Health care access: access after health care reform

• Pages: 591-626
• Date: 01 January 2024
• Published date: 01 January 2024
• Author: Sydney Brinker,Kyle Casey,Anna Rose Aubrey,Brianna Stammetti,Katie Swenson,Siena Hohne,Jessica Flynn,Lindsay Sergi
• Subject Matter: Derecho Civil

HEALTH CARE ACCESS: ACCESS AFTER HEALTH CARE

REFORM

EDITED BY SYDNEY BRINKER, KYLE CASEY, ANNA ROSE AUBREY,

BRIANNA STAMMETTI, KATIE SWENSON, SIENA HOHNE, JESSICA FLYNN,

AND LINDSAY SERGI

I. INTRODUCTION.......................................... 592

II. BACKGROUND OF HEALTH CARE ACCESS IN THE UNITED STATES. . . . . . . 592

A. HEALTH CARE ACCESS LANDSCAPE PRIOR TO THE ACA . . . . . . . . 593

B. KEY CHANGES INTRODUCED UNDER THE ACA ............... 594

1. New Consumer Protections Effective September 23, 2010 595

2. The Insurance Marketplace and Employer-Related

Mandates from 2014 through 2017 . . . . . . . . . . . . . . . . . . . . 596

3. Improving Quality, Lowering Costs, and Expanding

Access to Quality Care Through 2024 .................. 597

4. Reforms to Medicare, Medicaid, and CHIP . . . . . . . . . . . . . 599

5. Changes to Medicaid’s Home and Community Based

Services (“HCBS”) Program .......................... 601

C. CHALLENGES TO THE ACA’S CONSTITUTIONALITY—

CONGRESSIONAL AUTHORITY ............................ 604

1. National Federation of Independent Business v. Sebelius. . . 604

2. King v. Burwell ..................................... 607

III. ACCESS TO SEX-SPECIFIC HEALTH CARE UNDER THE ACA . . . . . . . 608

A. CHALLENGES TO THE AFFORDABLE CARE ACT’S CONTRACEPTIVE

MANDATE (RELIGIOUS FREEDOM OBJECTIONS)............... 609

1. For-Prof‌it Corporations: Hobby Lobby . . . . . . . . . . . . . . . . . 610

2. Opt-Out Provisions for Religious Non-Prof‌its and

Non-Prof‌its Exempt from ERISA: Little Sisters of the Poor. . 611

3. Opt-Out Provisions for Religious Non-Prof‌its in General

Post-Little Sisters: Wheaton College ................... 613

B. EXPANDING ACCESS TO FAMILY-PLANNING SERVICES THROUGH

MEDICAID ......................................... 613

C. PROHIBITION ON “GENDER RATING” IN THE PRIVATE INSURANCE

MARKETPLACE...................................... 614

D. EXPANDING ACCESS TO SEX-SPECIFIC HEALTH CARE SERVICES IN

THE PRIVATE INSURANCE MARKETPLACE .................... 615

IV. THE ACA’S PROHIBITION ON DISCRIMINATION . . . . . . . . . . . . . . . . . 616

A. THE ACA AND THE INTERSECTION OF RACIAL, ETHNIC, AND

GENDERED HEALTH DISPARITIES ......................... 617

1. Background......................................... 617

591

2. Measures in the ACA to Help Eliminate Health

Disparities 618

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3. Additional Measures Used to Implement ACA and

Eliminate Health Disparities .......................... 619

B. TRANSGENDER HEALTH DISPARITIES AND SECTION 1557 620........

V. CONCLUSION .......................................... 626

I. INTRODUCTION

Health services in the United States are distributed to individuals through a

dual system of insurers and providers.

1

Although Americans have the option to pay

providers themselves and hospitals are required to provide emergency treatment,

2

in

practice, “health care access” requires access to both insurance and willing providers.

To expand such access, Congress and the President engaged in an effort to overhaul

the health care f‌inancing and delivery systems, resulting in the passage of the Patient

Protection and Affordable Care Act (“ACA”) and the Health Care and Education

Reconciliation Act (“HCERA”).

3

In 2016, estimated out-of-pocket costs for individu-

als qualifying for cost-sharing reductions were markedly lower—with plan and

health care usage variations—in the largest markets of the thirty-eight states which

undertake marketplace enrollment via the federal website.

4

S. R. Collins, M. Gunja, & S. Beutel, How Will the Affordable Care Act’s Cost-Sharing

Reductions Affect Consumers’ Out-of-Pocket Costs in 2016?, THE COMMONWEALTH FUND (Mar. 17,

2016), https://perma.cc/3PT2-KPK8.

Additionally, since 2017,

marketplace insurers have been able to offer consumers standard insurance plans to

bring about more equal cost sharing.

5

However, health exchange premiums saw a

greater increase for 2023-2024 plans versus 2022-2023 plans.

6

KFF, Percent Change in Average Marketplace Premiums by Metal Tier, 2018-2024, https://perma.

cc/8VVB-MVMP.

