Between 2010 and 2016, the percentage of uninsured higher education students dropped by more than half. All the Affordable Care Act's key access provisions contributed, but the most important factor appears to be the Medicaid expansion. This article is the first to highlight this phenomenon and ground it in data. It explores the reasons for this dramatic expansion of coverage, links it to theoretical frameworks, and considers its implications for the future of health reform. Drawing on Medicaid universality scholarship, I discuss potential consequences of including the educationally privileged in this historically stigmatized program. Extending this scholarship, I argue that the student experience and its reverberating effects portend support for emerging proposals to make Medicare a more common option. Woven into both analyses is the role of the Trump-era retrenchment, notably the administration's promotion of Medicaid “work or community engagement” requirements and of cheap, skimpy plans. Higher education students were an afterthought in the ACA's debates, and yet the law has profoundly impacted their coverage options. Students are now much more likely to have health insurance, and for it to be comprehensive. Looking to the next decade, the student experience harbingers support for both Medicaid universality and Medicare commonality.
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References
1.
Patient Protection and affordable Care Act, Public Law No. 111-148, 124 Stat. 119 (2010), amended by Health Care and Education Reconciliation Act of 2010, Public Law No. 111-152, 124 Stat. 1029 (2010) (codified as amended in scattered sections of U.S. Code). [hereinafter ACA].
2.
Lookout Mountain Group, An Eight-Year Update for the Lookout Mountain Group's Review of College Health Programs (December21, 2017) [hereinafter “LMG 2017”]. The study's findings are summarized in a press release dated March 29, 2018 [hereinafter “LMG 2018 Press Release”]. They are detailed in a slide deck of data, including state-by-state findings, dated February 2018 [hereinafter “LMG 2018 Slide Deck”]. These documents are available at <https://docs.hbc-slba.com/docs/request_repository.php?id=151> (last visited November 18, 2019; registration required). See also J.Bauer-Wolf, “After the ACA, Fewer Uninsured Students,”Inside Higher EdMarch30, 2018, available at <https://www.insidehighered.com/news/2018/03/30/obamacare-has-led-fewer-uninsured-students-study-finds> (last visited November 18, 2019) (citing the “LMG 2017” study, infra note 4).
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See National Center for Education Statistics, U.S. Department of Education, “Total Fall Enrollment in Degree-Granting Postsecondary Institutions, selected years 1947 through 2026” (2017), available at <https://nces.ed.gov/programs/digest/d17/tables/dt17_303.25.asp> (last visited November 18, 2019).
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The LMG describes itself as “a nonpartisan study group… composed of a diverse group of college health professionals, students, student affairs leaders, and experts in health care reform, employee benefits, risk management, and insurance regulatory law.” LMG 2017 at 1. It formed in 2009 to consider the needs of students under health reform, which was then being actively debated in Congress. It produced a report in 2009 that made policy recommendations and noted the lack of comprehensive data. For example, a study by the U.S. Government Accountability Office found that in 2006, 20 percent of students ages 18–24 were uninsured — useful information but limited because at least a third of those pursuing higher education are older than 24. Lookout Mountain Group, Analysis and Policy Recommendations for Providing Health Insurance and Health Care Services for the College Student Population (2009), available at <https://docs.hbc-slba.com/docs/request_repository.php?id=151> (last visited November 18, 2019; registration required) [hereinafter “LMG 2009”]. The LMG 2017 study attempted to address that data gap.
5.
ACA § 1501, 26 U.S.C. § 5000A (2012), amended by Act to Provide for Reconciliation Pursuant to Titles II and V of the Concurrent Resolution on the Budget for Fiscal Year 2018, Pub. L. No. 115-97 § 11081, 131 Stat. 2054, 2092 (2017) (originally introduced as the Tax Cuts and Jobs Act of 2017). In late 2018, a federal judge ruled that without the tax penalty, the individual mandate lacks constitutional grounding, and thus the entire law must fall. Texas v. United States, 352 F. Supp. 3d 665 (N.D. Tex. 2018), appealed, State of Texas, et al v. USA, et al, USDC No. 4:18-CV-167 (5th Cir. Jan. 7, 2019).
