Considerations

• The amendment clarifies that beneficiaries of Tricare or Veterans health care programs meet the individual mandate requirement of the health care Act with that coverage.

• The amendment also provides that all VA and DOD health care programs are to remain intact with their benefits unaffected by the health care Act.

Background

• Section 1501 of the health care bill provides the individual mandate, requiring that all lawful residents purchase qualified insurance coverage or pay a penalty.

• To be sure, the bill provides that certain government sponsored programs meet the requirement to maintain “minimum essential coverage,” namely Medicare, Medicaid, SCHIP, Tricare for Life, and “the Veteran’s health care program” under Title 38 Chapter 17.

• It is of some question, however, whether all those who receive health care as a military or veteran benefit would meet this requirement.
o For example, Representative Ike Skelton, the Chairman of the House Armed Services Committee, said during the House’s consideration of the Senate health care bill, “Although the health care legislation passed by the House explicitly exempted TRICARE from being affected, the Senate bill did not.”

• The entire House apparently had this fear for all military families, veterans, and their dependents, because it rushed through on Saturday by a unanimous vote the Tricare Affirmation Act, HR 4887, which amended the health care bill it was about to pass on Sunday to clarify that health care coverage provided by the Tricare program shall constitute minimal essential health care coverage required by the health care Act.

• In explaining his amendment, Senator Burr asserted that this quick fix may not make clear that all Tricare and Veterans health programs satisfy the individual mandate.  For example, he mentioned a Veterans Spina Bifida program under Title 38 Chapter 11, which would not be captured by the terms of the health care Act that is now law.
o In interpreting legislation, courts oftentimes rely upon a canon of construction that expressio unius est exclusion alterius, where the expression of a list of items of an associated group or series is meant to exclude other items left unmentioned.
o As noted in the second bullet above, the health care Act provides a list of government programs providing that if someone has health coverage under one of those programs that person meets the “minimum essential coverage” requirement.
o The Veterans Spina Bifida program would not be on that list.
o It is also unclear, for example, if the fix-it language of the Tricare Affirmation Act covers CHAMPVA (Civilian Health and Medical Program), a program providing benefits to the surviving spouse or child of a veteran who died from a service-connected disability, as well as to spouses and children of veterans rated permanently and totally disabled from a service-connected disability.

• There is little guidance on when a legislative list is meant to be exhaustive as opposed to illustrative.  United States v. Vonn, 535 U.S. 55, 65 (2002).  This amendment removes that guesswork, making it plain and unambiguous that Tricare and all VA health care programs satisfy the individual mandate. 

• Democrats assert this reconciliation bill is the opportunity to correct unacceptable elements of the Senate health care bill.  It should certainly be unacceptable that the Senate bill does not make clear that Tricare and VA health care coverage satisfies the individual mandate.

• If this amendment is not adopted, it would not be clear that Tricare or VA health program beneficiaries comply with the individual mandate of the health care Act.  If they do not, and those beneficiaries do not bring themselves into compliance with this demand by 2014, they would face a penalty.  If any of that penalty falls on a service member or Veteran not making at least $250,000 per year, this would violate the pledge of candidate Obama that his tax plans “will not raise any tax rate on families making less than $250,000 per year, period!”

• Voting against this amendment could potentially subject active duty service members and veterans health care beneficiaries to penalties for failure to comply with the individual mandate.