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Health Care Reform and Efforts to Encourage Healthy Choices by Individuals

22 Pages Posted: 23 Feb 2014 Last revised: 20 Jul 2014

David Orentlicher

UNLV William S. Boyd School of Law

Date Written: February 21, 2014


While the Affordable Care Act (ACA) will do much to improve access to health care, it may do far less to address other problems in health care and health. For example, scholars have questioned whether ACA will have a big enough impact on health care costs.

This article considers another important defect in ACA. Experts have recognized that health depends to a substantial extent on the choices that people make about diet, exercise, and other daily behaviors. Optimal health care reform not only would ensure that people receive medical care when they become sick. It also would reduce the need for medical care by promoting healthier behavior. ACA tries to promote healthier choices by Americans in a number of its provisions. However, some of the key ACA provisions for promoting healthy lifestyles may be ineffective at best and counterproductive at worst.

In particular, Congress came up short when it tried to improve individual decisions about nutrition, exercise and other lifestyle choices that are important to personal health. ACA tries to encourage better dietary decisions with its menu labeling requirements, but those are likely to have little impact. Moreover, the Act’s promotion of employer wellness programs may actually undermine ACA’s efforts to improve access to health care.

While the government should do more to encourage good decisions about health by the public, it needs to do a much better job of basing its policies on empirical evidence. To the extent that research studies indicate which kinds of wellness policies are likely to work and which are likely to fail, too many policies, including those in ACA, fall into the likely-to-fail basket.

More importantly, the government needs to ensure that more empirical evidence is developed. While we know more than we did in the past about the effectiveness of different kinds of wellness policies, we have much more to learn if we want to identify policies that are likely to have a significant impact. As a committee of the Institute of Medicine recently observed, there are many potential policies to reduce obesity, but current knowledge does not tell us which policies can have the biggest impact.

Proceeding in the face of contrary data or in the absence of adequate data wastes time and money. It also makes it more difficult for lawmakers to pass sensible policies. A history of ineffective or counterproductive mandates can provoke a backlash against even good future mandates.

Keywords: Affordable Care Act, wellness, diet

JEL Classification: I12, I18

Suggested Citation

Orentlicher, David, Health Care Reform and Efforts to Encourage Healthy Choices by Individuals (February 21, 2014). 92 North Carolina Law Review 1637 (2014); Indiana University Robert H. McKinney School of Law Research Paper No. 2014-6. Available at SSRN:

David Orentlicher (Contact Author)

UNLV William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

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