Think of health policymaking like those old-timey variety show videos of people spinning a bunch of plates at once. There’s just a ton going on, and focusing only on one thing will cause the rest of the apparatus to come crashing down.
This, in a tortured-metaphor kind of way, explains why health policy experts say that Colorado U.S. Sen. Cory Gardner’s Pre-Existing Conditions Protection Act of 2020 wouldn’t entirely do what its title promises. While the bill does provide some protections for people with preexisting conditions, it doesn’t contain many other provisions that supporters of the current law say are needed to keep the rest of the health insurance policy apparatus from cracking apart like so much fallen china. On top of that, the bill doesn’t contain any of the usual features of legislation that are needed for implementation.
Gardner’s bill is Senate Bill 4506. Its substance is contained within a single sentence that states:
A group health plan and a health insurance issuer offering group or individual health insurance coverage may not impose any pre-existing condition exclusion with respect to such plan or coverage, factor health status into premiums or charges, exclude benefits relating to pre-existing conditions from coverage, or otherwise exclude benefits, set limits, or increase charges based on any pre-existing condition or health status.
In comparison, the Affordable Care Act (a.k.a. Obamacare), was more than 900 pages long.
What current law says
The ACA is still the law of the land, at least for the time being. And, while it may be most famous for providing protections for preexisting conditions, the law contains a number of other mechanisms designed to make insurance affordable, accessible and fair to all people. Here’s a rundown:
Preexisting conditions: Similar to Gardner’s bill, existing law states that insurers “may not impose any preexisting condition exclusion with respect to such plan or coverage.” Prior to the ACA, health insurers would typically agree to cover someone for everything except for their preexisting conditions. (A quick note on preexisting vs. pre-existing: Associated Press style is to say preexisting, no hyphen, so that’s what we use in everything that’s not a direct quote of written text. Gardner’s bill uses pre-existing, with a hyphen. The ACA, confusingly, used both.)
No medical underwriting: Before the ACA, health insurers might require a physical or a review of health records before deciding how much to charge someone for insurance. The ACA banned that, as well as the practice of charging women more than men. Now, the only things on which insurers can base premium variations are where you live, how old you are and whether you use tobacco products. The charges based on age and tobacco use are “banded,” which means there’s a limit to how much more insurance companies can charge older people or tobacco users. Gardner’s bill would protect against being charged more based on health status, but it does not contain any regulations around charges based on age, gender or other factors.
Guaranteed issue: It used to be that health insurers could decide they just didn’t want to sell coverage to someone because that person was too unhealthy. Current law requires them to sell health insurance to everybody, what’s known as the “guaranteed issue” provision. The ACA states: “[E]ach health insurance issuer that offers health insurance coverage in the individual or group market in a State must accept every employer and individual in the State that applies for such coverage.”
Gardner’s bill contains no such explicit provision. His camp argues that the language of his bill effectively provides this guarantee, but experts are skeptical. Nicholas Bagley, a law professor at the University of Michigan who is a national expert in health law, said the bill would mean insurers “could altogether refuse to sell coverage to that person. I don’t care what Senator Gardner’s office thinks the bill says. That’s in fact what it says.”
Essential health benefits: Current law defines a set of benefits that all health insurance plans have to cover. Prior to the ACA, it was common for health plans to, say, not provide coverage for maternity care. The law now requires insurers to cover: ambulatory (i.e. outpatient) care; emergency care; hospitalization; pregnancy, maternity and newborn care; mental health and substance use disorder services; prescription drugs; rehabilitative services; laboratory services; preventative care and chronic disease management; pediatric care.
Gardner’s bill does not contain a guarantee of specific coverage benefits. Without such a provision, an insurer could decide it wouldn’t cover treatment for certain chronic diseases for anyone, regardless of when they develop the disease, making a promise to protect that preexisting condition meaningless, health policy experts say.
No limits on benefits: Prior to the ACA, insurers often imposed annual or lifetime caps on how much they would pay out to cover people’s health needs. If a person’s condition was more expensive than that, the individual may have lost their insurance and had to pay out of pocket to cover everything else. The ACA bans lifetime caps and restricts annual limits. Gardner’s bill does say that insurers can’t set limits “based on any pre-existing condition or health status.” But it’s not clear whether that less-detailed language would maintain the same kind of protections as exist in current law.
