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71 Hastings L.J. 261 (2019-2020)
Affording Obamacare

handle is hein.journals/hastlj71 and id is 261 raw text is: Articles Affording Obamacare ISAAC D. BUCK As it approaches its tenth birthday, the Patient Protection andAffordable Care Act (A CA) is devolving. Intended to solve problems that had vexed American health care for generations, the ACA built a comprehensive structure by providing more Americans with accessible health insurance, reordering the private insurance market, expanding and reconfiguring Medicaid, and installing rational incentives into America 's health care enterprise. Without question, it was the most important piece of health care legislation since the mid-1960s, and it brought about positive change for millions of Americans. However, over its short lifespan, the ACA has faced persistent practical, popular, and policy-based challenges. It remains politically tenuous, with the law 's imperfections fueling an uninterrupted barrage of legal, administrative, and regulatory attacks, which, piece by piece, have weakened its overall effectiveness. Instead of installing a comprehensive system, the ACA opted toprotectAmerican patients and beneficiaries from the market 's worst effects without any effective means for cost control. Its f ilure to address the cost of health care has continued to haunt it, making it unclear whether it will fully collapse or whether a mutated version will lumber into the future. Either would be devastating to the fiture ofAmerican health care. This cost challenge is vividly illustrated by the acute pain experienced by those who receive insurance through its newly constructed exchanges, where millions ofAmericans face rising premiums and deductibles. Using lessons from behavioral economics, this Article suggests a reimagining and reordering of the private ACA marketplace in an effort to put it on a more stable financialfooting. Tools from the field of behavioral economics relied upon in the federal Medicare program, public health laws, and employee wellness plans could be deployed to the ACA marketplaces by creating smarter subsidies that financially reward the most cost-conscious insurance companies. This would sharpen the incentive for insurance companies to seek increasing discounts, lowering the price of care. And no matter the future of the A CA, insights posited here must be part of any future reform effort to address the cost ofAmerican health care an indispensable, but consistently neglected policy goal. Associate Professor, University of Tennessee College of Law; Juris Doctor, University of Pennsylvania Law School; Master ofBioethics, University of Pennsylvania; Bachelor ofArts, Miami University (Ohio). Special thanks are owed to I. Glenn Cohen, Mark Hall, David Wolitz, Michael Higdon, and Teri Baxter for their insights and suggestions, and to the participants and attendees of the Health Law Policy, Biotechnology, and Bioethics Fall Workshop in September of 2018 at Harvard Law School. Any errors or omissions are my own.

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