States are wrestling with how to treat smokers under the new health care law as they navigate the thorny issue of providing coverage for those who knowingly engage in harmful behavior and how much taxpayers should pay for those folks' choices.
The Affordable Care Act allows states to charge up to 50 percent more for smokers who refuse to enter a cessation program, with advocates saying it could encourage smokers to ditch the habit, and would make sure they end up paying the higher costs for their health needs.
But city officials in the District of Columbia recently decided to charge them the same rate as nonsmokers, joining Rhode Island, Vermont and Massachusetts. California is considering following suit.
Those places argue that the purpose of the health law is to insure all Americans and that includes smokers, who are disproportionately old, poor or minorities all populations that the bill is trying to make sure get coverage.
While there are numerous plot lines and strains of controversy surrounding President Obama's signature law, the smoker surcharge strikes at the heart of the law's ambition how to handle unhealthy behavior as part of a program designed to provide more coverage for more Americans while reining in the overall cost of health care.
Smokers do have higher risks of health problems, which in the case of the District and the aforementioned states could mean nonsmokers will end up picking up their costs.
But none of those jurisdictions is pondering higher rates for motorcyclists, skydivers or folks who engage in other risky behaviors, said Holly Fernandez Lynch, executive director of the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School.
"We could clearly define those things as choices," Ms. Lynch said. "And yes, that first cigarette could be considered a choice."
But when it comes to insurance, the point is to link risks and benefits to cost. And smoking is a voluntary action that "hugely increases risk on a large scale and is, arguably, justifiably focused on to the exclusion of other risks," said Michael H. Shapiro, a bioethics and constitutional law specialist at the University of Southern California Gould School of Law.
"Not all 'singling out' is unjust or unfair, and it is often just the opposite placing costs on those who create risks for others by unnecessarily increasing the costs of health care," he added.
Michael D. Tanner, a senior fellow at the D.C.-based Cato Institute, said the health care law's "original sin" was to regulate what insurance companies can do, even though they are in the business of managing risk a potential pitfall he says is borne out in the debate over the smoking-related premiums.
When politicians decided to socialize the costs of health care, he said they opened the door to regulating behavior.
"That's always a tension in these things," Mr. Tanner said, noting smokers are considered a "politically incorrect class" and became easy targets for higher premiums.
Timothy S. Jost, a health policy analyst at Washington and Lee University School of Law, said charging a 50 percent smoking surcharge on premiums doesn't make sense mathematically.
"Smokers die younger, but I have seen no evidence that they cost 50 percent more than nonsmokers," he wrote in an email.
Even the American Cancer Society opposed jacked-up premiums for tobacco users. In a position statement, the organization said it has "always been anti-smoking, but never anti-smoker," and higher premiums could thwart smokers from quitting or obtaining insurance.
One of the selling points of the surcharge was that it might compel people to kick the habit. But that claim is in doubt, since nicotine's grip is a strong one.
"We know it's hard for people to quit smoking," Ms. Lynch said. "It says on the label, 'This product will kill you,' but people do it anyway."
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