) (“[Provider directories must include] [t]he number, mix, and distribution (addresses) of providers from whom enrollees may reasonably be expected to obtain services . . . .”).
[58] Id. § 422.112(a)(1) (“[Plans must] [m]aintain and monitor a network of appropriate providers that is supported by written agreements and is sufficient to provide adequate access to covered services to meet the needs of the population served.”).
[59] Ctrs. for Medicare & Medicaid Servs., Advance Notice of Methodological Changes for Calendar Year (CY) 2016 for Medicare Advantage (MA) Capitation Rates, Part C and Part D Payment Policies and 2016 Call Letter 134–35 (2015) (“Recent provider and beneficiary complaints have highlighted problems with the accuracy of some MAO online provider directory information. . . . Additionally, some provider directories contain the names of providers who, while still in the MAO’s network, are not open and available to new patients, but are not indicated in that way. . . . For online directories, MAOs are expected to update information in real-time, and provide complete information regarding providers who are available to new patients/enrollees. We are reinforcing that, in order for us to consider the MAO compliant with § 422.111, MAOs must include in their online provider directories all active contracted providers, with specific notations to highlight those providers who are closed or not accepting new patients.”).
[60] Compare 42 C.F.R. § 422.111, with id. § 438.10(h)(1).
[61] Health Insurance Coverage of the Total Population, KFF, https://www.kff.org/other/state-indicator/total-population/?currentTimeframe=1&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D [https://perma.cc/4BP8-HKPD] (identifying that, in 2016, twenty-one percent of Americans were enrolled in Medicaid and thirteen percent were enrolled in Medicare); Ctrs. for Medicare & Medicaid Servs., CMS Fast Facts 1 (2018) (showing that in 2018, about sixty million Americans were enrolled in Medicare Parts A or B and about seventy-five million Americans were enrolled in Medicare).
[62] See 42 C.F.R. pts. 438–455 (2019).
[63] 45 C.F.R. pts. 140–159 (2019). While the Subchapter includes many provisions for each plan type, this Note focuses on provisions enumerating updated provider directories within a network. See 45 C.F.R. pt. 156.
[64] Exchange, HealthCare.gov, https://www.healthcare.gov/glossary/exchange [https://perma.cc/3B5D-55L6]; see Dolgin & Dieterich, supra note 11, at 52–53.
[65] Qualified Health Plan, HealthCare.gov, https://www.healthcare.gov/glossary/qualified-health-plan [https://perma.cc/5Z4D-QM52] (“An insurance plan that’s certified by the Health Insurance Marketplace, provides essential health benefits, follows established limits on cost-sharing (like deductibles, copayments, and out-of-pocket maximum amounts), and meets other requirements under the Affordable Care Act. All qualified health plans meet the Affordable Care Act requirement for having health coverage, known as ‘minimum essential coverage.’”); Qualified Health Plans, eHealth, https://www.ehealthinsurance.com/resources/affordable-care-act/qualified-health-plans [https://perma.cc/NC8L-9AVR] (last updated Nov. 15, 2019); Ctr. for Consumer Info. & Ins. Oversight, Qualified Health Plan Certification, Ctrs. for Medicare & Medicaid Servs., https://www.cms.gov/CCIIO/Programs-and-Initiatives/Health-Insurance-Marketplaces/qhp.html [https://perma.cc/2YX4-MCCD].
[66] Compare 42 C.F.R. § 438.10(h) (2019), with 45 C.F.R. § 156.230 (2019).
[67] 45 C.F.R. § 156.230(c) (“Increasing consumer transparency. A QHP issuer in a Federally-facilitated Exchange must make available the information described in paragraph (b) of this section on its Web site in an HHS specified format and also submit this information to HHS, in a format and manner and at times determined by HHS.”). Paragraph (b)(2) states:
For plan years beginning on or after January 1, 2016, a QHP issuer must publish an up-to-date, accurate, and complete provider directory, including information on which providers are accepting new patients, the provider’s location, contact information, specialty, medical group, and any institutional affiliations, in a manner that is easily accessible to plan enrollees, prospective enrollees, the State, the Exchange, HHS and OPM.
Id. § 156.230(b)(2) (emphasis added).
[68] Id. § 156.230(b)(1) (“A QHP issuer must make its provider directory for a QHP available to the Exchange for publication online in accordance with guidance from HHS and to potential enrollees in hard copy upon request. In the provider directory, a QHP issuer must identify providers that are not accepting new patients.”).
[69] Timothy S. Jost, Employers and the Exchanges Under the Small Business Health Options Program: Examining the Potential and the Pitfalls, 31 Health Aff. 267, 267 (2012) (“In 2010, 169 million Americans—55% of the population—were covered by employer-sponsored insurance.”); see generally Arnold J. Rosoff & Anthony W. Orlando, Employers and Health Insurance Under the Affordable Care Act, 24 Annals Health L. 470 (2015) (discussing the history and uniqueness of the United States employer sponsored health care system).
[70] A “group health plan” is “a health plan offered by an employer or employee organization that provides health coverage to employees and their families.” Group Health Plan, HealthCare.gov, https://www.healthcare.gov/glossary/group-health-plan [https://perma.cc/FH7E-JGFM].
[71] Jost, supra note 69, at 267.
[73] Guaranteed issue is “[a] requirement that health plans must permit you to enroll regardless of health status, age, gender, or other factors that might predict the use of health services. Except in some states, guaranteed issue doesn’t limit how much you can be charged if you enroll.” Guaranteed Issue, HealthCare.gov, https://www.healthcare.gov/glossary/guaranteed-issue [https://perma.cc/S54X-8JHT].
[74] Jost, supra note 69, at 267. Underwriting, specifically “Medical Underwriting,” is “a process used by insurance companies to try to figure out your health status when you’re applying for health insurance coverage to determine whether to offer you coverage, at what price, and with what exclusions or limits.” Medical Underwriting, HealthCare.gov, https://www.healthcare.gov/glossary/medical-underwriting [https://perma.cc/9WK5-Q8SF].
