I. INTRODUCTION TO HEALTH CARE SHARING MINISTRIES II. INTRODUCTION TO THE REGULATORY LANDSCAPE III. WHAT ARE HEALTH CARE SHARING MINISTRIES A. Christian Care Ministries--Medi-Share B. The Christian Brotherhood Newsletter Christian--Healthcare Ministry IV. WHAT LAW APPLIES TO HCSMS? V. HOW HAVE COURTS TREATED HEALTH CARE SHARING MINISTRIES? A. Commonwealth v. Reinhold: Medi-Share is Insurance B. Commonwealth v. Reinhold: Medi-Share Does Not Qualify for the Religious Publication Exemption 1. The Reinhold Dissent: Medi-Share is Not Insurance 2. The Reinhold Dissent: If Medi-Share is insurance, it should Fall under the Religious Publication Exemption C. Barberton Rescue Mission, Inc. v. Insurance Division of Iowa: the Christian Brotherhood Newsletter is Not Insurance VI. HOW SHOULD COURTS AND STATE REGULATORS TREAT HCSMS? A. Recognize the Legal Difficulties Of Equating HCSMs with Insurance B. Recognize the Logical Difficulties Of Equating HCSMs with Insurance C. What to Do With the Dearth of Case Law on HCSMs 1. Some Guidance from U.S. Supreme Court Precedent 2. Courts Should Apply the "Safe Harbor" HCSM Statutes 3. Should Courts Review other Analogous Case Law? VII. SOME FINAL CONSIDERATIONS FOR COURTS AND STATE INSURANCE REGULATORS A. The Freedom to Contract/Public Policy B. The Freedom of Religion C. The Separation of Powers D. Implications of HCSMs' Status as Charitable Organizations E. Federal Preemption Under PPACA VIII. CONCLUSION: THE REINHOLD EPILOGUE IX. CONCLUSION: OBSERVATIONS AND ANALYSIS APPENDIX A: STATE AND FEDERAL CASE LAW LISTING THE ASSUMPTION OF THE RISK AS AN ELEMENT OF INSURANCE APPENDIX B: STATES WITH "SAFE HARBOR" STATUTES FOE HCSMS
I. INTRODUCTION TO HEALTH CARE SHARING MINISTRIES
Individuals and families face difficult choices about health care as the costs of medical care and health insurance continues to rise, and as the Patient Protection and Affordable Care Act's "Individual Mandate" approaches. Well over 160,000 Americans have found a solution for the high costs of medical care and health insurance through the services of Health Care Sharing Ministries (HCSMs). (1) Members of HCSMs also have the benefit of a religious exemption from the "Individual Mandate" in the Patient Protection and Affordable Care Act (PPACA). (2) In brief, these ministries provide "a health care cost sharing arrangement among persons of similar and sincerely held beliefs." (3) HCSMs are not-for-profit religious organizations that act as clearinghouses for "those who have medical expenses and those who desire to share the burden of those medical expenses." (4) The Alliance of Health Care Sharing Ministries, which represents two of the three major HCSMs, provides this further information: (5)
* HCSMs receive no funding or grants from government sources.
* HCSMs are not insurance companies. HCSMs do not assume any risk or guarantee the payment of any medical bill. Twenty-one states as of August 2012 have explicitly recognized this and specifically shelter HCSMs from their insurance codes. (6)
* HCSMs serve more than 160,000 people, with participating households in all fifty states. (7)
* HCSMs' participants share more than $120 million per year for one another's health care costs.
* HCSMs strive to be accessible to participants regardless of their income.
* Traditionally, HCSM costs are a fraction of the cost of insurance rates. (8)
Health Care Sharing Ministries have operated in the United States for about thirty years. (9) HCSMs are "founded on the biblical mandate of believers to share each other's needs." (10) HCSM members "seek to apply Galatians 6:2, 'Bear one another's burdens, and thus fulfill the law of Christ' to ... ever-rising medical costs which can be quite …