Subsidies: In sum, the ACA required insurers to cover a lot more than they had been. That made insurance more expensive to buy, so the law created a system of federal subsidies to help people afford coverage if they are buying it on their own without help from their employer. The subsidies are tied both to your household income and to how expensive coverage is in your area, and they are available through the federal HealthCare.gov exchange or, for states that set up their own exchanges, through places like Colorado’s Connect for Health Colorado exchange.
Gardner’s bill contains no subsidy provisions.
“If you guarantee coverage for preexisting conditions and didn’t do anything to attract healthy people to the market, the premiums would just explode,” said Larry Levitt, the executive vice president for health policy at the nonpartisan Kaiser Family Foundation and a former policy advisor to the Clinton administration. “There’s nothing in Sen. Gardner’s bill to preserve the premium subsidies that are in the Affordable Care Act if it were overturned.”
When Gardner’s bill might become relevant
So, for the most part, everything that’s in Gardner’s bill is already in current law.
But that may change in the coming months. A long-running lawsuit that challenges the constitutionality of the ACA is slated to be heard by the U.S. Supreme Court on Nov. 10, the week after Election Day. Both President Donald Trump, whose administration has supported letting the courts strike down the law, and Gardner will be on the ballot on Election Day.
If the ACA is overturned, Gardner’s bill — if passed — would preserve some protections for people with preexisting conditions, Levitt said. But it wouldn’t come close to replicating the total coverage protections and benefits that the ACA provides, which come at the cost of more expensive insurance plans for many people.
Currently, about 115,000 people in Colorado purchase insurance with the help of federal subsidies, according to the Kaiser Family Foundation. Combine that with the more than 420,000 people who have gained coverage under the ACA’s Medicaid expansion in Colorado, and you have more than a half-million people in the state who would suddenly lose or struggle to afford health insurance if the ACA went away. That’s nearly 10% of the state’s population.
Uncertainties about Gardner’s bill
Typically, bills contain definitions of the terms used in them and citations of existing law that the bill would either amend or be added to. That allows regulators to implement them in the way they were intended and gives judges the chance to read the new provisions in the context of the surrounding laws when interpreting them.
Gardner’s bill doesn’t have that, which is unusual, Bagley said.
“It’s unusual to have a federal law that doesn’t indicate which U.S. code section it would go in,” he wrote in an email. “That’s especially so in the health-care space, since there’s already so much law on the books.”
By contrast, here is how the ACA proposed the same kind of protection for preexisting conditions that Gardner’s bill does:
SEC. 1201. AMENDMENT TO THE PUBLIC HEALTH SERVICE ACT.
Part A of title XXVII of the Public Health Service Act (42 U.S.C. 300gg et seq.), as amended by section 1001, is further amended—
(1) by striking the heading for subpart 1 and inserting the following:
‘‘Subpart I—General Reform’’;
(2)(A) in section 2701 (42 U.S.C. 300gg), by striking the section heading and subsection (a) and inserting the following:
‘‘SEC. 2704. PROHIBITION OF PREEXISTING CONDITION EXCLUSIONS OR OTHER DISCRIMINATION BASED ON HEALTH STATUS.
‘‘(a) IN GENERAL.—A group health plan and a health insurance issuer offering group or individual health insurance coverage may not impose any preexisting condition exclusion with respect to such plan or coverage.’’; and
(B) by transferring such section (as amended by subparagraph (A)) so as to appear after the section 2703 added by paragraph (4);
It keeps going on for about a dozen more lines, but you get the idea.
Gardner has introduced plenty of bills before that read more like standard legislative proposals. Take, for instance, his Developing Economic Prosperity and Linking Our Youth through Broadband Act (which can also be referred to by the acronym DEPLOY and would bring broadband internet access to more rural and underserved areas). It was introduced in July, and it contains both definitions for the terms used within it and citations for what laws it would modify.
The lack of specificity in Gardner’s health bill leads Bagley to conclude that the proposal “isn’t a genuine effort to address the deep problems in a complex health care system. It’s a political document, and it looks like all it’s designed to do is give Sen. Gardner a convenient talking point.”
Gardner’s office denies this.
“This bill was drafted to explicitly prohibit insurance companies from denying coverage or charging more for people with pre-existing conditions – and that is what it accomplishes,” said Annalyse Keller, Gardner’s spokeswoman.
But Levitt said protecting preexisting conditions is simply more complicated than it appears.
“You can’t just waive a magic wand and make it happen,” Levitt said. “It’s a whole kind of interlocking set of protections in the Affordable Care Act that helps people with pre-existing conditions.”
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