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If we cannot live with the individual mandate, can we cover enough lives without it?

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Event Materials

DRAFT: “Private Law Alternatives to the Individual Mandate” – Wendy Netter Epstein

Event Description

The individual mandate’s penalty for failing to purchase federally required insurance under the Affordable Care Act was eliminated as of January 1, 2019. Its advocates claim that coverage will drop and health insurance premiums will rise higher due to its absence. The mandate’s opponents respond that the mandate needed to be repealed and cost and coverage effects will be modest, at worst.

DePaul law professor Wendy Netter Epstein, in a forthcoming article, suggests that a number of “private law” alternatives to the individual mandate are available and needed to fill the gap in incentives to purchase health insurance. After an address from Ms. Epstein, a panel of scholars in law and economics will provide a vigorous stress test of post-mandate health policy options.

Join the conversation on social media with @AEI on Twitter and Facebook.

If you are unable to attend, we welcome you to watch the event live on this page. Full video will be posted within 24 hours.


12:15 PM

12:30 PM

1:00 PM
David Hyman, AEI; Georgetown University

1:10 PM
Address: Private law alternatives to the individual mandate
Wendy Netter Epstein, DePaul University

1:40 PM
Panel: Behavioral, economic, legal, and political responses

Anthony LoSasso, DePaul University
Thomas P. Miller, AEI
Christopher Robertson, University of Arizona
Shari Westerfield, Excellus Health Plan Inc.

David Hyman, AEI; Georgetown University

2:45 PM

3:00 PM

David Hyman is a professor of law at Georgetown University and an adjunct scholar at AEI. He focuses his research on the regulation and financing of health care and has taught insurance, medical malpractice, law and economics, consumer protection, professional responsibility, tax policy, civil procedure, and a course titled “How to Regulate.” Dr. Hyman served as special counsel at the Federal Trade Commission, where he organized and led hearings on health care and competition — leading to the first joint report issued by the Federal Trade Commission and Department of Justice, “Improving Health Care: A Dose of Competition.” He earned BA, JD, and MD degrees from The University of Chicago.

Anthony LoSasso is professor and Driehaus Fellow in the economics department at DePaul University. He is an economist whose research spans several dimensions of health and labor economics, health policy, and health services and outcomes research. He is keenly interested in how government policies affect private-sector decisions. Dr. LoSasso’s research has explored the impact of the Children’s Health Insurance Program on insurance coverage and the extent to which public coverage substituted for private insurance coverage, how community rating provisions in health insurance markets affect health insurance coverage, and the amount of reclassification risk protection small group health insurance affords small businesses. He is interested in the effects of health insurance benefit design on health care utilization and health outcomes. This work includes a federally funded study examining so-called narrow network insurance plans and ongoing work examining the effects of high-deductible health insurance on health care use. Additionally, Dr. LoSasso is studying workers’ compensation and in particular the effects of alternative workers’ compensation arrangements. With training in labor and health economics and extensive experience studying the effects of insurance in both the private and public sectors, Dr. LoSasso is a nationally recognized leader in the field.

Thomas P. Miller is a resident fellow at AEI, where he studies health care policy, including regulatory barriers to choice and competition, market-based alternatives to the Affordable Care Act, health care litigation, and the political economy of health care reform. A former senior health economist for the Joint Economic Committee in Congress, Mr. Miller was previously a trial attorney, journalist, and sports broadcaster. He is the coauthor of the bestseller “Why Obamacare Is Wrong for America: How the New Health Care Law Drives Up Costs, Puts Government in Charge of Your Decisions, and Threatens Your Constitutional Rights” (HarperCollins, 2011), the first in-depth examination of the Affordable Care Act’s impact. His analyses and commentary have been published and featured widely in peer-reviewed publications and the popular press, including Cato Journal, Health Affairs, Law and Contemporary Problems, the Los Angeles Times, The New York Times, USA Today, The Wall Street Journal, and The Washington Post. Mr. Miller has also testified before Congress on the uninsured, health care costs, Medicare cost sharing, high-risk pools, health care competition, health insurance tax credits, the individual mandate, genetic information, Social Security, and the federal reinsurance of catastrophic events, among other topics. He also speaks regularly on various college campuses and teaches a seminar on “Shaping Law and Policy” at Duke University School of Law. Mr. Miller has a JD from Duke University School of Law and a BA in political science from New York University.

Wendy Netter Epstein is a professor of law at DePaul University College of Law and faculty director of the Mary and Michael Jaharis Health Law Institute. She was previously a visiting professor at the University of Chicago Law School. Ms. Epstein researches and teaches in the areas of health law and policy and contract law. She is an expert on the Affordable Care Act and has recently published articles on prompting health insurance enrollment and improving price transparency and patient decision-making. She brings both economic and behavioral science principles to bear in her scholarly work, which has been published in the Yale Journal of Health Policy, Law, and Ethics; the Southern California Law Review; the Minnesota Law Review; and the Emory Law Journal. Ms. Epstein has won university-level and law school awards for her teaching and scholarship. In addition, she regularly appears in the media to discuss issues of health policy and reform. Before entering academia, Ms. Epstein clerked on the US Court of Appeals for the Ninth Circuit and was a partner in commercial litigation at Kirkland & Ellis LLP, where she continues her affiliation as of counsel. She received a BA from the University of Illinois at Champaign–Urbana and a JD from Harvard Law School.

Christopher Robertson is associate dean for research and innovation and professor of law at The University of Arizona. He is affiliated faculty with the Petrie Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard University and New York University’s Langone Health Working Group on Compassionate Use and Pre-Approval Access. He serves as the reporter for the Health Law Committee of the Uniform Law Commission. Mr. Robertson also founded The University of Arizona’s Regulatory Science program and cofounded Hugo Analytics, which provides data-driven insights into jury behavior. Mr. Robertson is an expert at the intersection of law, health, behavior, and science. He has published more than 50 articles in leading outlets and has been featured in the national media. Mr. Robertson has coedited two books, “Nudging Health: Behavioral Economics and Health Law” (Johns Hopkins University Press, 2016) and “Blinding as a Solution to Bias: Strengthening Biomedical Science, Forensic Science, and Law” (Academic Press, 2016). His book “Exposed: Why Our Health Insurance Is Incomplete and What Can Be Done About It” (Harvard University Press, 2019) is forthcoming. He has served as a visiting professor at Harvard Law School, New York University School of Law, and the London School of Economics and Political Science. His legal practice has focused on complex litigation involving medical and scientific disputes, and he continues to consult in pending litigation. Mr. Robertson graduated magna cum laude from Harvard Law School, where he also served as a Petrie Flom fellow and lecturer. He earned a doctorate in philosophy at Washington University in St. Louis, where he also taught bioethics.

Shari Westerfield is senior vice president and chief actuary at Excellus BlueCross BlueShield, where she oversees the pricing of health insurance products compliant with the Affordable Care Act (ACA) and other health insurance lines of business. She has been a health actuary for over 30 years, serving in various insurance company, trade association, and consulting roles. Ms. Westerfield has been a frequent speaker and author on ACA and other health public policy issues in her previous role as chief actuary for the Blue Cross Blue Shield Association and an active volunteer with the American Academy of Actuaries. She is a fellow of the Society of Actuaries and member of the American Academy of Actuaries. She received a BS from the University of Illinois at Champaign–Urbana in actuarial science.

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