¹ See The Tax Code and Health Insurance: Hearing Before the H. Comm. on Budget, 110^th Cong. (2007) [hereinafter Hearing]; see also Cong. Rsch. Serv., RL34767, The Tax Exclusion for Employer-Provided Health Insurance: Issues for Congress 9-10 (2011); Ellen O’Brien, Employers’ Benefits from Workers’ Health Insurance, 81 Milbank Q. 53 (2003).

² Kurt Eichenwald, Held Hostage by Health Insurance, N.Y. Times (Oct. 15, 2018), https://www.nytimes.com/2018/10/15/opinion/affordable-care-act-pre-existing-conditions.html [https://perma.cc/4YMT-6YMU].

³ Id.

⁴ Id.

⁵ Id.

⁶ Id.

⁷ See Bidisha Mandal et al., Health Insurance Coverage During the COVID-19 Pandemic: The Role of Medicaid Expansion, 57 J. Consumer Affs. 296, 296 (2022).

⁸ Comm. on Emp.-Based Health Benefits, Inst. of Med., Employment and Health Benefits: A Connection at Risk 49 (Marilyn J. Field & Harold T. Shapiro eds., 1993).

⁹ Id. at 66-71.

¹⁰ Aaron E. Carroll, The Real Reason the U.S. Has Employer-Sponsored Health Insurance, N.Y. Times (Sept. 5, 2017), https://www.nytimes.com/2017/09/05/upshot/the-real-reason-the-us-has-employer-sponsored-health-insurance.html [https://perma.cc/8N94-FP9R].

¹¹ Hearing, supra note 1, at 9.

¹² IBP, Inc., US Healthcare Sector – Organization, Management and Payment Systems Handbook 1, 94 (2015) (citing I.R.S. Priv. Ltr. Rul. P-H 1943-44 (Aug. 26, 1943)); see also Cong. Budget Off., The Tax Treatment of Employment Based-Health Insurance 23 (1994) [hereinafter Tax Treatment].

¹³ I.R.C. § 106(a) (1954) (“Except as otherwise provided in this section, gross income of an employee does not include employer-provided coverage under an accident or health plan.”).

¹⁴ Melissa A. Thomasson, The Importance of Group Coverage: How Tax Policy Shaped U.S. Health Insurance, 93 Am. Econ. Rev. 1373, 1373 (2003).

¹⁵ Tax Pol’y Ctr., Taxes and Health Care: How Might the Tax Exclusion for Employer-Sponsored Health Insurance (ESI) Be Reformed?, in Tax Policy Center Briefing Book (2020), https://www.taxpolicycenter.org/briefing-book/how-might-tax-exclusion-employer-sponsored-health-insurance-esi-be-reformed-0 [https://perma.cc/TQN4-Q5Q3] (observing that “[t]he exclusion of employer-paid premiums for health insurance from federal income and payroll taxes is the single largest tax expenditure, costing the federal government an estimated $273 billion in fiscal year 2019. Further, because the employer-sponsored health insurance (ESI) exclusion reduces taxable income, it is worth more to taxpayers in higher tax brackets than to those in lower brackets, who are less likely to be covered by ESI in the first place.”) [hereinafter TPC Briefing Book—Tax Exclusion].

¹⁶ Id.

¹⁷ Options for Reducing the Deficit: Reduce Tax Preferences for Employment-Based Health Insurance, Cong. Budget Off. (Dec. 8, 2016), https://www.cbo.gov/budget-options/2016/52246 [https://perma.cc/62KF-LRRB] [hereinafter Tax Preference]. Tax expenditures are exclusions, deductions, preferential rates, and credits in the tax system that have the same budget effect as direct federal spending in that they subsidize or provide financial assistance to specific activities, entities, or groups of people. Id. The favorable tax treatment of employment-based health benefits is the largest single tax expenditure by the federal government. Including effects both on income taxes and on payroll taxes, that exclusion is projected to equal 1.5% of gross domestic product over the 2017–2026 period. Id.

¹⁸ Hearing, supra note 1, at 9.

¹⁹ Health Insurance Coverage of the Total Population, KFF (2019), https://www.kff.org/other/state-indicator/total-population/?dataView=0&currentTimeframe=0&selectedDistributions=employer&sortModel=%7B%22colId%22:%22Employer%22,%22sort%22:%22desc%22%7D [https://perma.cc/6YED-Q3QN]. The Kaiser Family Foundation (KFF) data is based on the Census Bureau’s American Community Survey (ACS) conducted by KFF. Id. The ACS Survey did not release the one-year estimates for 2020 due to significant disruptions to data collection brought on by the coronavirus pandemic. Id. See also Paul Fronstin & Stephen Woodbury, How Many Americans Have Lost Jobs with Employer Health Coverage During the Pandemic?, Commonwealth Fund (Oct. 7, 2020), https://www.commonwealthfund.org/publications/issue-briefs/2020/oct/how-many-lost-jobs-employer-coverage-pandemic [https://perma.cc/UVW2-HGCJ]; Vaugn Himber, Employer Sponsored Health Insurance Statistics: What the Data Tells Us, eHealth (Oct. 20, 2022), https://www.ehealthinsurance.com/resources/small-business/how-many-americans-get-health-insurance-from-their-employer [https://perma.cc/77J9-S7FM].

²⁰ Hearing, supra note 1, at 1.