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The Kaiser Family Foundation has conducted regular polling about the ACA overall and its component parts since shortly after it was signed into law. “Kaiser Health Tracking Poll: The Public's Views on the ACA (Favorable/Unfavorable),”Kaiser Family Foundation (November28, 2018), available at <https://www.kff.org/interactive/kaiser-health-tracking-poll-the-publics-views-on-the-aca/#?response=Favorable–Unfavorable> (last visited November 18, 2019) [hereinafter “Kaiser Health Tracking Poll”].
7.
V.Reed“Many College Students Required to have Insurance,”San Diego Business Journal26 no. 15 (April11, 2005): 17. See also minutes of meeting of the University of California Regents, September 14, 2000, available at <http://regents.universityofcalifornia.edu/minutes/2000/board900.pdf> (last visited November 18, 2019).
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W.Zelman, “Enrolling College Students In Health Insurance: Lessons From California (Part 1),”Health affairs Blog, October20, 2014, available at <https://www.healthaffairs.org/do/10.1377/hblog20141020.042043/full/> (last visited November 18, 2019). This report notes that nearly half of the 450,000 students on the 23 Cal State campuses report family incomes under 138% FPL, the expansion Medicaid cutoff, and over 80 percent report family incomes under 400% FPL, the cutoff for subsidized health coverage on the marketplaces.
42 U.S.C. § 18118(c) (exempting these plans from “guaranteed issue” and other requirements, thus allowing them to be available only to students); 45 CFR § 147.145 (characterizing them as a type of individual insurance). A small number of schools self-insure for student coverage and are outside the direct scope of these regulations. They have been indirectly subject to them to meet the individual mandate's standards for “qualifying” insurance, though that mandate has been rendered toothless and perhaps unconstitutional. See supra note 5.
There is a long-running issue whether and for what purposes graduate students who fulfill teaching or research functions are primarily students or primarily employees. This is evident in the ongoing disputes over unionization attempts, which often feature disputes over health insurance benefits. See G.Falasco and W. J.Jackson, “The Graduate Assistant Labor Movement, NYU and Its Aftermath: A Study of the Attitudes of Graduate Teaching and Research Assistants at Seven Universities,”Hofstra Labor and Employment Law Journal21 (2004): 753, 786. See also E.A.Harris, “Columbia University Says It Won't Bargain with Graduate Student Union,”The New York Times, January30, 2018, available at <https://www.nytimes.com/2018/01/30/nyregion/columbia-university-wont-bargain-with-graduate-student-union.html> (last visited November 18, 2019).
16.
42 U.S.C. § 300gg-14, Extension of dependent coverage; 45 CFR. § 147.120 (pertaining to eligibility of children until at least age 26).
17.
See “Kaiser Health Tracking Poll,” supra note 6.
18.
C.DeNavas-Waltet al., “P60-239, Income, Poverty, and Health Insurance Coverage in the United States: 2010” (2011): 4, U.S. Census Bureau, current population reports, available at <http://www.census.gov/prod/2011pubs/p60-239.pdf> (last visited November 18, 2019). The report noted that “this represents 500,000 fewer young adults without health insurance.”
19.
See “LMG 2017,” supra note 2; “LMG 2018 Press Release,” supra note 2.
See “LMG 2017,” supra note 2; “LMG Press Release 2018,” supra note 2.
24.
B.L.Mahoney, “Right-Wing Whipping Boy: I Shouldn't Have Health Care?”The Hartford Courant, October4, 2013, available at <https://perma.cc/4NZQ-XF29> (last visited November 18, 2019).
25.
ACA § 2001(a)(4) (codified as amended at State plans for medical assistance, 42 U.S.C. § 1396a(10)(A)(i)(VIII) (2012)) (amending § 1902 of the Social Security Act); National Federation of Independent Business (NFIB) v. Sibelius, 567 U.S. 519, 575-88 (2012) (plurality opinion) (holding unconstitutional the requirement of Medicaid expansion and, as remedy, making it a state option).