[75] Jost, supra note 69, at 267.
[77] 26 U.S.C. § 4980H(a) (2019) (“Large employers not offering health coverage. If [] any applicable large employer fails to offer to its full-time employees (and their dependents) the opportunity to enroll in minimum essential coverage . . . then there is hereby imposed on the employer an assessable payment equal to the product of the applicable payment amount and the number of individuals employed by the employer as full-time employees during such month.”); Kendall Victoria Dacey, Dinner for Two: Employer Mandate, Meet ERISA; How Dave & Buster’s Response to the Affordable Care Act’s Employer Mandate May Open the Door for Employees to Seek ERISA Relief, 44 Pepp. L. Rev. 15, 17–20 (2016); Kaplan et al., supra note 26; see Cigna, Employer Mandate Fact Sheet (2018), https://www.cigna.com/assets/docs/about-cigna/informed-on-reform/employer-mandate-fact-sheet.pdf [https://perma.cc/XJK2-M8HK].
[79] Determining if an Employer Is an Applicable Large Employer, IRS, https://www.irs.gov/affordable-care-act/employers/determining-if-an-employer-is-an-applicable-large-employer [https://perma.cc/X2GK-UTLP] (last updated Mar. 18, 2019).
[80] 45 C.F.R. § 155.205(b)(1)(viii) (2019) (“The provider directory made available to the Exchange in accordance with § 156.230.”); see id. § 156.230; Jost, supra note 69, at 267; Forsberg, supra note 26.
[81] Overview of SHOP: Health Insurance for Small Businesses, HealthCare.gov, https://www.healthcare.gov/small-businesses/provide-shop-coverage/shop-marketplace-overview [https://perma.cc/E95S-6XS2].
[82] Id.; Small Business Health Care Tax Credit and the SHOP Marketplace, IRS, https://www.irs.gov/affordable-care-act/employers/small-business-health-care-tax-credit-and-the-shop-marketplace [https://perma.cc/7ZY6-8FLL] (last updated May 3, 2019).
[83] 45 C.F.R. § 155.205(b)(1)(viii); see id. § 156.230; see also Forsberg, supra note 26.
[85] 45 C.F.R. pt. 146 (2019).
[86] See id. Details will be discussed infra Section I.D.
[87] See Provider Directory Regulations: A State-by-State Guide, CredSimple (July 2016), https://www.credsimple.com/provider-data-management/state-regulations-provider-directories [https://perma.cc/2Y5Q-AESV] (indicating that provider directory requirements in states that follow federal guidelines only apply to QHP, Medicare, and Medicaid, but states that provide additional provisions can extend regulations to group plans). For further discussion, see infra Section I.D. Despite the ability for states to create additional regulations for group plans, self-funded plans are exempt from any additional state level regulation. See infra Section II.A.
[88] Christina Merhar, Fully-Insured vs. Self-Insured (Self-Funded) Health Plans, People Keep (Feb. 4, 2016), https://www.peoplekeep.com/blog/fully-insured-vs-self-insured-self-funded-health-plans [https://perma.cc/V23X-54M7].
[89] Fully Insured Job-based Plan, HealthCare.gov, https://www.healthcare.gov/glossary/fully-insured-job-based-plan [https://perma.cc/PQ8A-Z6HK].
[90] Self-Insured Plan, HealthCare.gov, https://www.healthcare.gov/glossary/self-insured-plan [https://perma.cc/PT6N-XPHN] (explaining how self-funded plans allow an employer to “collect[] premiums from enrollees and take[] on the responsibility of paying employees’ and dependents’ medical claims”).
[91] See What Is Self-Funding?, Health Care Admin. Ass’n, https://www.hcaa.org/page/selffunding [https://perma.cc/CXY4-LHAN].
[92] Id.; see also Is Your Health Plan Self-Insured?, Pacer Ctr., https://www.pacer.org/health/pdfs/HIAC-h3.pdf [https://perma.cc/XS5T-QH4V] (last updated 2016) (“With a fully insured plan, the employer pays all or part of the premium to an insurer, and the insurer pays claims from the pool of premiums it collects from everyone it insures. Under a self-insured plan, the employer is responsible for collecting or funding a pool of premiums and paying all health care claims out of company assets.”).
[93] What is Self-Funding?, supra note 91 (“A TPA may provide additional services to an employee benefit plan or employer, such as collecting premiums, contracting for PPO services, providing utilization review of claims, and similar ancillary services to the operation of the employee benefit plan.”).
[94] Is Your Health Plan Self-Insured?, supra note 92 (“Because many employers use a third party administrator, such as an insurance company, to handle claims, you may not necessarily know if your plan is self-insured.”).
[95] TPAs cover basic services to facilitate insurance coverage such as: “claims adjudication, customer service, eligibility maintenance, and ID card production.” What is the Role of a TPA?, HealthNow Admin. Serv., https://www.hnas.com/content/hnas/self-funding/role-of-tpa.html [https://perma.cc/8YGC-3DSD].
[96] Is Your Health Plan Self-Insured?, supra note 92.
[97] Employee Retirement Income Security Act of 1974, Pub. L. No. 93-406, 88 Stat 829; Henry J Kaiser Family Found., Employer Health Benefits Survey S10 (2017) https://www.kff.org/report-section/ehbs-2017-section-10-plan-funding [https://perma.cc/3VPZ-T8ZF] [hereinafter Kaiser Employer Health Benefits Survey] (“Federal law (the Employee Retirement Income Security Act of 1974, or ERISA) exempts self-funded plans established by private employers from most state insurance laws, including reserve requirements, mandated benefits, premium taxes, and consumer protection regulations.”); see Christine Eibner et al., Employer Self-Insurance Decisions and the Implications of the Patient Protection and Affordable Care Act as Modified by the Health Care and Education Reconciliation Act of 2010 (ACA), at 54–57 (2011); see also Dep’t of Health & Human Servs., Office of Inspector Gen., Effects of ERISA on State Insurance Laws: A Management Advisory Report (1991), https://oig.hhs.gov/oei/reports/oei-12-91-01420.pdf [https://perma.cc/A2HU-2PNK] (“[I]nsurance plans covered under the Employee Retirement Income Security Act of 1974 . . . are exempt from state regulation of insurance.”).