²¹ From a psychological standpoint, “job lock” refers to a circumstance in which a worker would like to retire or stop working altogether but perceives that they cannot due to needing the income, and/or health insurance. Gwenith G. Fisher et al., Job Lock, Work, and Psychological Well-being in the United States, 2 Work Aging & Ret. 345, 346 (2016); see David Blumenthal & Sara Collins, Where Both the ACA and the AHCA Fall Short, and What the Health Insurance Market Really Needs, Harv. Bus. Rev. (Mar. 21, 2017), https://hbr.org/2017/03/where-both-the-aca-and-ahca-fall-short-and-what-the-health-insurance-market-really-needs [https://perma.cc/KB6P-ZJH2] for the proposition that individual insurance markets have failed to meet the needs of the public for several reasons. Prior to the ACA, on average, individual insurance premiums were increasing more than 10% annually. These individual policies excluded consumers with pre-existing health conditions, charged higher premiums for the aged and young women, and placed limits on annual and lifetime benefits. Many policy applicants were simply turned down. In 2010, an estimated 9 million adults reported that in the prior 3-year period, they had been turned down for a policy, charged a higher premium or had policy exclusions due to pre-existing conditions. As a result, only health people who could afford an individual policy got insured and the rest remained uninsured.

²² Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 782 (2010). For example, in terms of tax equity, ESI favors richer taxpayers who benefit more from favorable tax treatment than poorer workers. See infra note 26 and accompanying example. The Affordable Care Act’s “Cadillac tax” was intended to limit the ESI exclusion for wealthy individuals receiving the most expensive coverage in lieu of otherwise increased taxable compensation starting in 2022. The Cadillac excise tax equaled 40% of the value of employer-provided health benefits exceeding certain thresholds. But the tax, which was originally scheduled to take effect in 2018, was twice delayed and ultimately repealed by legislation before ever taking effect. TPC Briefing Book—Tax Exclusion, supra note 15.

²³ See TPC Briefing Book—Tax Exclusion, supra note 15; Hearing, supra note 1; Cong. Rsch. Serv., supra note 1.

²⁴ Tax Preference, supra note 17, at 3, 20.

²⁵ Tax Treatment, supra note 12, at 3. Yet, the Tax Policy Center is constrained to observe that: “… repealing the exclusion would also reduce ESI coverage by an estimated 16 million people. While approximately half of this group would obtain coverage from other sources, (Medicaid and non-group coverage) the remaining 8 million would become uninsured.”

²⁶ Amanda Nguyen et al., The Impact of Job and Insurance Loss on Prescription Drug Use: A Panel Data Approach to Quantifying the Health Consequences of Unemployment During the Covid-19 Pandemic, 52 Int’l J. of Health Servs. 312, 317-18 (2022).

²⁷ Id. at 317.

²⁸ Alexandre Tanzi, Even on $100,000-Plus, More Americans Are Living Paycheck to Paycheck, Bloomberg News (Jan. 30, 2023), https://www.bloomberg.com/news/articles/2023-01-30/even-on-100k-plus-more-americans-live-paycheck-to-paycheck?leadSource=uverify%20wall [https://perma.cc/PGV5-2FJL].

²⁹ Bd. of Governors of the Fed. Rsrv. Sys., Economic Well-Being of U.S. Households in 2021 35 (2022), https://www.federalreserve.gov/publications/files/2021-report-economic-well-being-us-households-202205.pdf [https://perma.cc/DG44-KWWS].

³⁰ See Continuation of Health Coverage (COBRA), U.S. Dep’t of Lab., https://www.dol.gov/general/topic/health-plans/cobra [https://perma.cc/M2BJ-FLM7] (last visited Feb. 28, 2023).

³¹ SingleCare Team, Insulin Prices: How much does insulin cost?, SingleCare: The Checkup Blog (Feb. 8, 2023), https://www.singlecare.com/blog/insulin-prices/ [https://perma.cc/J785-UQ4W].

³² Id.

³³ Id.

³⁴ See Tax Div., Am. Inst. of Certified Pub. Accts., Tax Policy Concept Statement 4: Guiding Principles for Tax Equity and Fairness (2007) (“The importance of tax equality, equity and fairness has long been recognized. Adam Smith established ‘four maxims with regard to taxes,’ one of which was the need for equality in a tax system.”); Adam Smith, An Inquiry Into the Nature and Causes of the Wealth of Nations 224 (Jonathan Bennett ed., 2017).

³⁵ Cong. Rsch. Serv., supra note 1, at 15.

³⁶ See supra text accompanying note 1.

³⁷ Cong. Rsch. Serv., supra note 1, at 15; Treas. Reg. § 1.162(l)-1 (as amended in 2017). Deduction for health insurance costs of self-employed individuals. Under this section, a 100% deduction is allowed for self-employed taxpayers who buy policies for themselves and their family members; this applies only to a small number of people, less than 3% of all who file returns. One reason the percentage of filers is so small is the many rules attendant to the deduction. In addition to being self-employed, the taxpayer must meet a number of additional conditions. The deduction cannot exceed the net profit and any other earned income from the business under which the plan is established, less deductions taken for certain retirement plans and for one-half the self-employment tax. It is not available for any month in which the taxpayer or the taxpayer’s spouse is eligible to participate in a subsidized employment-based health plan (i.e., one in which the employer pays part of the cost). These restrictions prevent taxpayers with little net income from their business, which is not uncommon for a new business, from deducting much if any of their insurance payments.

³⁸ I.R.C.§ 213.The other is the itemized deduction for unreimbursed medical expenses, which is available only to taxpayers who itemize their deductions and only to the extent the expenses exceed 7.5% of their adjusted gross income. Id. For most taxpayers, the standard deduction is larger than the sum of their potential itemized deductions, and of those who itemize, most do not have extensive unreimbursed medical expenses. In 2005, about 35% of all returns had itemized deductions, and of these, less than 21% (about 7% of all returns) claimed the medical expense deduction. Thus, most people who purchase insurance in the individual market cannot claim either of these deductions. See Cong. Rsch. Serv., supra note 1, at 15.

³⁹ Michael Morrisey, Health Insurance 275 (3d ed. 2020).

