Senators introduce bill to retain prohibition on preexisting condition exclusions

Senators Thom Tillis (R-NC), Lamar Alexander (R-TN), Chuck Grassley (R-IA), Dean Heller (R-NV), Bill Cassidy, M.D. (R-LA), Lisa Murkowski (R-AK), Joni Ernst (R-IA), Lindsey Graham (R-SC), John Barrasso (R-WY), and Roger Wicker (R-MS) have introduced the Ensuring Coverage for Patients with Pre-Existing Conditions Act, which would amend HIPAA to guarantee the availability of health insurance coverage in the individual or group market. The legislation prohibits discrimination against beneficiaries based on health status, including the prohibition against increased premiums for beneficiaries due to preexisting conditions.

“There are strong opinions on both sides when it comes to how we should overhaul our nation’s broken health care system, but the one thing we can all agree on is that we should protect health care for Americans with pre-existing conditions and ensure they have access to good coverage,” said Senator Tillis. “This legislation is a common-sense solution that guarantees Americans with preexisting conditions will have health care coverage, regardless of how our judicial system rules on the future of Obamacare.”

ACA lawsuit. In February 2018, a coalition of 20 states and two individuals asked a federal court in the Northern District of Texas to preliminarily enjoin the entire Affordable Care Act (ACA). The plaintiffs contend the amended ACA is no longer protected from constitutional attack since the Tax Cuts and Jobs Act of 2017 (P.L. 115-97) eliminated the tax for failure to comply with the individual mandate.

Subsequently, the Department of Justice indicated it would not defend the constitutionality of the ACA’s individual mandate in the lawsuit. The DOJ also argued in a response brief to the plaintiffs’ request for a preliminary injunction that the individual mandate cannot be severed from the ACA’s guaranteed-issue (i.e., prohibition on preexisting condition exclusions) and community-rating requirements.

Protections retained? Oral arguments in the case will begin on September 5, and if the judge rules in favor of the plaintiffs, protections for patients with preexisting conditions could be eliminated. Although the bill’s purpose appears to be to retain those protections, some critics suggest the bill contains loopholes that would allow an insurer to sell a policy to a person with a preexisting condition that doesn’t cover that condition.

“Senate Republicans have finally admitted that this horrendous lawsuit is dangerous for the country and are scrambling to find a fix,” Senator Joe Manchin (D-W.Va.) said in a statement. “If Republican Attorneys General win this lawsuit, we will go back to a time when insurance companies could deny coverage to people with diabetes, arthritis, cancer, heart disease and any other pre-existing condition. This harmful lawsuit should never have been brought in the first place . . .”

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