Republican foes of the Affordable Care Act always have taken pains to assure the public that whatever they do, they’ll protect people with preexisting medical conditions.

That’s wise, because polls always have shown that the public values that feature of the ACA above almost all others.

The concern is based on bitter experience: Before the ACA’s enactment, it was common in the individual health insurance market for applicants to be turned down for coverage over conditions from anemia to varicose veins; the exclusion rules for Blue Shield of California ran to 25 pages. Nor was it uncommon for insurers facing a big claim to pore through the patient’s medical background in search of an undisclosed prior condition, no matter how trivial.

‘Pre-existing condition exclusions’ were common in individual market insurance policies before the ACA. Larry Levitt, Kaiser Family Foundation


The ACA barred such “medical underwriting”: Insurers had to accept all applicants and cover their treatment. But the threat to patients with medical histories has recurred, thanks to a lawsuit brought in federal court by Texas and 19 other red states and supported by assorted right-wingers.

The lawsuit seeks to invalidate the ACA as unconstitutional, based on Congress’ elimination of the individual mandate penalty as part of the tax cut enacted in December. If their wish is granted, the ACA’s protections for those with preexisting conditions will go out the window.

Accordingly, congressional Republicans have cooked up what they call a rescue plan. It’s billed as the “Ensuring Coverage for Patients with Pre-Existing Conditions Act” and introduced by Sen. Thom Tillis (R-N.C.), with the support of nine other red-state senators.

The measure says that no insurer may reject an insurance applicant based on his or her medical condition or history. But it’s got a loophole that even the dimmest insurance company could drive a hearse through: It doesn’t require that the insurer provide for treatment of the applicant’s preexisting condition.


That makes the bill’s guaranteed access to insurance “something of a mirage,” says Larry Levitt, senior vice president of the Kaiser Family Foundation. Levitt observed on Twitter that “So-called ‘pre-existing condition exclusions’ were common in individual market insurance policies before the ACA, and are also typical in current short-term policies.” At best, they can impose waiting periods for treatment of those conditions; at worst, they exclude coverage permanently.

Put another way, under the Tillis measure, an insurer couldn’t reject a cancer patient’s application for insurance — but could provide that patient with coverage for everything except cancer. As Levitt puts it, the minimum standards for “protecting” people with preexisting conditions include no denial of coverage based on health, no surcharging of those patients over the standard premium, coverage of all the ACA’s “essential benefits,” including hospitalization, maternity care and prescription drugs, and no exclusions or waiting periods for specific conditions or treatments.

Every state has a sizable percentage of residents with pre-existing conditions, though Appalachia and the deep South have higher rates. (Kaiser Family Foundation)

The Tillis proposal meets only the first test. It allows insurers to expand the factors for setting premiums beyond the two permitted by the ACA (age and tobacco use) to include gender, occupation and leisure activities — another artifact of the pre-ACA era, when insurers reserved the right to turn thumbs-down on pilots, cab drivers, scuba divers and air traffic controllers.


What’s most insidious about the Tillis proposal is that it authorizes such exclusions by omission. The Texas lawsuit does its damage by invalidating the provisions of the ACA that prohibit those exclusions; the Tillis bill simply fails to reinstate them.

Have any of these conditions? You risk being excluded from treatment by insurers in the individual market if a lawsuit against the ACA succeeds. (KFF)

As a team from the Kaiser Family Foundation documented in an analysis Tuesday, every state has significant percentages of residents with preexisting conditions that could be affected by the Texas lawsuit. No community in the KFF database showed a percentage lower than 20% (Logan, Utah, and Rochester, Minn.); the ratio runs as high as 41% on the Tennessee-Virginia border. The rate rises with age — for those 60 to 64, it’s 47%.

The Texas lawsuit places the health of those people in the individual market on a knife-edge. The lawsuit has been implicitly endorsed by the Trump administration, which decided in June not to defend the ACA against it and agreed with the plaintiff states that key provisions of the act are unconstitutional.


Trump’s action forced the attorneys general of 16 other states, including California’s Xavier Becerra, to intervene to defend the act. Oral arguments in the case are scheduled for next month.

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