⁴⁰ Cong. Rsch. Serv., supra note 1, at 15. The Congressional Research Service provides the following tax calculation using 2008 tax brackets. In 2008, for example, a single tax filer generally will not have a regular tax liability until his or her income exceeds $8,950, the sum of the standard deduction and personal exemption. Until income exceeds $16,975, the taxable income (the difference between $16,975 and $8,950) would be taxed at 10%. Thus, if a single taxpayer with wage income of $13,000 was given employer-paid insurance worth $3,000, the savings from the income tax exclusion would be $300 (i.e., $3,000 x 10%). For single filers in the top tax bracket of 35%, the tax savings from the exclusion of $3,000 of coverage would be $1,050, appreciably more than the savings for low-income workers. Parenthetically, the analysis would be the same under the Tax Cuts Jobs Act which provides the current tax brackets.

⁴¹ Cong. Rsch. Serv., supra note 1, at 10; R. Douglas Scott II et al., Applying Economic Principles to Health Care, 7 Emerging Infectious Diseases 282, 283 (2001).

⁴² Cong. Rsch. Serv., supra note 1, at 10.

⁴³ Miriam Weismann & Irving Jorge, The Regulatory Vision of Universal Healthcare in the United States: Strategic, Economic, and Moral Decision-Making, 213 U. Pa. J. Bus. L. 647, 666 (2019).

⁴⁴ For a more detailed account of the healthcare efficiency principle and its impact on healthcare spending, see id. at 660.

⁴⁵ William Hsiao & Peter S. Heller, What Should Macroeconomists Know About Healthcare? (Int’l Monetary Fund, Working Paper No. WP/07/013, 1, 6-8 (2007).

⁴⁶ Tax Pol’y Ctr., Taxes and Health Care: How Much Does the Federal Government Spend on Health Care?, in Tax Policy Center Briefing Book (2020), https://www.taxpolicycenter.org/briefing-book/how-much-does-federal-government-spend-health-care [https://perma.cc/E38Z-3R77].

⁴⁷ Id.

⁴⁸ For an in-depth discussion of the pros and cons of the business case supporting ESI, see, O’Brien, supra note 1.

⁴⁹ Id.

⁵⁰ Benefits of Providing Coverage, Small Bus. Majority, https://healthcoverageguide.org/reference-guide/benefits-providers-and-costs/benefits-of-providing-coverage/ [https://perma.cc/R7CW-NFAX] (last visited Oct. 5, 2023).

⁵¹ Andrew P. Wilper et al., Health Insurance and Mortality in US Adults, 99 Am. J. Pub. Health 2289, 2292 (2009).

⁵² Id.

⁵³ But see Weismann & Jorge, supra note 43, at 673 for the proposition that: “Congress found that the ‘cost of providing uncompensated care to the uninsured was $43 [billion] in 2008 [and] [t]o pay for this cost, health care providers pass[ed] on the cost to private insurers, which [was] pass[ed] on the cost to families.’”

⁵⁴ “CRS works exclusively for the United States Congress, providing policy and legal analysis to committees and Members of both the House and Senate, regardless of party affiliation.” About the Congressional Research Service, Congress.gov, https://constitution.congress.gov/about/congressional-research-service/ [https://perma.cc/AYR9-DMTZ] (last visited Nov. 1, 2023).

⁵⁵ Cong. Rsch. Serv., supra note 1, at 8. The report states:

At the very least, it shows that tax policies currently at issue were largely shaped during a particular period in history, responding to what were perceived to be the needs at that time. An implication might be that current policies should be reviewed in light of today’s needs, and that further changes might now be appropriate.

Id.

⁵⁶ See Fronstin & Woodbury, supra note 19, at 1.

⁵⁷ American Rescue Plan Act of 2021, Pub. L. No. 117-2, 135 Stat. 4.

⁵⁸ For clarification purposes, health insurance acquired through a state health insurance exchange or through the federal health insurance market, HealthCare.gov, is described as an on-exchange plan. Off-exchange health insurance is a plan that is purchased directly from an insurance provider, or through a broker. Though considered private plans, off-exchange plans must comply with certain ACA compliance requirements, which ensure minimum coverage and essential health benefits (EHB). See Ryan Kennelly, What’s the Difference Between On-Exchange and Off-Exchange?, iHealthAgents, (Sept. 2023), https://help.ihealthagents.com/hc/en-us/articles/115002945414-What-s-the-Difference-Between-On-Exchange-and-Off-Exchange- [https://perma.cc/B378-UXUS].

⁵⁹ Rakesh Kochhar, Unemployment Rose Higher in Three Months of COVID-19 than it Did in Two Years of the Great Recession, Pew Rsch. Ctr. (June 11, 2020), https://www.pewresearch.org/fact-tank/2020/06/11/unemployment-rose-higher-in-three-months-of-covid-19-than-it-did-in-two-years-of-the-great-recession/ [https://perma.cc/ENY5-6U2W].

⁶⁰ Id.

⁶¹ Id.

⁶² Fronstin & Woodbury, supra note 19, at 1.

⁶³ Id.

⁶⁴ Id.

⁶⁵ Id. at 2.

⁶⁶ See The Employment Situation — August 2020, USDL-20-1650, tbls. A-11, A-12, Bureau of Lab. Stats., Dep’t of Lab. (Sept. 2020).

⁶⁷ M. Kate Bundorf, Sumedha Gupta & Christine Kim, Trends in US Health Insurance Coverage During the COVID-19 Pandemic, 2 JAMA Health F. 1, 1 (2021).

⁶⁸ Id. at 3.

⁶⁹ Id. at 6.

⁷⁰ Id.

