2019 Year in Preview

Why the politics will continue to favor protections for Americans with pre-existing conditions

In the midterms, Republicans tried to walk back their opposition to guaranteed issue, while health care worked as an issue for Democrats.

Richard Mark Kirkner
Contributing Editor

So much love was shown in the last election cycle—love for people with pre-existing health conditions—even from people whose actions haven’t shown a whole lot of love. A number of erstwhile suitors walked back their opposition to the idea. Look at Missouri Attorney General and now Republican senator-elect Josh Hawley, who declared his love for people with pre-existing conditions even though he’d joined a lawsuit with 19 other Republican attorneys general challenging the ACA and its protections for people with pre-existing conditions.

The most graphic flip may have belonged to Arizona GOP Rep. Martha McSally. In her hotly contested race for Sen. Jeff Flake’s seat against Democratic Rep. Kyrsten Sinema (which Sinema won by a slim margin of less than two percentage points), McSally said she was “leading the fight to … force insurance companies to cover pre-existing conditions,” even though she’d voted multiple times to repeal the ACA, and, according to the Associated Press, urged her caucus in a closed-door meeting in 2017 about ACA repeal to “get the f---ing thing done.” But before the election, on Sean Hannity’s radio show, McSally said, “I’m getting my ass kicked” for those ACA repeal votes.

Larry Levitt

“Once people with preexisting conditions, who are a very sympathetic group, have been guaranteed coverage, it’s really hard politically to take it away,” says Larry Levitt.

That may be because most Americans, like a lot of Republicans who ran in November, had already fallen in love with the idea. Kaiser Family Foundation (KFF) polling has found that overwhelming majorities say it is “very important” that the ACA’s protections for people with pre-existing conditions (75%) remain. Even 58% of Republicans agree.

The polling is easy to understand when you consider how many Americans have what might be considered a pre-existing condition. KFF estimated that 27% of adults, ages 18 to 64, and almost half (47%) of the pre-Medicare age group (60-to-64-year-olds) have what could be deemed a pre-existing condition that would have led to either a higher premium or outright denial of coverage in the individual market prior to the ACA. “I think what we found is that once people with pre-existing conditions, who are a very sympathetic group, have been guaranteed coverage, it’s really hard politically to take it away,” says Larry Levitt, a KFF senior vice president and a senior health policy adviser in the Clinton White House.

In less polarized times, that scenario could bring opposing sides together to craft a compromise. Can all the love shown for pre-existing conditions inspire a similar kumbaya between a Republican Senate and Democratic House? Don’t bet on it.

There are three paths forward in 2019 and the years beyond for preserving protections for pre-existing conditions:

1) Nothing much happens legislatively to the ACA protections while the lawsuit brought by Hawley and the other Republican attorneys general makes its way through the courts. The Trump administration’s Department of Justice has joined the lawsuit, known as Texas v. Azar, but 17 states have intervened to fight it and defend the ACA.

2) ACA subsidies are increased to lure more people into the individual market to moderate premiums. “But the tradeoff is more government spending, and that money has to come from somewhere,” Levitt says. Rate this a longshot, partly because it would take legislation. Besides the ACA individual market seems to have stabilized for now. Lawmakers in both parties may figure if it ain’t broke, don’t fix it.

3) Republican ideas for preserving protections for pre-existing conditions get enacted. This probably won’t happen through Congressional action—see number two—but the Trump administration could pursue a regulatory pathway to dismantle pre-existing coverage through the ACA’s Section 1332 innovation waivers. As the Center on Health Insurance Reforms notes, these waivers could allow states to permit insurance products that don’t meet the ACA’s minimum coverage for pre-existing conditions.

This path fits with Republican legislative ideas. The Health Policy Consensus Group—a group of conservative wonks working on an ACA alternative—proposes requiring states to cover pre-existing conditions while giving them more flexibility to do so. Doug Badger of the Heritage Foundation, a member of the group, says the ACA’s guaranteed issue provision comes at a cost of driving up premiums and scaring otherwise healthy people out of the market.

“Our view is that states are far better equipped to deal with those issues than the federal government,” he says. “The federal government’s foray into that market has priced out millions of people.” The proposal would redirect the ACA’s spending on premium tax credits and Medicaid expansion to help states set up risk mitigation mechanisms—like reinsurance and high-risk pools—to protect people with high-cost health conditions, he says.

“The common denominator is to focus public resources on people with pre-existing medical conditions and with chronic illnesses,” Badger says. “Don’t try to spread the cost of covering them onto other policy holders, because the cost of that course, which is what the ACA did, is to price the product out of reach of a lot of people.”

Another idea the consensus group offers to lure younger, healthier people into the individual market: repeal the ACA’s 3:1 age-rating requirements.

Turns out, there are many different ways to profess one’s love for people with pre-existing conditions. To paraphrase Pat Benatar, love can be a battlefield.

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