that they are met to the states, which have adopted different types of standards, have limited enforcement powers, 44 and vary significantly in their efforts to wield the enforcement powers that they possess. 45 Therefore, malpractice and other tort claimants cannot assume that the networks provided
by their health plans will be adequate to meet their future tort-related health
care needs, or that the networks will remain adequate over time.
C. Uninsured and Uninsurable Americans
A further basic assumption underlying the proposal is that, thanks to the
individual mandate and guaranteed issue provisions in the ACA, claimants
will have health insurance. 46 But many people are exempt, practically or le-
gally, from the mandate: “members of certain religious groups and Native
American tribes; undocumented immigrants (who are not eligible for health
insurance subsidies under the law); incarcerated individuals; people whose
incomes are so low they don’t have to file taxes . . . ; and people for whom
health insurance is considered unaffordable (where insurance premiums after
employer contributions and federal subsidies exceed 8% of family in-
come).” 47 According to an estimate by Jonathan Gruber at MIT, forty percent
of those who would lack insurance in the absence of the ACA are exempt
under the law. 48
Other individuals will not have insurance because they choose to pay the
tax. 49 In 2015, the tax is $325 per person or 2 percent of yearly income; from
2016 on, the tax is $695 per person or 2. 5 percent of yearly income. 50 Even
44. See, e.g., Paul Shukovsky, Washington Insurance Commissioner Adopts New Provider Network Rules, 23 HEALTH L. REP. 660, 660 (2014) (quoting a spokesperson for Washington State Insurance Commissioner as stating “we don’t believe we have the authority to
force an insurance company to contract with a provider”).
45. See Sally McCarthy & Max Ferris, ACA Implications for State Network Adequacy
Standards, ST. HEALTH REFORM ASSISTANCE NETWORK 12-16 (Aug. 2013), http://
(summarizing the approach taken by various states to different network adequacy standards).
46. Congdon-Hohman & Matheson, supra note 1, at 156 (stating that due to the individual
mandate and the subsidies under the ACA, one should expect most persons to have to have
47. Cynthia Cox & Larry Levitt, The Individual Mandate: How Sweeping?, KAISER FAM.
FOUND. (March 21, 2012), http://kff.org/health-reform/perspective/the-individual-mandate-how-sweeping/.
49. See Health Care Coverage and Federal Income Taxes, U.S. DEP’T OF HEALTH AND
HUM. SERVS, http://www.hhs.gov/healthcare/facts-and-features/fact-sheets/health-coverage-and-federal-income-taxes/ index.html (last visited on Feb 18, 2015) (stating that “ A much
smaller fraction of taxpayers, an estimated 2 to 4 percent, will pay a fee because they made a
choice to not obtain coverage they could have afforded and are not eligible for an exemption.”).
50. See The Fee You Pay If You Don’t Have Health Coverage, HEALTHCARE.GOV,
https://www.healthcare.gov/what-if-i-dont-have-health-coverage/ (last visited May 14, 2014).