⁷¹ Kate Morgan, Why Workers Won’t Just Stop Quitting, BBC (Aug. 18, 2022), https://www.bbc.com/worklife/article/20220817-why-workers-just-wont-stop-quitting [https://perma.cc/2BZ3-W38G].

⁷² Joseph Fuller & William Kerr, The Great Resignation Didn’t Start with the Pandemic, Harv. Bus. Rev. (Mar. 23, 2022), https://hbr.org/2022/03/the-great-resignation-didnt-start-with-the-pandemic [https://perma.cc/YBW5-HD82].

⁷³ See Job Openings and Labor Turnover Survey, in Handbook of Methods, U.S. Bureau of Lab. Stats. (2022), https://www.bls.gov/opub/hom/jlt/home.htm [https://perma.cc/92G2-JE9U]. (The U.S. Bureau of Labor Openings and Labor Turnover Survey publishes rates and levels of job openings, hires, quits, layoffs and discharges, other separations, and total separations (also known as turnover) for the nation as a whole and by state, by ownership (private verses public), region, and supersector and select sectors based on the North American Industry Classification System (NAICS)). See also Job Openings and Labor Turnover Survey, U.S. Bureau of Lab. Stats. (2023), https://www.bls.gov/jlt/ [https://perma.cc/NUU7-BHG2].

⁷⁴ Rick Penn & Eric Nezamis, Job Openings and Quits Reach Record Highs in 2021, Layoffs and Discharges Fall to Record Lows, U.S. Bureau of Lab. Stats.: Monthly Lab. Rev. (June 2022), https://www.bls.gov/opub/mlr/2022/article/job-openings-and-quits-reach-record-highs-in-2021.htm [https://perma.cc/97WU-P7P8].

⁷⁵ Id. (“The number of annual quits rose considerably, from 35.9 million in 2020 to 47.8 million in 2021, for an increase of 33 percent.”).

⁷⁶ Id. (“Quits include employees who left their job voluntarily, excluding retirements or transfers to other locations.”).

⁷⁷ Id.

⁷⁸ Pew Research Center is a nonpartisan “fact tank” that informs the public about the issues, attitudes and trends shaping the world. It conducts public opinion polling, demographic research, content analysis and other data-driven social science research. It does not publish policy positions. See About Pew Research Center, Pew Rsch. Ctr., https://www.pewresearch.org/about/ [https://perma.cc/4VUT-M6QW] (last visited Oct. 31, 2023).

⁷⁹ Kim Parker & Juliana Menasce Horowitz, Majority of Workers Who Quit a Job in 2021 Cite Low Pay, No Opportunities for Advancement, Feeling Disrespected, Pew Rsch. Ctr. (Mar. 9, 2022), https://www.pewresearch.org/fact-tank/2022/03/09/majority-of-workers-who-quit-a-job-in-2021-cite-low-pay-no-opportunities-for-advancement-feeling-disrespected/ [https://perma.cc/ERU6-24Y9].

⁸⁰ But see Maury Gittleman, The “Great Resignation” in Perspective, U.S. Bureau of Lab. Stats.: Monthly Lab. Rev. (July 2022), https://www.bls.gov/opub/mlr/2022/article/the-great-resignation-in-perspective.htm [https://perma.cc/VE4H-T8XC] (Gittleman is less certain regarding the reasons for the Great Resignation. The historical data examined in the article demonstrates that recent quit rates, while high for the 21st century, are not the highest historically. He concludes that the pace of resignations has more quickly resulted from labor market tightening alone. Gittleman posits that there is not enough current research to conclude the actual reasons for the quit rate evidenced by the Great Resignation. He also notes several questions regarding what is happening to workers who are resigning for the first time: are they leaving the labor force or moving on to better jobs, have yet to be fully explored).

⁸¹ Parker & Horowitz, supra note 79.

⁸² Morgan, supra note 71.

⁸³ Id.

⁸⁴ Id.

⁸⁵ Id.

⁸⁶ Fuller & Kerr, supra note 72.

⁸⁷ Id.

⁸⁸ Id.

⁸⁹ Id.

⁹⁰ Id.

⁹¹ Id.

⁹² The Employment Situation — August 2023, U.S. Bureau of Lab. Stats., Dep’t of Lab. (Sept. 1, 2023, 8:30 AM), https://www.bls.gov/news.release/pdf/empsit.pdf.

⁹³ See Howard Schneider & Sarah Slobin, The Post-Pandemic Workforce, Reuters (June 12, 2023), https://www.reuters.com/graphics/USA-ECONOMY/OCCUPATIONS/znpnbrlwjpl/ [https://perma.cc/T7X6-9A2B].

⁹⁴ John Geyman, The Future of Work in America: Demise of Employer-Sponsored Insurance and What Should Replace It, 52 Int’l J. of Health Servs. 168, 168 (2022).

⁹⁵ See Allison Hoffman, How a Pandemic Plus Recession Foretell the Post-Job Based Horizon of Health Insurance, 71 DePaul L. Rev. 331, 359 (2022) (“Although such a dramatic concurrence of events will hopefully not recur anytime soon…”).

⁹⁶ Geyman, supra note 94, at 168; see also Anna Sagan et al., Strengthening Health System Resilience in the

COVID-19 Era, 28 Eurohealth 4 (2022) (discussing factors that improved European healthcare resilience during COVID-19).

⁹⁷ T.R. Reid, The Healing of America: A Global Quest for Better, Cheaper, and Fairer Health Care 50-51, 74-75 (Penguin Books ed. 2010); see also Weismann & Jorge, supra note 42, at 703.

⁹⁸ Munira Z. Gunja et al., U.S. Health Care from a Global Perspective, 2022: Accelerating Spending, Worsening Outcomes, Commonwealth Fund (Jan. 31, 2023), https://www.commonwealthfund.org/publications/issue-briefs/2023/jan/us-health-care-global-perspective-2022 [https://perma.cc/86YN-A4CG].

