Media Myths About Obamacare Smoker 50% Surcharges Abound

Surveys show that many Americans are confused about Obamacare, and recent examples suggest that the media may be contributing to the confusion, at least with regard to the smoker 50% surcharge provisions of the Affordable Care Act [ACA] - Expert
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Nov. 26, 2012 - PRLog -- WASHINGTON, D.C. (November 26, 2012): Surveys show that many Americans are confused about Obamacare, and recent examples suggest that the media may be contributing to the confusion, at least with regard to the smoker 50% surcharge provisions of the Affordable Care Act [ACA], says public interest law professor John Banzhaf, who lobbied successfully for inclusion of this concept – which he first developed in 1984 – into the ACA and proposed regulations.

"Properly understood, this provision could save businesses $12,000 annually for each smoker they now employ, help the great majority of smokers who already want to quit to finally do so, and restore to the American economy more than the total cost of Obamacare," says Banzhaf, who obtained two federal rulings (in 1987 and 2004) approving its use, and set the stage for dozens of states to adopting and/or approving it.

MYTH - "The Government is Imposing a Smoker Surcharge": This was suggested on Fox News on Sunday morning when a smoker spokesman opposed the new ACA regulations because they allegedly were unfair to smokers. What he apparently didn't realize is that, for more than two decades, a small but growing number of companies have been charging smokers more for health insurance – just as smokers are generally charged more for life insurance, and bad drivers are charged more for car insurance – so that the new law and its regulations don't suddenly require a smoker surcharge. They simply permit companies to continue doing pretty much what they have been doing for a long time, but with a 50% cap.

MYTH - "Smokers Can Avoid the Surcharge by Attending Cessation Classes": Several major media outlets, including the Washington Post, have suggested that the new regulations might permit smoking employees to avoid the smoker surcharge entirely, simply by attending a few smoking cessation classes offered under a "wellness" program. But, as Banzhaf and other legal scholars have pointed out, this isn't so, since many plans aren't required to have a wellness component, and there's no guarantee that the financial incentive offered by such a wellness program would equal the cost of the smoker surcharge. ***

MYTH: "There Should Also be an Obese Surcharge": Some commentators have argued that it’s unfair to apply a surcharge to smokers, because of the enormous added medical and other costs they impose on their fellow employees, without applying a similar surcharge, for the same reasons and under the same conditions, on workers who are obese. But the federal government has determined that being obese is a "health status" or "disease" entitled to legal protection, whereas smoking has been ruled to simply be a "behavior."

MYTH: "A Smoker Surcharge Will Not Deter Smoking": In a Fox News debate on this topic with Prof. Banzhaf, Garry Nolan, the Libertarian Party's candidate for president, asserted that, far from deterring smoking, a surcharge will prompt the poor to smoke more, leading to increased death rates among them. He argued: "it's clear what [Banzhaf] wants to do - kill poor people. . . . "when you raise costs for the poor with regard to tobacco, they just spend more on tobacco." But the actual text of the study shows it proved no such thing, and the authors continued to assert that increasing the cost of smoking is an effective way of helping the great majority of smokers who already want to quit to do so. ***

MYTH: "A Smoker Surcharge is Unfair Discrimination": But the proposed ACA regulations also permit people to be charged more for their health insurance if they are older (something they can't change), as well as if they live in a neighborhood where many neighbors are unhealthy (something they can change), even if the older person is much healthier than average. So it’s hard to see why applying the same rationale to people who smoke is unfair or discriminatory – any more than basing rates on age or address rather than smoking status – or why it's an accepted practice for life insurance but not for health insurance.

MYTH: "A Smoker Surcharge is Unreasonable Because Smokers Are Addicted": Actually, only some smokers are addicted, and those who are addicted are addicted to the drug nicotine and not to the act of smoking itself. In other words, addiction to the drug nicotine is well documented and medically accepted, but there are no studies showing that the mere act of smoking by itself is addicting. This is an important distinction, because smokers who are addicted to nicotine can still get their nicotine "fix" or "hit" from nicotine patches, nicotine gum, nicotine inhalers, or e-cigarettes – and thus quit smoking while still maintaining an addiction to nicotine.

In short, says Banzhaf, the new regulations related to a 50% smoker surcharge simply continue a long tradition of leaving it to individual companies to determine whether smokers are imposing large unnecessary costs on them and their other employees and, if so, to require the smokers to bear some of the costs rather than making the majority of workers who are nonsmokers share them equally.

Permitting companies to shift some of these costs to smokers without governmental interference is simply to let the American free enterprise system operate as it should. The end result is to finally begin to impose some personal responsibility upon smokers for their own behavior and, in doing so, helping them to quit.

From their point of view it's also better than the alternative – the growing number of companies which are simply declining, openly or otherwise, to hire smokers at all.

Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418 @profbanzhaf
Source:Professor John Banzhaf, GWU Law School
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Tags:Obamacare, Surcharge, Smoker, Aca, Cessation
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