Can You Really Keep Your Health Plan? The Limits of Grandfathering under the Affordable Care Act
Journal of Corporation Law, Vol. 36, No. 4, p. 753, 2011
28 Pages Posted: 26 Apr 2011 Last revised: 2 Oct 2015
Date Written: April 22, 2011
This article examines the rhetoric and reality of President Obama's repeated hallmark promise during federal health reform that "you can keep your health plan," as one example of the Administration's equivocal stance toward deregulation. Although rhetorically supporting the popular preference for decreased government involvement in health care, the Obama Administration, in several instances, has achieved significant re-regulation through the intricacies of executive branch rule-making. The Affordable Care Act's "grandfather rule" (Section 1251, "Preservation of Right to Maintain Existing Coverage") purports to uphold the "you can keep your health plan" promise. But the regulatory requirements for plans to retain grandfathered status are nearly impossible to abide under existing market conditions. As a result, most plans will fairly quickly relinquish grandfathered status. When they do, the plans will have to come into full compliance with the Affordable Care Act's host of new requirements for health plans. At that point, "your plan" will necessarily change. By publicly promising one result while achieving the opposite result by agency rule-making, the Administration risks credibility and trust.
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