⁹⁹ Reid, supra note 97, at 51, 75. For a more in-depth comparison of global healthcare systems, see Weismann & Jorge, supra note 43, at 683-87.

¹⁰⁰ See generally U.S. Const; Weismann & Jorge, supra note 43, at 647.

¹⁰¹ Franklin D. Roosevelt, President, U.S., State of the Union Address (Jan. 11, 1944).

¹⁰² Org. for Econ. Coop. & Dev., Universal Health Coverage and Health Outcomes: Final Report (2016),

https://www.oecd.org/els/health-systems/Universal-Health-Coverage-and-Health-Outcomes-

OECD-G7-Health-Ministerial-2016.pdf [https://perma.cc/4MW3-LK4U].

¹⁰³ Timothy S. Jost, Disentitlement? The Threats Facing Our Public Health Care Programs and A Rights Based Response 24 (2003).

¹⁰⁴ See Robert Field, Why Is Health Care Regulation So Complex?, 33 P & T 607, 607 (Oct. 2008). (“[T]he present regulatory structure is neither uniform nor consistent. A broad range of regulatory bodies and programs apply in different ways to various aspects of the industry. Health care regulations are developed and enforced by all levels of government—federal, state, and local—and also by a large assortment of private organizations. At times, they operate without coordination.”).

¹⁰⁵ Fact Sheet: The American Rescue Plan Will Deliver Immediate Economic Relief to Families, U.S. Dep’t. of the Treasury (Mar. 18, 2021), https://home.treasury.gov/news/featured-stories/fact-sheet-the-american-rescue-plan-will-deliver-immediate-economic-relief-to-families [https://perma.cc/755V-SL68].

¹⁰⁶ Id.

¹⁰⁷ Id.

¹⁰⁸ Id.

¹⁰⁹ American Rescue Plan, White House (last visited Oct. 3, 2023), https://www.whitehouse.gov/american-rescue-plan [https://perma.cc/9QCT-E7YP].

¹¹⁰ Voluntary termination due to general concerns about workplace safety, a health condition of the employee or a family member, or other similar issues generally are not considered involuntary termination. This is because the actual reason for the termination is unrelated to the action or inaction of the employer. See What Circumstances Are Considered “Involuntary Termination” for Purposes of Eligibility for COBRA Premium Assistance Under ARPA?, NFP (May 25, 2021), https://www.nfp.com/insights/cc20210525faq/#:~:text=Involuntary%20termination%20includes%20when%20an,severance%20agreement%20or%20imminent%20termination [https://perma.cc/2QTM-V7T4].

¹¹¹ Kerry Notestine, Steve Friedman & Analiza Rodriguez, IRS Issues Guidance on the American Rescue Plan Act COBRA Subsidy, Littler (May 26, 2021), https://www.littler.com/publication-press/publication/irs-issues-guidance-american-rescue-plan-act-cobra-subsidy [https://perma.cc/G6Q8-82RE].

¹¹² See Matthew Ray et al., How the American Rescue Plan Act Affects Subsidies for Marketplace Shoppers and People Who Are Uninsured, KFF (Mar. 25, 2021), https://www.kff.org/health-reform/issue-brief/how-the-american-rescue-plan-act-affects-subsidies-for-marketplace-shoppers-and-people-who-are-uninsured/ [https://perma.cc/8DXN-HR67].

¹¹³ Id. (“The ACA gives states the option to implement a Basic Health Program (BHP) that covers low-income residents through state-contracting plans outside the health insurance marketplace, rather than qualified health plans (QHPs).”).

¹¹⁴ Id.

¹¹⁵ Id.

¹¹⁶ Id. (“The study further estimated that the average savings under ARPA subsidies were about $70 per month for individual market purchasers, ranging from an average savings of $213 (39% of premiums after subsidies) per month for people with incomes between 400% and 600% of FPL to an average savings of $33 per month (100% of post-subsidy premiums) for people with incomes under 150% of FPL (who received zero-dollar premiums for silver plans with significantly reduced out-of-pocket costs).”).

¹¹⁷ Id.

¹¹⁸ See id.

¹¹⁹ Inflation Reduction Act of 2022, Pub. L. No. 117–169, 136 Stat. 1818.

¹²⁰ Lovisa Gustafsson & Sara Collins, The Inflation Reduction Act Is a Milestone Achievement in Lowering American’s Healthcare Costs, Commonwealth Fund (Aug. 15, 2022), https://www.commonwealthfund.org/blog/2022/inflation-reduction-act-milestone-achievement-lowering-americans-health-care-costs [https://perma.cc/Q58Q-EG53].

¹²¹ Joseph Choi, Subsidies Have Boosted Affordable Care Act’s Enrollment. It’s Setting Up a Potential Fight, Hill (Feb. 18, 2023, 6:00 AM), https://thehill.com/policy/healthcare/3863423-subsidies-have-boosted-affordable-care-acts-enrollment-its-setting-up-a-potential-fight/ [https://perma.cc/6X94-WE59]; Tami Luhby, Special Affordable Care Act Subsidies Available for Unemployed Americans Starting July 1, CNN (June 29, 2021, 1:00 PM), https://www.cnn.com/2021/06/29/politics/biden-obamacare-unemployed-assistance/index.html [https://perma.cc/DFF8-8XEV].

¹²² Abby Patkin, Healey: 300,000 People Will Likely Get Dropped from MassHealth This Year, Boston.com (Mar. 2, 2023), https://www.boston.com/news/health/2023/03/02/masshealth-redetermination-maura-healey-300000-estimate/ [https://perma.cc/9V49-A6KC].

¹²³ Patient Protection and Affordable Care Act, Pub. L. No. 111–148, 124 Stat. 119 (2010).

