A Knife Tricks Analysis: The Public Option Would Not Be Available To Expats
Q. Would the “public option” of government-offered health insurance be available to expats?
A. Although the issue is not squarely addressed in the House health care bill, the answer appears to be No.
Here’s the analysis:
The public option provisions of the House of Representative's health care bill would, if enacted, do three things. (The Senate bill does not feature a public option.)
First, the House bill would create an exchange – a marketplace – from which people could purchase health insurance. Second, the bill would allow the government to create and sell its own policy, the “public option,” on the exchange. Third, the government would offer lower-income people “affordability credits” with which to purchase insurance from the exchange.
None of these sections refers to expats. When a statute is silent on an issue, the courts use various methods to divine the legislature’s intent. One common method is to review the Act as a whole, answering the question based on a close reading of the law’s structure, stated goals and language. That’s the method of statutory construction this post will use.
The public option is contained principally within Sections 321 to 331 of H.R. 3962, the Affordable Health Care for America Act. Click on this sentence to view the text of the 1,990-page bill.
The first sentence about the public option isn’t encouraging. In Section 321(a), the Secretary of Health and Human Services is instructed to place on the exchange a public health insurance plan which “ensures choice, competition, and stability of affordable, high quality coverage throughout the United States.” Although this phrase may be a rhetorical flourish, a court could interpret it as evidence that Congress intended the public option to stop at the water’s edge.
The next section, No. 322, empowers the Secretary to establish “geographically adjusted premium rates” for the public option. In establishing these rates, the Secretary is allowed to take into consideration the price differences which arise because some areas have lower costs of living than others. But the section does not specify if the relevant geography is limited to the national or could include the global. So the language regarding rate-setting isn’t helpful for our purposes.
Section 323 is a silent killer. It states that doctors, hospitals and other health care providers which participate in Medicare – the U.S. public health system for retirees -- are automatically deemed participants in the public option unless they opt out.
On the surface, Section 323 doesn’t say much; providers in the current national health program are assumed to be part of the new program. Subdermally, the provision is freighted with implication, because one of the main characteristics of Medicare is that it is only available within the United States. Expats have to pay Medicare tax, but Medicare refuses to fund treatments which occur abroad. Consequently, this provision can be read to imply that treatments under the public option could only be obtained within the country.
Remember those “affordability credits”? In order to qualify for the credits, a person must be “lawfully present in a State in the United States,” according to Section 342. The language is intended to distinguish between legal and illegal immigrants, but it has the knock-on effect of limiting the credits to people who are residents of a state or territory. Expats are excluded.
Taking all of the textual evidence into consideration, it appears that the public option would operate like Medicare. Expats would be forced to fund the system through their U.S. taxes. An expat could choose the public option or a private insurance plan offered on the exchange. But, if an expat needed treatment under the public option, he or she would need to fly back to the U.S.A. -- whether or not the U.S.A. was still “home.”
Labels: Health Care Reform and Expats