See “LMG 2017,” supra note 2; “LMG Slide Deck 2018.” supra note 2.
28.
Compare Massachusetts (97.4%) and Vermont (98.8%) with Texas (82.9%) and Mississippi (85.9%). “LMG Slide Deck 2018,” supra note 2, (unnumbered pages for respective states).
29.
National Federation of Independent Business (NFIB) v. Sibelius, 567 U.S. 519, 583 (2012).
30.
Id., at 635-36 (partial concurrence, partial dissent).
31.
N.Huberfeld, “The Universality of Medicaid at Fifty,”Yale Journal of Law and Policy15, no. 1 (2015): 67-87, 69 [hereinafter 2015 Huberfeld].
32.
Id. See also N.Huberfeld and J.L.Roberts, “Health Care and the Myth of Self-Reliance,”Boston College Law Review57, no. 1 (2016): 1-60, (drawing on vulnerability theory and empirical data to highlight the reach and necessity of public health coverage programs.).
33.
J.Lepore, “Ruth Bader Ginsburg's Unlikely Path to the Supreme Court,”The New Yorker, October1, 2018.
34.
S.Sotomayor, My Beloved World (New York: Knopf, 2013): at 11, 123.
35.
See R.Stevens and R.Stevens, Welfare Medicine in America: A Case Study of Medicaid (New York: The Free Press, 1974) at xvi (highlighting novel aspects of Medicaid's statutory design that were intended to make it function less like charity care and more like private insurance and noting that “there was considerable discussion at the time of Medicaid passage emphasizing that the poor would receive the same care, from the same sources, as the rich; this was known as bringing Medicaid recipients into the ‘mainstream’ of medicine.”).
36.
See 2015 Huberfeld, supra note 31, at 73.
37.
M.S.Sparer, “Medicaid at 50: Remarkable Growth Fueled by Unexpected Politics,”Health affairs34, no. 7 (2015): 1084-1091, 1084, 1085, available at <http://content.healthaffairs.org/content/34/7/1084.full.pdf> (last visited November 18, 2019).
38.
Health Care and Education Reconciliation Act of 2010 § 1202, 42 U.S.C. § 1396a(a)(13)(C) (2012).
39.
See “ACHA Medicaid Advocacy Primer: A Proposal For Providing Medicaid Eligible Students With An Option For Student Health Insurance Coverage,”American College Health Association: affordable Care Act And Student Health Insurance (May2013), available at <http://www.acha.org/documents/resources/aca/ACHA_Medicaid_Advocacy_Primer_May2013.pdf> (last visited November 18, 2019) (predicting 5 million college students would be eligible for Medicaid if all states adopted the expansion and proposing premium assistance arrangements).
E. W.Leonard, “Crafting a Narrative for the Red State Option,”Kentucky Law Journal102, no. 2 (2014): 381-439, 409 n.198.
44.
Texas v. United States, supra note 5 (holding that without the tax penalty, the individual mandate lacks constitutional grounding, and thus the entire ACA must fall). See J.Ober-lander, “Sitting in Limbo—Obamacare Under Divided Government,”New England Journal of Medicine380 (2019): 2485-2487, available at <https://www.nejm.org/doi/full/10.1056/NEJMp1903373> (last visited November 18, 2019) (citing range of legal scholars who believe the district court's severability analyses is flawed).
45.
S.T.Sanford, “Nobody Knew How Complicated: Constraining the President's Power to (Re)Shape Health Reform,”American Journal of Law & Medicine45, nos. 2 & 3 (2019): 106-129 [hereinafter Sanford “Nobody Knew”].
46.
Letter from CMS to State Medicaid Directors, “Re: Opportunities to Promote Work and Community Engagement among Medicaid Beneficiaries,”Centers for Medicare and Medicaid Services (January11, 2018), available at <https://www.medicaid.gov/federal-policy-guidance/downloads/smd18002.pdf> (last visited November 18, 2019).