[98] Giovannelli, Lucia & Dash, supra note 46 (“In general, however, detailed claims and coverage data for the private insurance market remain hidden from view.”).
[99] See Hancock, supra note 2.
[100] See generally 42 C.F.R. pts. 400–600 (2019) (Ch. IV–Centers for Medicare & Medicaid Services, Department of Health and Human Services). These regulations do not include specific enforcement mandates. See id.
[101] See Hancock, supra note 2 (“The health law and the Health and Human Services Department set standards for network adequacy but leave most enforcement up to states. States rarely test the lists for accuracy and often rely on consumers to report problems.”).
[102] Provider Directory Regulations: A State-by-State Guide, supra note 87.
[103] Id. As of 2016, twenty-seven states had not implemented more disclosure requirements than the federally mandated requirements. Id. These states included: Alabama, Alaska, Arizona, Hawaii, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, Utah, Virginia, West Virginia, and Wyoming. Id. As of 2017, twenty-nine states were documented as having additional provider directory rules, leaving twenty-one states with only federal level regulations. See 2017 Provider Directory Laws: State Legislation Wrap-Up and Map, Zelis, https://www.zelis.com/resource/2017-provider-directory-laws-state-legislation-wrap-up-and-map [https://perma.cc/Z4NP-E4F7].
[104] Provider Directory Regulations: A State-by-State Guide, supra note 87; see, e.g., N.Y. Ins. Law § 4324(a)(17) (McKinney 2019); Cal. Health & Safety Code § 1367.27(e)(1) (West 2019).
[105] N.Y. Ins. Law § 4324(a)(17) (“[W]here applicable, a listing by specialty, which may be in a separate document that is updated annually, of the name, address, and telephone number of all participating providers, including facilities, and . . . in the case of physicians, board certification, languages spoken and any affiliations with participating hospitals. The listing shall also be posted on the corporation’s website and the corporation shall update the website within fifteen days of the addition or termination of a provider from the corporation’s network or a change in a physician’s hospital affiliation.”).
[106] Id. § 109(c)(1) (“If the superintendent finds after notice and hearing that any authorized insurer, representative of the insurer, licensed insurance agent, licensed insurance broker, licensed adjuster, or any other person or entity licensed, certified, registered, or authorized pursuant to this chapter, has wilfully [sic.] violated the provisions of this chapter or any regulation promulgated thereunder, then the superintendent may order the person or entity to pay to the people of this state a penalty in a sum not exceeding one thousand dollars for each offense.”).
[107] Cal. Health & Safety Code § 1367.27(e)(1). The provision includes rules for insurers such as:
[A] Health care service plan shall publish and maintain a provider directory or directories with information on contracting providers that deliver health care services to the plan’s enrollees, including those that accept new patients. A provider directory shall not list or include information on a provider that is not currently under contract with the plan.
Id. § 1367.27(a) (emphasis added); see Chad Terhune, California Regulator Slams Health Insurers over Faulty Doctor Lists, Kaiser Health News (Feb. 13, 2017), https://khn.org/news/california-regulator-slams-health-insurers-over-faulty-doctor-lists [https://perma.cc/PQ2U-NQKP] (“Consumer outrage over provider directories led to passage of a state law [in 2016] that requires insurers and medical providers to ensure the lists are accurate and regularly updated. It also requires health plans to reimburse consumers who are charged out-of-network prices because of an inaccurate provider list.”).
[108] Cal. Health & Safety Code § 1368.04(a) (West 2019) (“The director shall investigate and take enforcement action against plans regarding grievances reviewed and found by the department to involve noncompliance with the requirements of this chapter . . . . Where substantial harm to an enrollee has occurred as a result of plan noncompliance, the director shall, by order, assess administrative penalties subject to appropriate notice of, and the opportunity for, a hearing with regard to the person affected . . . . The director shall periodically evaluate grievances to determine if any audit, investigative, or enforcement actions should be undertaken by the department.”). To enforce the regulations, the law “require[s] insurers [to] file reports to the state to combat problems with provider lists and barriers to care. [A California state senator] and consumer advocates urged regulators to step up enforcement against insurers that are violating the law.” Terhune, supra note 107.
[109] See Hancock, supra note 2 (“Consumer advocates often praise California for vigorous insurance regulation.”).
[110] See, e.g., Ctrs. for Medicare & Medicaid Servs., Online Provider Directory Review Report (2018) [hereinafter CMS Provider Directory Review Report], https://www.cms.gov/Medicare/Health-Plans/ManagedCareMarketing/downloads/Provider_Directory_Review_Industry_Report_Final_01-13-17.pdf [https://perma.cc/7LRM-2JM3].
[111] Simon F. Haeder, David L. Weimer & Dana B. Mukamel, Secret Shoppers Find Access to Providers and Network Accuracy Lacking for Those in Marketplace and Commercial Plans, 35 Health Aff. 1160, 1160–66 (2016). The difficulty that beneficiaries have in solidifying appointments with in-network providers creates frustration, and “[t]he more frustrated people become as they are trying to access care, the more likely they are to defer or forgo care, or to choose more expensive options such as emergency departments.” Id. at 1065.
[112] See Virgil Dickson, Nearly Half of MA Provider Directories Reviewed by CMS Are Wrong, Modern Healthcare (Jan. 20, 2017, 12:00 AM), http://www.modernhealthcare.com/article/20170120/NEWS/170129997 [https://perma.cc/Q3YS-HJR6]. For additional data and survey information, see CMS Provider Directory Review Report, supra note 110.
[113] See Jacobi et al., supra note 13, at 144–45.
