What do GOP efforts to undo Affordable Care Act mean for pre-existing conditions?

Protecting health insurance coverage for pre-existing conditions remains one of the most popular provisions of the Affordable Care Act, but a Florida Democratic leader said it is at risk.

Speaking at a forum sponsored by the Tampa Bay Times, Democratic party chair Terrie Rizzo and her counterpart at the Republican Party of Florida — state Sen. Joe Gruters — debated the parties’ plans for health care. 

"Donald Trump and the Republicans have spent the past four years trying to dismantle the ACA. They are doing everything they can — without a plan to replace it I might add — to take away health care plans for millions of Americans," she said. "If they are successful in completely dismantling the ACA, all provisions for pre-existing conditions, there is no guarantee for people who have pre-existing conditions."

Rizzo was referring to a lawsuit filed by Republican attorneys general from multiple states seeking to undo the Affordable Care Act. While impeachment proceedings have dominated recent news, health care remains a top issue for voters heading into the 2020 election. So we wanted to  assess the status of efforts to dismantle the Affordable Care Act and its protection for patients with pre-existing conditions.

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The Affordable Care Act  prevented insurance companies from excluding patients with pre-existing conditions through multiple provisions.

First, the law says point-blank that carriers "may not impose any preexisting condition exclusion." It backs that up with another section that says they "may not establish rules for eligibility" based on health status, medical condition, claims experience or medical history.

Another provision states that while insurers can charge older people more, they can’t charge them more than three times what they charge a 21-year-old policy holder.

A fourth measure lists the essential health benefits that every plan, except grandfathered ones, must offer. 

This would all change if the plaintiffs in Texas vs. Azar are successful in their argument that the entire health law should be invalidated.

While efforts by Trump to repeal Obamacare have stalled, the Republicans declawed the individual mandate requiring most Americans to be insured by setting the penalty for not having insurance at zero in the 2017 tax bill.

The Republicans pursuing the lawsuit cite the gutting of the individual mandate as their reason for the broader law being overturned, and a Texas judge in December agreed.

Trump’s Justice Department has refused to defend the Affordable Care Act, so many Democratic attorneys general are defending  it instead.

The Fifth Circuit Court of Appeals heard arguments in the case in July. The case could wind up before the U.S. Supreme Court. 

The impact of a decision to invalidate the law — and the absence of legislation to provide explicit protections for pre-existing conditions — could vary state to state.

"The residents of Florida would lose the right not to be denied insurance based on their health status, or charged a higher premium due to their health status, gender, occupation or other risk factors," said Sabrina Corlette, a professor at Georgetown University’s Health Policy Institute.

Several other key protections would also be lost, including the ban on annual or lifetime coverage limits, the cap on annual out-of-pocket cost-sharing, and free preventive care, she said.

There are other possible outcomes.

One might be that the Fifth Circuit Court of Appeals decides that the individual mandate could be severed from the rest of the Affordable Care Act, which could mean keeping the protections for pre-existing conditions.

"That is not what the GOP plaintiffs are advocating for, but it is a possible result," said Wendy Netter Epstein, a law professor at DePaul University College of Law.

There are some protections that exist in HIPAA (Health Insurance Portability and Accountability Act) and GINA (Genetic Information Nondiscrimination Act) which mostly protect those who have pre-existing conditions who get employer-sponsored insurance. GINA prohibits insurers from using genetics in coverage decisions.  

The Trump administration has taken other steps to undermine the law.

Jonathan Adler, a health law expert at Case Western Reserve University, previously told PolitiFact the structure of Trump’s promise about what his administration "will" do, rather than commenting on what it has done leaves open the possibility of taking other steps to keep pre-existing condition protections in place. Adler has supported previous Obamacare challenges, but he argued that this one is legally unsound.

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