See Kaiser Family Foundation (“KFF”), “Medicaid Waiver Tracker: Approved and Pending Section 1115 Waivers by State,”April18, 2019, available at <https://www.kff.org/medicaid/issue-brief/medicaid-waiver-tracker-approved-and-pending-section-1115-waivers-by-state/> (last visited November 18, 2019) [hereinafter KFF “1115 Waivers by State”] (interactive Medicaid waiver tracker, with section on work or community engagement requirements, and links to the waiver requests).
49.
Stewart v. Azar, 313 F. Supp. 3d 237, 243 (D.D.C. 2018). See also S.D.Watson, “Medicaid, Work, and the Courts: Reigning in HHS Overreach,”Journal of Law, Medicine & Ethics46, no. 4 (2018): 887-891.
50.
Stewart v. Azar, 313 F. Supp. 3d 237, 265 (D.D.C. 2018).
K.Keith, “The Short-Term, Limited-Duration Coverage Final Rule: The Background, The Content, And What Could Come Next,”Health affairs Blog, August1, 2018, available at <https://www.healthaffairs.org/do/10.1377/hblog20180801.169759/full/> (last visited November 18, 2019) (explaining STLD rule).
57.
See Sanford “Nobody Knew,” supra note 45 (discussing state responses as well as other limited-coverage federal proposals). See also Complaint, Association for Community Affiliated Plans v. United States Department of Treasury, U.S. District Court, District of Columbia, Civil Action 1:18-cv-02133, available at <https://www.courtlistener.com/recap/gov.uscourts.dcd.200087/gov.uscourts.dcd.200087.1.0.pdf> (last visited November 18, 2019) (challenge to 2018 STLD regulations).
J.D.Clinton and M.W.Sances, “The Politics of Policy: The Initial Mass Political Effects of Medicaid Expansion in the States,”American Political Science Review112, no. 1 (2018): 167-185 (citing studies).
61.
Id.; K.Baicker and A.Finkelstein, “The Impact of Medicaid Expansion on Voter Participation: Evidence from the Oregon Health Insurance Experiment,”University of Chicago Becker Friedman Institute for Economics, Working Paper No. 2018-76 (November6, 2018), available at <https://ssrn.com/abstract=3279592> (last visited November 18, 2019); J.Haselswerdt, “Expanding Medicaid, Expanding the Electorate: The affordable Care Act's Short-Term Impact on Political Participation,”Journal of Health Politics, Policy and Law42, no. 4 (2017) 667-695; see also M.Sanger-Katz, “Where Medicaid Is Expanded, More People Vote,”New York Times, November8, 2018 (discussing studies); and the Journal of Health Politics, Policy and Law44, no. 3 (2019) (issue focused on political engagement related to the ACA).
62.
See Clinton and Sances, supra note 60, at 170.
63.
Id.
64.
See Goodnough, supra note 47 (discussing 2015 gubernatorial election and subsequent effort to impose work or community engagement requirements on Medicaid expansion population).
65.
See Baicker and Finkelstein, supra note 61.
66.
See Haselswerdt, supra note 61.
67.
See U.S. Census Bureau, supra note 59 (chart with data back to 1980, captioned “more millennials vote: only age group to see voter turnout increase since 2012”). N.Thomaset al., “Democracy Counts: A Report on U.S. College and University Student Voting (2012 and 2016),”Institute for Democracy & Higher Education, 1-21, 2017, Tufts University, available at <https://idhe.tufts.edu/sites/default/files/NSLVE%20Report%202012-2016_1.pdf> (last visited November 18, 2019) [https://perma.cc/627A-29DT] (study of 10 million deidentified records for students in all 50 states showed that their turn-out increased, and more so than general population). See also “Young People Dramatically Increase their Turnout to 31%, Shape 2018 Midterm Elections,”The Center for Information & Research on Civic Learning and Engagement, November7, 2018, available at <https://civicyouth.org/young-people-dramatically-increase-their-turnout-31-percent-shape-2018-mid-term-elections/> (last visited November 18, 2019).