¹²⁴ Marketplace, HealthCare.gov (last visited Oct. 6, 2023), https://www.healthcare.gov/glossary/marketplace/ [https://perma.cc/K8GV-PRNT]; About the Affordable Care Act, U.S. Dep’t of Health & Hum. Servs. (last visited Oct. 6, 2023), https://www.hhs.gov/healthcare/about-the-aca/index.html [https://perma.cc/G763-ACDL]; The Health Plan Categories: Bronze, Silver, Gold & Platinum, HealthCare.gov (last visited Nov. 1, 2023), https://www.healthcare.gov/choose-a-plan/plans-categories/ [https://perma.cc/KQ8N-LCT3].

¹²⁵ U.S. Dep’t of Health & Hum. Servs., supra note 123.

¹²⁶ Federal Poverty Level (FPL), HealthCare.gov, https://www.healthcare.gov/glossary/federal-poverty-level-fpl/ [https://perma.cc/676U-2HFG] (last visited Oct. 6, 2023).

¹²⁷ Affordable Care Act (ACA), HealthCare.gov, https://www.healthcare.gov/glossary/affordable-care-act/ [https://perma.cc/W9ED-S7C3] (last visited Oct. 6, 2023).

¹²⁸ See Health Plan Categories, HealthCare.gov, https://www.healthcare.gov/glossary/health-plan-categories/ [https://perma.cc/EGG4-FZ2B] (last visited Oct. 4, 2023).

¹²⁹ Id.

¹³⁰ Health Benefits and Coverage, HealthCare.gov, https://www.healthcare.gov/coverage/what-marketplace-plans-cover/ [https://perma.cc/782T-8YCL] (last visited Oct. 4, 2023).

¹³¹ Weismann & Jorge, supra note 43, at 670.

¹³² Id.

¹³³ See 26 U.S.C. § 5000A(a) (2010) (“Requirement to Maintain Minimum Essential Coverage. An applicable individual shall for each month beginning after 2013 ensure that the individual, and any dependent of the individual who is an applicable individual, is covered under minimum essential coverage for such month.”).

¹³⁴ Morrisey, supra note 39, at 29.

¹³⁵ Id. at 30. The reason for the Individual Mandate was two-fold. Id. First, to ensure that people had health insurance coverage, and second, to eliminate adverse selection in insurance risk pools. Id.

¹³⁶ Id.

¹³⁷ Jeremy Ashe, Households Earning $75,000 or Less Paid Majority of Individual Mandate Penalties, Tax Found. (July 21, 2021), https://taxfoundation.org/affordable-care-act-individual-mandate-penalties/ [https://perma.cc/G2PC-QZ43].

¹³⁸ Morrisey, supra note 39, at 30.

¹³⁹ Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 542-69 (2012). The Supreme Court granted certiorari to three cases: National Federation of Independent Business v. Sebelius (which consolidated a part of Florida v. Dept. of Health and Human Services) on the issues of the constitutionality of the individual mandate and the severability of any unconstitutional provisions, Dept. of Health and Human Services v. Florida on the issue of whether review was barred by the Anti-Injunction Act, and Florida v. Dept. of Health and Human Services on the matter of the constitutionality of the Medicaid expansion. Id.

¹⁴⁰ Tax Cuts and Jobs Act, Pub. L. No. 115–97, § 11001, 131 Stat. 2054.

¹⁴¹ Christine Eibner & Sarah Nowak, The Effect of Eliminating the Individual Mandate Penalty, Commonwealth Fund (July 11, 2018), https://www.commonwealthfund.org/publications/fund-reports/2018/jul/eliminating-individual-mandate-penalty-behavioral-factors [https://perma.cc/U6YP-595G].

¹⁴² Morrisey, supra note 39, at 41.

¹⁴³ Id.

¹⁴⁴ What Is an Employer Mandate?, HealthInsurance.Org, https://www.healthinsurance.org/glossary/employer-mandate/ [https://perma.cc/3ZZU-9SX6] (last visited Oct. 6, 2023).

¹⁴⁵ Id.

¹⁴⁶ Id.

¹⁴⁷ Id. As of 2022, the employer mandate penalties are as follows:

For a large employer that doesn’t offer coverage at all: $2,750 multiplied by 30 less than the total number of full-time employees. For a large employer that offers coverage that isn’t considered affordable and/or doesn’t provide minimum value: $4,120 multiplied by the number of full-time employees who receive a premium tax credit in the marketplace. However, this penalty will not exceed the amount of the other penalty, so that will be used instead if it is less.

Id.

¹⁴⁸ Kip Piper & Randy Vogenberg, Implications of the Employer Mandate Delay on the Healthcare Marketplace, 6 Am Health & Drug Benefits 303, 305 (2013); Timothy Jost, ACA Round-Up: Employer Responsibility Penalties, Enrollment Policies, Health Affs. Forefront (Nov. 7, 2017), https://www.healthaffairs.org/content/forefront/aca-round-up-employer-responsibility-penalties-enrollment-policies.

¹⁴⁹ David Blumenthal & David Squires, The Employer Mandate: Essential or Dispensable, Commonwealth Fund, (June 4, 2014), https://www.commonwealthfund.org/blog/2014/employer-mandate-essential-or-dispensable [https://perma.cc/4ZNF-BWJ9].

¹⁵⁰ See id.

¹⁵¹ Morrisey, supra note 39, at 22.

¹⁵² Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 606 (2012).

¹⁵³ Id. at 522; see also 42 U.S.C. § 18091(2)(D) (2010) (describing how the employer mandate achieves near-universal coverage by strengthening the private employer-based health insurance system).

