Crossley on Health Insurance Discrimination Against the Unhealthy

New on Westlaw: Mary Crossley, Discrimination Against the Unhealthy in Health Insurance, 54 U. Kan. L. Rev. 73 (2005). From the introduction:

The observation that increased copayment requirements and consumer-driven vehicles such as health savings accounts may disproportionately burden the unhealthy is not novel. Indeed, concerns about the inequity of this burden have been voiced at least since the policy debates over including a medical savings accounts demonstration project in HIPAA. This Article reviews the policy arguments for and against the shifting of insurance risk to individual health-care consumers, but then moves beyond partisan debate to examine emerging research on the impacts of risk shifting. This research suggests that the repercussions do not simply impose heavier financial costs onto unhealthy individuals; they also affect health-care consumption and, ultimately, health status. In sum, newer forms of coverage may leave unhealthy individuals underinsured and thereby exposed to many of the same harms that uninsured persons face.

In the end, this Article briefly suggests reasons for objecting to and seeking to curb the trend toward the shifting of risk to individual insureds. First, we might find the disproportionate burden visited upon the unhealthy troubling because of a sense that this disparate impact is somehow associated with social inequality and violates their civil rights. Alternatively, we might understand the inequality of burdens as indicating an unjust distribution of consumerism's benefits and burdens.