Part I of this Article provides a brief overview of health care access and

includes the status of access prior to the ACA, key changes introduced by the

ACA, and legislative and judicial challenges to the ACA. Part II discusses provi-

sions of particular pertinence to women and transgender men. Part III discusses

the prohibition on discrimination based on gender identity and the remedies for

such individuals.

II. BACKGROUND OF HEALTH CARE ACCESS IN THE UNITED STATES

To wholly appreciate the context and conditions framing the recent history of

health care access in the United States, this section will discuss: (A) Americans’

1. See Eleanor D. Kinney, Tapping and Resolving Consumer Concerns About Health Care, 26 AM. J.

L. & MED. 335, 344 (2000).

2. See Emergency Medical Treatment and Active Labor Act, 42 U.S.C.A. § 1395dd(a)(h) (West).

3. Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010) [hereinafter

referred to collectively as ACA]; Health Care and Education Reconciliation Act of 2010, Pub. L. No.

111-152, 124 Stat. 1029 (2010).

4.

5. Id.

6.

592 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 25:591

access to health care prior to the adoption of the ACA; (B) signif‌icant transforma-

tions to the United States health care landscape advanced by the ACA, including

new consumer safeguards, employer and insurance marketplace-related man-

dates, enhanced quality and access to health care through 2023, and social health

care program reforms; and (C) specif‌ic cases challenging the legality of the ACA.

A. HEALTH CARE ACCESS LANDSCAPE PRIOR TO THE ACA

Before the ACA was written in 2008, 202.6 million Americans (67.2% of the

U.S. population in 2008) were covered by private health insurance,

7

CARMEN DENAVAS-WALT, BERNADETTE D. PROCTOR, & JESSICA C. SMITH, U.S. CENSUS BUREAU,

INCOME, POVERTY, & HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2012 CURRENT

POPULATION REPORTS 67, Table C-1 (2013), https://perma.cc/Z5XX-G5DQ.

44.8 million

Americans were uninsured,

8

and as many as 25 million more were underinsured.

9

“Underinsured” refers to people who “have health coverage that does not adequately protect them

from high medical expenses.” Cathy Schoen, Sara R. Collins, Michelle M. Doty, & Jennifer L. Kriss,

How Many Are Underinsured? Trends Among U.S. Adults, 2003 and 2007, COMMONWEALTH FUND

(June 10, 2008), https://perma.cc/Q7SM-4848.

This phenomenon was largely the result of changes in insurance design that

increased out-of-pocket costs

10

for both the poor and those earning above 200%

of the Federal Poverty Level (FPL).

11

Under this patchwork system prior to the ACA, there were numerous systemic

problems within the individual health care coverage space. Millions of Americans

did not have insurance, but even with insurance, nearly one in two people could be

discriminated against due to gender or a preexisting condition.

12

David Simas, Health Coverage Before the ACA, And Why All Americans Are Better Off Now,

OBAMAWHITEHOUSE.ARCHIVES.GOV (Jan. 23, 2014), https://perma.cc/333P-LC7Q.

Private insurers

could deny anyone access to health care coverage due to their “health status,” using

“pre-existing” conditions like cancer or pregnancy to turn people away.

13

See Nicole Rapfogel, Emily Gee, & Maura Calsyn, 10 Ways the ACA Has Improved Health Care

in the Past Decade, CTR. FOR AM. PROGRESS (Mar. 23, 2023), https://perma.cc/Q7GR-HND9.

Women

in particular faced insurance costs up to 1.5 times more than others and even then,

62% of insurance plans did not cover essential services like maternity coverage.

14

Insurers also increased insurance premiums by an average of 10% yearly for indi-

viduals who stayed in the same plan in the three years before the ACA was

enacted.

15

Press Release, Commonwealth Fund, New Analysis of Health Insurance Premium Trends in the

Individual Market Finds Average Yearly Increases of 10 Percent or More Prior to the Affordable Care

Act (Jun. 5, 2014), https://perma.cc/N2LW-BNN5.

Under the ACA, twenty million more Americans, spanning income

levels, races, and ages, gained health care coverage between 2010 and 2016.

16

7.

8. Id.

9.

10. Id.

11. Id.

12.

13.

14. Id.; see also Caroline Rosenzweig, Usha Ranji, & Alina Salganicoff, Health and the 2016

Election: Implications for Women, 26 WOMEN’S HEALTH ISSUES 585, 585–86 (2016).

15.

16. NAMRATA UBEROI, KENNETH FINEGOLD, & EMILY GEE, U.S. DEP’T OF HEALTH & HUM. SERVS.,

HEALTH INSURANCE COVERAGE AND THE AFFORDABLE CARE ACT, 2010–2016 at 2 (2016), https://

perma.cc/H7G6-M5HR. See also Rapfogel, Gee, & Calsyn, supra note 13.

2024] HEALTH CARE ACCESS 593