From Volume 84, Number 4 (May 2011)
Even after landmark health reform in 2010, our health care system will not achieve universal coverage. The Patient Protection and Affordable Care Act is expected to leave twenty-three million people uninsured after a decade. And until several major provisions take effect in 2014, fifty million people will remain uninsured. This Article argues that cross-border health insurance plans that utilize foreign medical providers are a surprisingly feasible alternative for the residually uninsured. Cross-border plans can be much less expensive than traditional, domestic-only plans. And they might appeal to immigrants and others that are neither eligible for public plans nor able to afford private ones. The Article begins by evaluating the 2010 health reform legislation and the populations that it leaves out. I then reveal how gaps in our health care system are being filled by foreign medical providers. Three major constituents of the U.S. health care system now utilize foreign providers: patients travel as “medical tourists” when they cannot afford care domestically; insurers outsource high-margin procedures to foreign hospitals; and somewhat perversely, some U.S. hospitals facing extraordinary expenses repatriate immigrants to their native countries in a form of international “patient dumping.” These trends reflect what I call the “new geography” of health care. The Article demonstrates how cross-border plans might appeal both to immigrants and to the nonimmigrant middle class that cannot afford traditional insurance. I explain how cross-border plans operate and propose various solutions to the legal and practical impediments that presently discourage such arrangements. For example, the Article applies “new governance” theories to recommend how to impose quality standards on foreign providers that otherwise reside beyond the jurisdiction of domestic regulators. This Article also confronts an underlying normative question: How much should we relax or reconfigure our standards to make health care more accessible? I argue that if a significant portion of residents cannot afford health care in the United States–and if we are not prepared to provide it publicly as most other countries do–then we should reimagine current laws that contemplate only domestic care and create a legal framework that allows patients to seek it elsewhere.