[117] Surprise bills, or “surprise balance billing,” often describes bills charged when a patient visits an in-network hospital but unknowingly is treated by an out-of-network provider at the facility and is therefore charged large amounts for treatment by the out-of-network provider. Balance Billing: What is Balance Billing?, Health Ins., https://www.healthinsurance.org/glossary/balance-billing [https://perma.cc/Y66Q-XP7X].
[118] Surprise Medical Bills Survey, Consumer Rep. (May 7, 2015), https://advocacy.consumerreports.org/research/surprise-bills-survey [https://perma.cc/36WS-L493].
[120] See Jacobi et al., supra note 13.
[121] Complaint Letter from Legal Health Counselor of Mr. Smith to N.Y. Att’y Gen. (Feb. 2, 2017) [hereinafter Complaint to N.Y. Att’y Gen.] (on file with author).
[122] To maintain HIPAA compliance, all identifiable information has been redacted. The individual will be referred to as “Mr. Smith,” and the insurance company will be referred to as “Plan X.”
[123] Complaint to N.Y. Att’y Gen., supra note 121 (citing Mr. Smith’s Provider’s Diagnostic Report (2016)).
[127] Id. (citing Care Coordination Letter of Mr. Smith’s Plan (2016)).
[128] Id. (citing Plan X Provider List (2016)).
[131] Id. (citing Plan X Explanation of Benefits and Mr. Smith’s Provider’s Bill (2016)).
[133] Id. (first citing Plan X, First Level Appeal Denial (2016); and then citing Plan X, Second Level Appeal Denial (2016)).
[135] See id. Mr. Smith’s complaint stated, “an appropriate remedy would be that Health Insurance Plan cover [the] Provider’s medical service as in-network.” Id.
[136] See supra Introduction. For a full recount, see Hancock, supra note 2.
[137] Complaint to N.Y. Att’y Gen., supra note 121.
[139] Complaint to N.Y. Att’y Gen., supra note 121.
[140] Consumer Rep., Getting Started on Surprise Medical Bills: An Advocate’s Guide 1, 7 (2015), https://advocacy.consumerreports.org/wp-content/uploads/2015/11/SurprisebillsAdvocatesGuide.pdf [https://perma.cc/BK2V-HTE3] (identifying that states have reported that consumers often end up paying medical bills because they are unaware that they don’t have to pay under surprise bill laws).
[141] Complaint to N.Y. Att’y Gen., supra note 121. To file a complaint on misinformation, a consumer should file with the Department of Financial Services and/or with the New York Attorney General. Helen T. Hoffman, Filing A Complaint with the New York State Department of Financial Services, N.Y. St. Soc’y for Clinical Soc. Work (Oct. 15, 2014), https://www.nysscsw.com/assets/filing%20a%20complaint%20with%20the%20new%20york%20state%20department%20of%20financial%20services.pdf [https://perma.cc/E59A-QFUP] (“[I]f you have reason to believe that an insurance company is acting contrary to the statutes and regulations contained in N.Y.S. insurance law the Department has stated that it will investigate. . . . It doesn’t hurt to write the Attorney General. Their area is consumer health.”). The Department of Financial Services (DFS) addresses complaints for out-of-network disputes under its surprise bill enforcement procedures. See N.Y. Comp. Codes R. & Regs. tit. 23, § 400.5(d) (2019) (“If the health care plan receives a claim for services of a non-participating health care provider that is not submitted with an assignment of benefits form and the health care plan denies the claim because the health care provider is a non-participating provider, the health care plan shall, upon receipt of the assignment of benefits form, comply with the requirements of subdivision (b) of this section.”). Section 400.5(b) encompasses surprise bill requirements for health plans surrounding notice to both the insured and the provider and explanation of next steps. Id. § 400.5(b). DFS further describes the “process” regarding disputes on surprise bills, which includes out-of-network provider directory disputes. Id. § 400.7. While this section does not provide a standard of proof, it provides the following list of information the patient should provide, among other basic disclosures: “an explanation of the circumstances and complexity of the particular case, including time and place of the service” and “any other information the patient deems relevant.” Id. § 400.7(e). This requirement does not provide any hard standard of proof. See id. Further, DFS explained that in determining the validity of the patient’s claim, the Independent Dispute Resolution Entity will consider disparities between fees, the provider’s training, “[t]he circumstances and complexity of the case; [p]atient characteristics; and [t]he usual and customary cost of the service.” Surprise Medical Bills, N.Y. St. Dep’t Fin. Servs., https://www.dfs.ny.gov/consumers/health_insurance/surprise_medical_bills [https://perma.cc/YME9-LXKN]; see also Out-of-Network Law (OON) Guidance (Part H of Chapter 60 of the Laws of 2014), N.Y. St. Dep’t Fin. Servs., https://www.dfs.ny.gov/insurance/health/OON_guidance.htm. [https://perma.cc/2TPX-QKYX]. The instructions provided by the Attorney General’s Health Care Bureau ask consumers to “enclose COPIES of any documentation with regard to this complaint.” N.Y. Office of the Att’y Gen., Health Care Bureau, Complaint Form, https://ag.ny.gov/sites/default/files/health_care_complaint_form.pdf [https://perma.cc/F6VW-UD5C]. As a result, many patients are unsure of what information to document to provide sufficient evidence of misinformation. See id.
[142] See, e.g., Consumer Rep., Getting Started on Surprise Medical Bills: An Advocate’s Guide, supra note 140, at 3. Consumer Reports identified a woman named Cesia, who called her insurance plan and spoke to a customer representative. Id. The representative assured her that her son’s pediatrician was in-network. Id. After a few months of taking her son for checkups, however, she received bills from his pediatrician stating that her insurance would not cover the visits. Id. Unlike Mr. Smith, Cesia was not able to have the visits covered given her lack of physical evidence of misinformation. See id.
[143] Complaint to N.Y. Att’y Gen., supra note 121; see N.Y. Ins. Law § 4324(a)(17) (McKinney 2019).