¹⁵⁴ Sara Rosenbaum & Timothy Westmoreland, The Supreme Court’s Surprising Decision on Medicaid Expansion: How Will the Federal Government and the States Proceed?, 31 Health Affs. 1663, 1665 (2012) (Twenty-six states joined the suit opposing the mandatory expansion of Medicaid. The reasons were for the most part tied to the economic uncertainty that the new burden of coverage would place on the states. The immense size of the program was problematic as the states would now be required to insure one in four Americans. While the costs of covering the newly eligible was supposed to be covered by the federal government, paying 100% of medical assistance costs associated with the expansion group in most states for the first three years (2014–16) and declining annually to 95% in 2017–19 and to 90% in 2020, states would still incur costs. By 2020 the states were “expected to contribute 10[%] toward the cost of medical assistance for the newly” enrolled group. The federal contribution was also to remain at its then current level in the case of medical assistance for the existing vulnerable groups covered under Medicaid which ranged from 50% to 83% “of total medical assistance costs. Most states were barely able to cover those costs).

¹⁵⁵ Status of State Medicaid Expansion Decisions: Interactive Map, KFF (Oct. 4, 2023), https://www.kff.org/medicaid/issue-brief/status-of-state-medicaid-expansion-decisions-interactive-map/ [https://perma.cc/75UP-MJG8].

¹⁵⁶ Morrisey, supra note 39, at 46.

¹⁵⁷ Weismann & Jorge, supra note 43, at 678.

¹⁵⁸ Ashe, supra note 137.

¹⁵⁹ See Weismann & Jorge, supra note 43, at 678; Morrisey, supra note 39, at 46.

¹⁶⁰ See David Bernstein, Let’s Recall Why the Affordable Care Act Is So Messed Up, Wash. Post (June 25, 2015), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2015/06/25/lets-recall-why-the-affordable-care-act-is-so-messed-up/?noredirect=on [https://perma.cc/K5SR-9VS7].

¹⁶¹ Rachel Garfield et al., KFF, The Coverage Gap: Uninsured Poor Adults in States That Do Not Expand Medicaid 2 (2020), https://files.kff.org/attachment/Issue-Brief-The-Coverage-Gap-Uninsured-Poor-Adults-in-States-that-Do-Not-Expand-Medicaid [https://perma.cc/D5LU-PJYX].

¹⁶² See Kelsey Waddill, How COVID-19 Impacted Employer-Sponsored Health Plan Coverage, HealthPayerIntelligence (Sept. 8, 2021), https://healthpayerintelligence.com/news/how-covid-19-impacted-employer-sponsored-health-plan-coverage [https://perma.cc/B7G8-3V4S].

¹⁶³ Id.

¹⁶⁴ Brent Messenger & Noah Lang, Healthcare Access Will Fuel the Great Resignation – and That Is a Good Thing, Fortune (Nov. 27, 2021), https://fortune.com/2021/12/27/healthcare-access-will-fuel-the-great-resignation-health-insurance-aca-affordable-care-freelancers-careers-personal-finance/ [https://perma.cc/Z3CU-HDSV]. A freelancer is an independent contractor who earns wages on a per-job or per-task basis, typically for short-term work. Lucas Downey, What Is a Freelancer: Examples, Taxes, Benefits, and Drawbacks, Investopedia (Nov. 2, 2022), https://www.investopedia.com/terms/f/freelancer.asp [https://perma.cc/PPX6-HQK4].

¹⁶⁵ Messenger & Lang, supra note 164.

¹⁶⁶ Id.

¹⁶⁷ Id.

¹⁶⁸ Daniel McDermott et al., How Has the Pandemic Affected Health Coverage in the U.S.?, KFF (Dec. 9, 2020), https://www.kff.org/policy-watch/how-has-the-pandemic-affected-health-coverage-in-the-u-s/ [https://perma.cc/YTE2-6LE6].

¹⁶⁹ Jennifer Tolbert et al., Key Facts About the Uninsured Population, KFF (Dec. 19, 2022), https://www.kff.org/uninsured/issue-brief/key-facts-about-the-uninsured-population/ [https://perma.cc/QP2U-6X5X].

¹⁷⁰ Id.

¹⁷¹ Bradley Corallo & Sophia Moreno, Analysis of National Trends in Medicaid and CHIP Enrollment During the COVID-19 Pandemic, KFF (Apr. 4, 2023), https://www.kff.org/coronavirus-covid-19/issue-brief/analysis-of-recent-national-trends-in-medicaid-and-chip-enrollment/ [https://perma.cc/EBM7-5WPV].

¹⁷² Jennifer Tolbert & Meghana Ammula, 10 Things to Know About the Unwinding of the Medicaid Continuous Enrollment Provision, KFF (Jun. 9, 2023), https://www.kff.org/medicaid/issue-brief/10-things-to-know-about-the-unwinding-of-the-medicaid-continuous-enrollment-provision/ [https://perma.cc/EBM7-5WPV].

¹⁷³ Id.

¹⁷⁴ Id.

¹⁷⁵ Joseph Benitez & Lisa Dubay, COVID-19-Related Medicaid Enrollment in Expansion and Non-Expansion States, 57 Health Servs. Rsch. 1321, 1322 (2022).

¹⁷⁶ Alison Mitchell, Cong. Rsch. Serv., R43564, The ACA Medicaid Expansion (2014).

¹⁷⁷ Benitez & Dubay, supra note 175, at 1322.

¹⁷⁸ Weismann & Jorge, supra note 43, at 678.

¹⁷⁹ Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 585 (2012).

¹⁸⁰ Garfield et al., supra note 161, at 1.

¹⁸¹ Id.

¹⁸² Bundorf et al., supra note 67, at 5.

¹⁸³ Id.

¹⁸⁴ See, e.g., Sumit Agarwal & Benjamin Sommers, Insurance Coverage After Job Loss—The Importance of the ACA During the Covid-Associated Recession, 383 New Eng. J. Med. 1603, 1604 (2020).

