Amy Monahan and Daniel Schwarcz write:
This Essay argues that federal health care reform may induce employers to redesign their health plans to encourage employees who are likely to consume a greater-than-average amount of medical services to opt out of employer-provided coverage and instead acquire coverage on the individual market. Although largely overlooked in public policy debates, this prospect of employer dumping of high-risk employees raises serious concerns about the sustainability of health care reform more generally. In particular, it threatens the viability of individual markets and insurance exchanges by raising the prospect of adverse selection in these markets caused by the entrance of a disproportionately high-risk segment of the population. This risk, in turn, simultaneously threatens to increase the cost to the federal government of subsidizing coverage for qualified individuals and to exempt more individuals from complying with the so-called “individual mandate.” The Essay offers several legislative solutions to the prospect of high-risk employee dumping that can substantially mitigate these risks.
I found the critique section of the paper more convincing than the legal remedies, but in any case it is an important piece. Schwarcz wrote in the MR comments section:
The worry over employers shedding employees onto the exchange is exactly right, but in a different way than almost everyone seems to think. The real risk is NOT that employers will completely drop coverage, leaving their employees to purchase coverage on the exchange. Instead, it is that employers will offer all employees revised plans that are specifically designed to induce ONLY THE LEAST HEALTHY employees to opt for coverage on the exchange. Most seem to ignore this risk because such employees would not be eligible for subsidies. But employers would nonetheless find this an extremely desirable strategy because (i) they would avoid any penalty under the "employer mandate," (ii) their health care costs would decrease substantially by virtue of reducing coverage and shedding high-cost employees, (iii) high-cost employees would not be much worse off, as they could acquire coverage on the exchange with no medical underwriting or preexisting conditions. While coverage for high risk employees would cost more on the exchange than employer coverage, the employer could defray this cost by putting it's normal contribution into a tax free HRA Account, which could be used for coverage. The employer and its employees would be better off, and exchanges would be subjected to the risk of adverse selection from a disproportionately risky pool of policyholders. For much more on this, see: http://ssrn.com/abstract=1651308.
Addendum: Austin Frakt comments.