[144] See N.Y. Ins. Law § 4324(a)(17); see also Kaiser Employer Health Benefits Survey, supra note 97 (highlighting that, in 2017, sixty percent of covered workers had a completely or partially self-funded plan).
[145] Emily Bazar, For Millions of Insured Americans, State Health Laws Don’t Apply, Wash. Post (Nov. 16, 2017), https://www.washingtonpost.com/national/health-science/for-millions-of-insured-americans-state-health-laws-dont-apply/2017/11/16/138f4476-cab7-11e7-b506-8a10ed11ecf5_story.html?utm_term=.1948b7b8dbd7 [https://perma.cc/JA8T-7F6V].
[146] See Hancock, supra note 2.
[147] “If you’re among the millions of Americans with a category of job-based health coverage known as self-funded insurance, most state health care laws do not apply to you.” Bazar, supra note 145.
[148] For example, while this Note will not discuss it in detail, the system’s failure to hold beneficiaries harmless when contesting lack of coverage due to misinformation is one apparent problem that inhibits consumers from making claims. This is because no language in Title 42 specifically mandates that consumers who seek care in reliance on misinformation be held harmless. See 42 C.F.R. pt. 438 (2019). For example, after Ms. Doolin reported misinformation, her insurer was still able to send her bill to collections, having a severe impact on her credit. Hancock, supra note 2.
[149] See Kaiser Employer Health Benefits Survey, supra note 97; see also 42 C.F.R. § 438.10(b) (2019) (indicating that the provision only applies to “managed care” plans).
[150] See Kaiser Employer Health Benefits Survey, supra note 97; see also Bazar, supra note 145 (“Among companies with 5,000 or more employees, 94 percent of covered workers were in self-funded plans last year, KFF data show.”). But see Self-Insured Group Health Plans, Self-Insurance Inst. Am., Inc., https://www.siia.org/i4a/pages/index.cfm?pageID=4546 [https://perma.cc/JC7G-BJC4] (“According to a 2000 report by the Employee Benefit Research Institute (EBRI), approximately fifty million workers and their dependents receive benefits through self-insured group health plans sponsored by their employers. This represents 33% of the 150 million total participants in private employment-based plans nationwide.”). Based on this variance, it seems that more employers have switched to self-funded plans since 2000. See id. For a full understanding of the difference between self-funded and fully-insured plans, see supra Section I.C.4.
[151] Kaiser Employer Health Benefits Survey, supra note 97.
[152] Brandon Downs, Fully-Insured Plans vs. Self-Insured Plans, Bus. Benefit Group (Apr. 13, 2018), https://www.bbgbroker.com/fully-insured-plans-vs-self-insured-plans [https://perma.cc/PJF8-TRGS].
[154] Id.; Bazar, supra note 145 (“More businesses—including smaller ones—are self-insuring because they can save money, says Dean Hoffman, an employee benefits consultant based in Wisconsin who specializes in self-insured plans.”).
[155] Bazar, supra note 145 (“One way [employers] save is by avoiding the cost of complying with state-mandated benefits.”).
[156] See 42 C.F.R. pts. 400–600 (2019) (enumerating regulations imposed by the HHS Centers for Medicare & Medicaid Services); see also Hancock, supra note 2.
[157] See supra notes 105–109 and accompanying text.
[158] Provider Directory Regulations: A State-by-State Guide, supra note 87; see, e.g., N.Y. Ins. Law § 4324(a)(17) (McKinney 2019); Cal. Health & Safety Code § 1367.27(e)(1) (West 2019).
[158] N.Y. Ins. Law § 4324 (a)(17).
[159] See Kaiser Employer Health Benefits Survey, supra note 97; see also Eibner et al., supra note 97, at 54–57.
[160] Kaiser Employer Health Benefits Survey, supra note 97.
[161] Id. (“Federal law (the Employee Retirement Income Security Act of 1974, or ERISA) exempts self-funded plans established by private employers from most state insurance laws, including reserve requirements, mandated benefits, premium taxes, and consumer protection regulations.”).
[163] Id.; Bazar, supra note 145.
[164] Bazar, supra note 145; Ahn, supra note 10, at 754–59.
[166] Id. (“It might not be obvious that you’re covered by a self-funded plan . . . . ‘To the consumer, it feels no different,’ says Karen Pollitz, a senior fellow at KFF. ‘If you work for a big company, it’s a pretty good bet you’re in a self-funded plan.’ If you are, you may feel the difference in coverage, consumer protection and grievance procedures, however. ‘The only consumer protections available to those folks are just what federal law provides,’ Ma says.”); see Is Your Health Plan Self-Insured?, supra note 92.
[167] See Bazar, supra note 145.
[168] Provider Directory Regulations: A State-by-State Guide, supra note 87 (“Where there are no state requirements, the following CMS guidelines must be followed: Provider directories must contain relevant and accurate provider information. This will be implemented through directory maintenance through monthly updates of provider information and quarterly touch points with providers within a Qualified Health Plan network.”).
[169] For Medicare Plans, see 42 C.F.R. § 422.752(a) (2019) (“All intermediate sanctions. For the violations listed in this paragraph, CMS may impose one or more of the sanctions . . . .”). For Medicaid Plans, see id. § 438.700(a) (“Each State that contracts with an MCO must, and each State that contracts with a PCCM or PCCM entity may, establish intermediate sanctions (which may include those specified in § 438.702) that it may impose if it makes any of the determinations specified in paragraphs (b) through (d) of this section. The State may base its determinations on findings from onsite surveys, enrollee or other complaints, financial status, or any other source.”); see also id. § 438.700(b) (“A State determines that an MCO acts or fails to act as follows: . . . (4) Misrepresents or falsifies information that it furnishes to CMS or to the State. (5) Misrepresents or falsifies information that it furnishes to an enrollee, potential enrollee, or health care provider.”); id. § 438.700(c) (“A State determines that an MCO, PCCM or PCCM entity has distributed directly, or indirectly through any agent or independent contractor, marketing materials that have not been approved by the State or that contain false or materially misleading information.”).
