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Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

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Publication Date

Spring 2008




University of Connecticut School of Law




In the United States, calls to expand access to health care, when not simply ignored, typically result in bills or legislation to reform health insurance. We are in the midst of just such a cycle today. Several states have adopted reform laws to make insurance available to most of their residents.' Presidential candidates are offering their own proposals for the nation's health care system.2 Former Treasury Secretary Paul O'Neill even declared that health care should be a right, adding that wealthier people should help pay for those who will never be able to afford their own care.' Most Americans cannot afford to pay for more than minor medical procedures out of their own pockets. Insurance is the vehicle that finances the rest.4 Thus, insurance has come to stand for health care.

Yet buying health insurance is not the same thing as buying health care. Conflating the two can exacerbate disagreements about the responsibilities of government, business, and individuals for health and health care.6 Health reform proposals reflect different philosophies about who should be responsible for certain health conditions-society at large, employers, or the individual herself. Current health insurance reform proposals borrow from both camps, combining provisions promoting social solidarity with provisions based on actuarial fairness.

This essay argues that amalgamating reforms that serve inconsistent goals can perpetuate, rather than resolve, conflict. Part I suggests that joining social insurance with commercial indemnity insurance provisions forges a contract for traditional indemnity coverage plus discretionary personal services-an "insurance + services" contract-which pulls the system in opposite directions, forcing insurers to act as both insurers and service providers. Part II examines a recent example of the service side of this insurance + services contract-coverage of so-called "wellness programs," which offer rewards for meeting specific standards of behavior. Often justified on grounds of actuarial fairness, they foster the idea that certain health conditions are matters of personal responsibility. Yet there has been virtually no discussion of what principles ought to govern the choice of conditions targeted by wellness programs. Experience to date suggests that such programs are likely to disadvantage those most in need of social assistance.

I conclude that the use of commercial insurance to provide access to care encourages reforms based on actuarial fairness instead of social solidarity. In the context of rising health care costs, the renewed emphasis on personal responsibility for health may unravel the social solidarity that prompted reform in the first place, especially for certain disfavored conditions or groups.7 These reforms may return us to the days before health insurance, and have the potential to undermine social solidarity beyond the insurance sphere.

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