¹⁸⁵ Peggah Khorrami & Benjamin Sommers, Changes in US Medicaid Enrollment During the COVID-19 Pandemic, 4 JAMA Network Open 1, 1, 3 (2021).

¹⁸⁶ Judith Solomon et al., Ctr. on Budget & Pol’y Priorities, Medicaid Protections in Family First Act Critical to Protecting Healthcare Coverage 1 (2020).

¹⁸⁷ Id. at 1.

¹⁸⁸ Id. at 2 (“[L]ow-income people often experience frequent fluctuations in income that can lead them to become temporarily ineligible for Medicaid but then regain eligibility within a few months. Continuous coverage reduces the churn from these frequent changes in eligibility”).

¹⁸⁹ See Bundorf et al., supra note 67, at 4-5.

¹⁹⁰ Rosemarie Day, Post-Pandemic Solutions: A Public Option for Universal Healthcare, Health Care Blog (May 21, 2020), https://thehealthcareblog.com/blog/2020/05/21/post-pandemic-solutions-a-public-option-for-universal-healthcare/ [https://perma.cc/ZR2R-24XH].

¹⁹¹ Christine Monahan & Madeline O’Brien, States Move Forward with Public Option Programs, but Differ in How They Select Insurance Carriers, Commonwealth Fund (Jan. 24, 2023), https://www.commonwealthfund.org/blog/2023/states-move-forward-public-option-programs-insurance-carriers [https://perma.cc/F5GE-W25S].

¹⁹² Cong. Budget Off., 57020, A Public Option for Health Insurance in the Non-Group Marketplaces: Key Design Considerations and Implications 1 (2021), https://www.cbo.gov/system/files/2021-04/57020-Public-Option.pdf [https://perma.cc/GGA9-CJSU].

¹⁹³ Id.

¹⁹⁴ Id. at 2.

¹⁹⁵ See id. at 5.

¹⁹⁶ Id. at 3.

¹⁹⁷ Id. at 31.

¹⁹⁸ Id.

¹⁹⁹ For examples of Medicare buy-in legislation, see the Expanding Health Care Options for Early Retirees Act, S. 2236, 117th Cong. (2021), the Medicare Buy-In and Health Care Stabilization Act of 2019, H.R. 1346, 116th Cong. (2019), and the Medicare at 50 Act, S. 470, 116th Cong. (2019). For an example of Medicaid buy-in legislation, see the State Public Option Act, S. 489, 116th Cong. (2019).

²⁰⁰ Medicaid Buy-In Opens Doors to Employment for People with Disabilities, Admin. for Cmty. Living: ACL Blog (May 6, 2020), https://acl.gov/news-and-events/acl-blog/medicaid-buy-opens-doors-employment-people-disabilities [https://perma.cc/C2G9-QY5H].

²⁰¹ See Compare Medicare for All and Public Option Plans, KFF (May 15, 2019), https://www.kff.org/interactive/compare-medicare-for-all-public-plan-proposals/ [https://perma.cc/X88Q-ZTDY].

²⁰² Id. For more detail showing the side-by-side comparison charts see Side-by-Side Comparison of Medicare-for-all and Public Plan Proposals Introduced in the 116th Congress, KFF (May 15, 2019), https://files.kff.org/attachment/Table-Side-by-Side-Comparison-Medicare-for-all-Public-Plan-Proposals-116th-Congress [https://perma.cc/4NHV-YQT8].

²⁰³ See James C. Capretta, Washington State’s Quasi-Public Option, Milbank Q. (Mar. 2020), https://www.milbank.org/quarterly/articles/washington-states-quasi-public-option/ [https://perma.cc/KQZ6-TARN ].

²⁰⁴ Christine Monahan et al., State Public Option-Style Laws: What Policy Makers Need to Know, Commonwealth Fund (July 23, 2021), https://www.commonwealthfund.org/blog/2021/state-public-option-style-laws-what-policymakers-need-know [https://perma.cc/69YU-D56W].

²⁰⁵ Monahan & O’Brien, supra note 191.

²⁰⁶ Id.

²⁰⁷ Id.

²⁰⁸ Id.

²⁰⁹ Id.

²¹⁰ Id.

²¹¹ Id.

²¹² Id.

²¹³ See Jane Norman & John Reichard, Senate Democrats Drop the Public Option to Woo Lieberman, and Liberals Howl, Commonwealth Fund (Dec. 15, 2009), https://www.commonwealthfund.org/publications/newsletter-article/senate-democrats-drop-public-option-woo-lieberman-and-liberals-howl [https://perma.cc/3HD4-THN5 ]; see also John Gregory, Hospital, Insurer, Pharma Lobbyists Push Back Against Public Option, HealthExec (Oct. 24, 2016), https://healthexec.com/topics/healthcare-policy/hospital-insurer-pharma-lobbyists-push-back-against-public-option [https://perma.cc/TL3S-8Z9A].

²¹⁴ The question of the prospects of success for the public option is best left to explore after the expected disenrollment from Medicaid occurs. It is possible that many more states will follow suit and construct some form of Medicaid buy-in or other public option to avoid a dramatic increase in the state uninsured population. If not, an even more compelling case for a public option will arise in the ensuing uninsured crisis.

²¹⁵ Tax Preference, supra note 17.

²¹⁶ Eric J. Toder et al., Distributional Effects of Tax Expenditures, Tax Notes (July 1, 2009), https://www.taxnotes.com/research/federal/other-documents/washington-roundup/tax-policy-center-reviews-distributional-effects-of-large-tax-expenditures/wtkl [https://perma.cc/A8ME-REXX].

²¹⁷ Id.

²¹⁸ Id.