My focus was on provisions in the ACA, Section 1302 (e), allowing those under 30 and others who could show financial hardship to buy purely catastrophic coverage. Now, the AP's Ricardo Alonso-Zaldivar is out with a story* citing several experts who assert that the bronze plans to be offered in the insurance exchanges, available to all, are also essentially catastrophic coverage plans -- though that definition is contested. Those calling it catastrophic focus mainly on the percentage of costs covered:
On the surface, the minimum benefits requirement does seem to mandate comprehensive coverage. But another provision of the law works in the opposite direction, and the two have to be weighed together.Whether or not you consider the bronze plans 'catastrophic' coverage, it's plain that the drafters of the ACA went out of their way to minimize what those subject to the mandate would be required to purchase: unambiguously catastrophic coverage for those under 30 or showing financial hardship; high deductible coverage for those fully subject to the mandate. That minimalist approach should weigh heavily with the justices -- and possibly, as Marty Lederman (and I) have suggested, provide a path for them to uphold the mandate while further limiting it.
This second provision allows insurance companies to sell policies that have widely different levels of annual deductibles and copayments. A "platinum" plan would cover 90 percent of expected health care expenses, but on the bottom tier a bronze plan only covers 60 percent.
"The minimum that people will be required to buy under the health reform law is clearly a catastrophic plan," said [Richard] Levitt [head of the Kaiser Family Foundation's Initiative on Health Reform and Private Insurance]
In the March 27 Supreme Court pleadings on the mandate, Michael Carvin, one of two attorneys arguing for the plaintiffs, asserted that ""Congress prohibits anyone over 30 from buying any kind of catastrophic health insurance." Asked by AP's Alonso-Zaldivar about claims that the bronze plans are catastrophic coverage, he dismissed them:
Carvin says he stands by his statement in court that the law prohibits anyone over 30 from buying any kind of catastrophic insurance.Fine -- there's no agreed definition for "catastrophic coverage." But imagine if, in response to assertions that the mandate required excessive insurance purchases, either Verrilli or one of the liberal justices had pointed out that the ACA offers those subject to the mandate essentially two layers of what can reasonably be called catastrophic coverage -- an absolute bare-bones plan for those under 30 and those truly unable to afford the bronze -- even with subsidies, or with income high enough to disqualify them for subsidies -- and a high deductible option for everyone else. In other words, the mandate is minimized for those who either want to bear more risk or really can't afford more complete coverage. Carvin's categorical assertions would have looked a lot shakier.
"The bronze plan is not catastrophic coverage," said Carvin, who represents the National Federation of Independent Business.
"It's got all the minimum essential benefits in it," he added. "It's got to have wellness, preventive, contraceptives — all kinds of things a 30-year old would never need. It's not remotely catastrophic."
* On 4/1, I emailed two of Alonso-Zaldivar's colleagues covering the Supreme Court for the AP alerting them to the catastrophic coverage option in the ACA and the justices' apparent ignorance of it, with a link to my 3/31 post. Alonso-Zaldivar has acknowledged to me that the email was passed to him but says that his article was focused on "a different issue" (the 'catastrophic' nature of the bronze option as opposed to the more limited and unambiguously catastrophic option for those under 30 or showing hardship). I disagree that these are different 'issues' -- both are crucial aspects of limits on the mandate. But I am glad in any case that the issue is out there.