[170] See Provider Directory Regulations: A State-by-State Guide, supra note 87.
[172] See Jacobi et al., supra note 13, at 144–45.
[174] See Gerrit De Geest & Giuseppe Dari-Mattiacci, The Rise of Carrots and the Decline of Sticks, 80 U. Chi. L. Rev. 341, 354–61 (2013).
[176] For one such example, psychologist Lawrence Kohlberg studied the relationship between morality and development, and the development of these ideas in conjunction with legal and political issues. See Cheryl E. Sanders, Lawrence Kohlberg’s Stages of Moral Development, Encyclopedia Britannica, https://www.britannica.com/science/Lawrence-Kohlbergs-stages-of-moral-development [https://perma.cc/GLD5-76ZB]. For a modern interpretation of this theory, see Amir N. Licht, Social Norms and the Law: Why Peoples Obey the Law, 4 Rev. L. & Econ. 715, 736–39 (2008).
[177] Saul McLeod, Edward Thorndike: The Law of Effect, Simply Psychol., https://www.simplypsychology.org/edward-thorndike.html [https://perma.cc/YW9M-DS3D] (last updated 2018) (“[O]perant conditioning involves learning from the consequences of our behavior.”).
[179] Saul McLeod, Skinner—Operant Conditioning, Simply Psychol., https://www.simplypsychology.org/operant-conditioning.html [https://perma.cc/92CR-6CBQ] (last updated 2018).
[180] J.E.R. Staddon & D.T. Cerutti, Operant Conditioning, 54 Ann. Rev. Psychol. 115 (2002); McLeod, supra note 179.
[181] McLeod, Skinner – Operant Conditioning, supra note 179.
[182] See Bill Wirtz, Don’t Ask About the Law, Ask About Its Enforcement, Found. for Econ. Educ. (Jan. 8, 2018), https://fee.org/articles/dont-ask-about-the-law-ask-about-its-enforcement [https://perma.cc/RJ8G-C6BF]; see, e.g., Barbara Finamore et al., The Unprotected Environment: Case Studies Illustrating the Need for New Solutions, 15 Fordham Envtl. L. Rev. 428, 429–36 (2004) (describing how one reason China has not improved its environmental footprint is due to lack of enforcement). For another example, the Industrial Revolution created new risks to public welfare and, ultimately, culminated in necessary changes in law to protect citizens. See David A. Dana & Hannah J. Wiseman, A Market Approach to Regulating the Energy Revolution: Assurance Bonds, Insurance, and the Certain and Uncertain Risks of Hydraulic Fracturing, 99 Iowa L. Rev. 1523, 1526 (2014). Prior to increased regulations, factory workers were underpaid and forced to work in unsafe and unsanitary working conditions. See Eric Hopkins, Working Hours and Conditions During the Industrial Revolution: A Re-Appraisal, 35 Econ. Hist. Rev. 52, 52 (1982). Of particular concern were the unsafe conditions and grueling hours for children working in British factories. Responses to the Industrial Revolution, The Government Response to Child Labor: The Factory Acts, Mod. World Hist., https://webs.bcp.org/sites/vcleary/modernworldhistorytextbook/industrialrevolution/responsestoIR.html (last visited Nov. 6, 2018). Eventually, in response to these conditions, Parliament passed the Factory Act of 1833 to regulate excessive child labor to limit how many hours children could work. Id. At the outset, because only four inspectors were employed to evaluate thousands of factories, lack of enforcement kept any change in factory conditions from truly being implemented. Id. However, once Parliament began creating mandatory education laws and increased enforcement, conditions and practice slowly began to improve. Id.
[183] Harold Hongju Koh, How Is International Human Rights Law Enforced?, 74 Ind. L.J. 1397, 1401–02 (1998).
[186] See McLeod, Skinner – Operant Conditioning, supra note 179.
[187] According to Aaron Albright, a spokesman for CMS, “so far, no plans have been fined or kicked off the enrollment sites for having poor doctor directories . . . which would enforce the rules.” Hancock, supra note 2.
[188] McLeod, Skinner – Operant Conditioning, supra note 179; see generally B.F. Skinner, The Behavior of Organisms 43 (Richard M. Elliot ed., 1938).
[189] See, e.g., Cal. Health & Safety Code § 1367.27(e)(1) (West 2019).
[190] See, e.g., id. § 1368.04(a).
[191] Id. (“The director shall periodically . . . audit, investigative, or enforcement actions should be undertaken by the department.”).
[192] About the DMHC, Dep’t Managed Health Care, http://www.dmhc.ca.gov/aboutthedmhc.aspx [https://perma.cc/5DSW-9QGM] (“The Division of Provider Networks reviews plan provider networks to ensure networks have the right types of providers necessary to deliver services promised under enrollees’ contracts, meet geographic access requirements, meet provider to enrollee ratio requirements, and have a sufficient number of providers to offer appointments within timely access standards.”); see, e.g., DMHC Fines Blue Shield and Anthem for Inaccurate Provider Directories, Dep’t Managed Health Care (Nov. 3, 2015), http://www.dmhc.ca.gov/AbouttheDMHC/Newsroom/November3,2015.aspx [https://perma.cc/6XZC-5FAE] (exemplifying actual enforcement). This example is the model suggested to be implemented across states.
[193] Deborah Farringer, Everything Old Is New Again: Will Narrow Networks Succeed Where HMOs Failed?, 34 Quinnipiac L. Rev. 299, 323 (2016); see also Complaint & Demand for Jury Trial, Brown v. Blue Cross of Cal., No. BC554949 (Cal. Super. Ct. Aug. 19, 2014), 2014 WL 4379584.
[194] Consumer Rep., Getting Started on Surprise Medical Bills: An Advocate’s Guide, supra note 140, at 3.
