Setting National Coverage Standards for Health Plans Under Healthcare Reform

Abstract

On March 23, 2010, President Barack Obama signed into law the Patient Protection Affordable Care Act (Affordable Care Act), the most far-reaching healthcare reform legislation since the establishment of the Medicare program in 1965. The Affordable Care Act directs the U.S. Department of Health and Human Services (HHS) to establish a minimum level of health benefits, called the essential health benefits, that must be offered by certain health plans, including all plans participating in the individual and small group health insurance markets. This Article argues that this process for defining the essential health benefits will fail to produce coverage standards that are both fair and serve the public interest, as political considerations will lead politicians to mandate coverage of health benefits desired by the public and special interest groups, regardless of the merits of doing so. To reduce the influence of short-term politics in the development of national coverage standards, the Article recommends two fundamental changes to the process. First, Congress should establish an independent commission that would make recommendations to Congress regarding the essential health benefits. Second, Congress should adopt internal rules of congressional procedure that, in the event that lawmakers modify the commission’s recommendations, obligate them to offset the costs of mandating coverage of certain conditions or procedures by excluding other benefits from the essential health benefits. Together, these requirements would make it more difficult for lawmakers to modify the shape of the essential health benefits for political gain, as they would intensify conflict among interest groups and place procedural hurdles in the path of mandated benefits legislation. With significant independence from both Congress and the president, a commission would then have the freedom to engage in a thoughtful, deliberative review of the relevant scientific, economic, and moral factors, with primary consideration given to the overall fairness of the coverage standards rather than their political impact.

Keywords: health reform, health plans, coverage, independent agency, administrative law, commission, Affordable Care Act, PPACA, rationing, congressional procedures, PAYGO