[195] Farringer, supra note 193, at 323. Farringer notes:
DMHC’s findings were based upon a telephone survey in which it found that almost 13% of the physicians listed in Anthem’s Covered California directory were not in the location listed, and that nearly 13% of the physicians listed in the directory reported that they were not willing to accept new patients enrolled in plans from Covered California.
Id.
[196] DMHC Fines Blue Shield and Anthem for Inaccurate Provider Directories, supra note 192. For further discussion, see infra Section III.B.
[197] Blue Shield of Cal., Fact Sheet (2018), https://news.blueshieldca.com/internal_redirect/cms.ipressroom.com.s3.amazonaws.com/347/files/20185/Fact%20Sheet%20DRAFT04_graphical_201806201759.pdf [https://perma.cc/G9PB-KRLA].
[198] See McLeod, Skinner – Operant Conditioning, supra note 179.
[199] For example, in 2017 in New York, the Attorney General cited that nineteen of the complaints received from consumers involved “health plan errors, such as a plan’s failure to pay claims, processing errors, payment of incorrect amounts, or deductible and/or copayment errors.” N.Y. State Office of the Att’y Gen., Health Care Bureau Annual Report 8 (2018) https://ag.ny.gov/sites/default/files/final_hcb_annual_report_20172_002.pdf [https://perma.cc/3EWT-B879]. This included plan misinformation, described by the Attorney General as “lack of clarity about out-of-network coverage/reimbursement, and consumers’ lack of understanding about out-of-network provider reimbursement rates and out-of-pocket liability for seeing an out-of-network provider.” Id. However, despite such prevalence, the Attorney General only reported on one actual enforcement action. Id. at 10. Further, while the Attorney General found that Oxford had improperly denied over 2,500 claims and $500,000 worth of care, the plan was only fined $35,000 by the state. Id.
[200] See Patient Protection and Affordable Care Act (ACA), Pub. L. No. 111-148, 124 Stat. 119, 130–270 (2010) (Title I is called: “Quality, Affordable Health Care For All Americans”); Affordable Care Act (ACA): What Is the Affordable Care Act, supra note 10.
[201] 42 U.S.C. § 300gg-15(a) (2018) (“[T]he Secretary shall develop standards for use by a group health plan and a health insurance issuer offering group or individual health insurance coverage . . . that accurately describes the benefits and coverage under the applicable plan or coverage.”).
[202] Some may argue that a court may not review HHS’s decision because there is a presumption that an agency decision not to act is precluded from review because the action is “committed to agency discretion by law.” 5 U.S.C. § 701(a)(2) (2018); see Heckler v. Chaney, 470 U.S. 821, 834–38 (1985). However, this decision looks more like Bowen, where the court found reviewable HHS’s decision to distinguish reimbursement for health providers based on board certification. Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 673, 679–80 (1986). Therefore, there is a presumption for review on any agency action. See 5 U.S.C. § 704; Abbott Labs. v. Gardner, 387 U.S. 136, 140–41 (1967). Here, HHS has acted in choosing to protect some beneficiaries, and not others. As such, the court would have jurisdiction to review this decision under arbitrary and capricious standard of review given Congress’s mandate for “[t]he Secretary [to] develop standards . . . that accurately describes the benefits and coverage under the applicable plan or coverage.” 42 U.S.C. § 300gg-15(a).
[203] See Amartya Sen, Universal Health Care: The Affordable Dream, Guardian (Jan. 6, 2015, 12:59 AM), https://www.theguardian.com/society/2015/jan/06/-sp-universal-healthcare-the-affordable-dream-amartya-sen [https://perma.cc/R8U7-8WPX].
[205] Affordable Care Act (ACA): What Is the Affordable Care Act, supra note 10.
[207] Affordable Care Act (ACA): What Is the Affordable Care Act, supra note 10.
[208] The above Proposed Regulation models the language used for Medical Assistance Programs. For reference to such language, see 42 C.F.R. § 438.10(h)(1) (2019). The above Proposed Regulation will hereinafter be cited as Proposed Regulation. For a breakdown of current Medicaid and QHP requirements, see supra Part I.
[209] See Kaiser Employer Health Benefits Survey, supra note 97.
[210] See Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 548–55 (2012); United States v. Lopez, 514 U.S. 549 (1995).
[211] See Sebelius, 567 U.S. 519.
[212] See Lopez, 514 U.S. at 567.
[213] See Sebelius, 567 U.S. at 548–55.
[214] See Gonzales v. Raich, 545 U.S. 1, 17 (2005); see also Wickard v. Filburn, 317 U.S. 111, 128 (1942) (holding that a penalty for exceeding market quota for wheat grown on his farm for home consumption was constitutional even though the wheat was grown for personal consumption and not with the intent to enter the stream of commerce). Justice Jackson explained, “[E]ven if appellee’s activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’” Id. at 125.
[215] Sebelius, 567 U.S. at 548–55. Justice Roberts explained that “[t]he Framers gave Congress the power to regulate commerce, not to compel it.” Id. at 555. This holding, however, was greatly contested by four justices, who argued that Congress could invoke the Individual Mandate under the Commerce Clause given Congress’s rational basis for concluding that the failure of individuals to obtain health insurance would have substantially negative effects on commerce. Id. at 585–95 (Ginsberg, J., dissenting in part).
[216] See Dustin Chambers & Courtney A. Collins, How Do Federal Regulations Affect Consumer Prices? (Feb. 2016) (working paper) (https://www.mercatus.org/system/files/Chambers-How-Regs-Affect-Prices-v2.pdf [https://perma.cc/89NC-2WUC]) (discussing the impact that regulations have on consumer prices and how it may impact the homes with lowest household income most). “A significant and often hidden cost of regulation is its effect on consumer prices. As with taxes, the burden of regulatory costs is likely to be passed along, at least in part, to consumers in the form of higher prices.” Id. at 20.
[217] Compare Proposed Regulation, supra text accompanying note 208, with Sebelius, 567 U.S. 519.
[218] Sebelius, 567 U.S. at 548–55.
[219] Proposed Regulation, supra text accompanying note 208.
[220] See United States v. Darby, 312 U.S. 100 (1941).
[221] Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201–219 (2018).
[223] “While manufacture is not of itself interstate commerce the shipment of manufactured goods interstate is such commerce and the prohibition of such shipment by Congress is indubitably a regulation of the commerce. The power to regulate commerce . . . extends not only to those regulations which aid, foster and protect the commerce, but embraces those which prohibit.” Id. at 113.
[224] Proposed Regulation, supra text accompanying note 208; accord Darby, 312 U.S. at 110.
[225] Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 555 (2012).
[226] United States v. Lopez, 514 U.S. 549 (1995).
[228] Id. at 567 (“The possession of a gun in a local school zone is in no sense an economic activity that might, through repetition elsewhere, substantially affect any sort of interstate commerce. Respondent was a local student at a local school; there is no indication that he had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.”).
[230] See Gonzales v. Raich, 545 U.S. 1 (2005) (holding that the criminalization of marijuana to intrastate growers and users of marijuana through the Controlled Substances Act did not violate the Commerce Clause).
[231] Id. at 17 (“Congress[] [has] power to regulate purely local activities that are part of an economic ‘class of activities’ that have a substantial effect on interstate commerce.”).
[233] Id. at 23 (“In contrast, in both Lopez and Morrison, the parties asserted that a particular statute or provision fell outside Congress’ commerce power in its entirety. This distinction is pivotal for we have often reiterated that ‘[w]here the class of activities is regulated and that class is within the reach of federal power, the courts have no power “to excise, as trivial, individual instances” of the class.’” (citations omitted)).
[234] See T.R. Reid, How We Spend $3,400,000,000,000, Atlantic (June 15, 2017) https://www.theatlantic.com/health/archive/2017/06/how-we-spend-3400000000000/530355 [https://perma.cc/W462-J9P4] (“Last year, America’s total medical costs hit a new record of $3.4 trillion, according to the federal government. That’s about 18 percent of the country’s total GDP, meaning that one out of every six dollars we spent in 2016 went to health care.”).
[235] David E. Williams, Health Care Plans for Multistate Employers, Benefits Guide (July 1, 2015), https://thebenefitsguide.com/health-care-plans-multistate-employers [https://perma.cc/NXX7-UCWY].
[236] See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 37 (1937).
[238] Cal. Health & Safety Code § 1368.04(a) (West 2019) (“The director shall periodically . . . audit, investigative, or enforcement actions should be undertaken by the department.”).
[239] See, e.g., About the DMHC: Office of Plan Monitoring, Dep’t. Managed Health Care, www.dmhc.ca.gov/aboutthedmhc.aspx [https://perma.cc/5DSW-9QGM] (explaining the role of Office of Plan Monitoring, further broken into Division of Plan Surveys and the Division of Provider Networks).
[240] Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 584 (2012) (“As we have explained, ‘[t]hough Congress’ power to legislate under the spending power is broad, it does not include surprising participating States with post-acceptance or “retroactive” conditions.’” (citation omitted)).
[241] Id. at 581 (“In this case, the financial ‘inducement’ Congress has chosen is much more than ‘relatively mild encouragement’—it is a gun to the head.” (citation omitted)).
[244] South Dakota v. Dole, 483 U.S. 203 (1987).
[245] See id. at 208–10; U.S. Const. art. I, § 8, cl. 1 (“The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the united states; but all duties, imposts and excises shall be uniform throughout the United States . . . .”).
[246] Dole, 483 U.S. at 212 (“Even if Congress might lack the power to impose a national minimum drinking age directly, we conclude that encouragement to state action found in § 158 is a valid use of the spending power.”).
[252] Compare id., with Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 583–85 (2012).
[253] See Public’s 2019 Priorities: Economy, Health Care, Education and Security All near Top of List, Pew Res. Ctr. (Jan. 24, 2019), http://www.people-press.org/2019/01/24/publics-2019-priorities-economy-health-care-education-and-security-all-near-top-of-list [https://perma.cc/A3MJ-XGN3] (“As economic and security concerns have become less prominent, the domestic issue[] of reducing health care costs . . . now rank[s] among the top tier of public priorities.”); Grace Sparks, What’s Important in 2018? Health Care, the Economy, Immigration, CNN, https://www.cnn.com/2018/06/27/politics/top-issues-kaiser-poll/index.html [https://perma.cc/9D8H-2PNY] (last updated June 27, 2018, 6:05 AM) (“Seventy-nine percent of the population says that health care and the economy and jobs are either the most important issue or a very important, but not the most important issue. Health care wins the award for ‘most important’ with a quarter saying so.”).
[254] Single-Payer Healthcare employs state sponsored healthcare for all residents under one universal plan. Andrea S. Christopher, Single Payer Healthcare: Pluses, Minuses, and What it Means for You, Harv. Health Pub.: Harv. Health Blog (June 27, 2016, 9:30 AM), https://www.health.harvard.edu/blog/single-payer-healthcare-pluses-minuses-means-201606279835 [https://perma.cc/E2RA-EUY3].
[255] See, e.g., Arthur Appleton, The Swiss Also Have a Private Health Care System. But Theirs Works, Fortune (Sept. 26, 2017), http://fortune.com/2017/09/26/health-care-bill-obamacare-repeal-switzerland [https://perma.cc/4NNX-CNS3] (explaining how Switzerland’s health care system mandates individuals to buy insurance through private, highly regulated, individual insurance plans).
[256] See Lorraine S. Wallace, A View of Health Care Around the World, 11 Ann. Fam. Med. 84 (2013).
[257] Affordable Care Act (ACA): What Is the Affordable Care Act, supra note 10; see also Dolgin & Dieterich, supra note 11, at 46–47.
[258] See Hancock, supra note 2; Haeder, Weimer & Mukamel, supra note 111, at 1160–66; see also Dickson, supra note 112.
[259] Kaiser Employer Health Benefits Survey, supra note 97.
[260] See Jacobi et al., supra note 13.