Charleston, WV – A federal court case threatens to end insurance rules that now protect people with pre-existing medical conditions. If the case succeeds, what would state lawmakers do?
As it stands now – nothing, as current Republican legislative leadership declines to commit to protect West Virginians with preexisting conditions, nearly half the population.
Neither Speaker Tim Armstead or Senate President Mitch Carmichael return calls requesting comment. Governor Jim Justice and House Health Committee Chair Joe Ellington – a Princeton Physician – both expressed sympathy for people with pre-existing conditions at risk of losing coverage. But no one in a position of power under the dome has pointed to a way forward if the protections end.
Although it’s the kind of technicality often buried in the fine print, Delegate Mick Bates – a Beckley Physical Therapist – says ending the protection is “complete madness that will wreck havoc” on a healthcare finance system that “is already badly strained.”
He says many, maybe most, families struggle to pay their medical expenses. And Bates says there is no question that people will die if they can’t get coverage. Projections in the Washington Post based on a study by the Harvard School of Medicine found that for every five hundred people who gain health insurance, one death is prevented per year.
Bates says given that, the Texas suit could have a terrible impact on West Virginia's healthcare system. “It’ll just push it off a cliff,” he says.
By one count, 800,000 West Virginians – about 45 percent of the state – have some kind of pre-existing condition. Often these are serious, chronic health problems like high blood pressure or diabetes. Before the passage of the Affordable Care Act in 2010, insurance companies would charge those people more, or deny them insurance outright.
The ACA forces insurance plans to cover pre-existing conditions at no extra cost. It’s one of the most popular parts of the healthcare reform law.
But the lawsuit led by the state of Texas could end that rule. The federal Department of Justice and the state of West Virginia (specifically Attorney General Patrick Morrisey) have decided to join the suit, as have a number of red states. Many blue state AGs have joined the opposition to it.
Most legal observers describe the Texas suit as a long shot, but they also see it as a central part of national Republican drive to undermine the ACA. Since healthcare reform passed, they point to the GOP’s continuous efforts to undo it – in Congress, federal agencies, and the courts. The insurance rules are a key part of how the ACA works, and if the lawsuit fails other attempts will be made to get rid of them.
Depending on how sneaky the insurance companies want to get in the fine print, almost anything could be defined as a pre-existing condition. Bates says the lawsuit could return America to more of an unregulated insurance system when insurers sold “sham policies,” which he says “look great until you try to use them, and then you find out they cover nothing.”
Brianne Solomon, a teacher from Culloden, says she remembers what that was like and doesn’t want to go back. Solomon has Lupus and another related auto-immune disorder. She says if she had to pay out of pocket for one of her medicines, a 90 day prescription would be $360.
“There is no way I could afford that.”
If untreated, Lupus will often have fatal complications. Solomon says she was diagnosed in 2012, meaning she has never had to fight to find insurance for it. But she says she does remember when she used to go to the doctor to have her asthma treated.
“The nurses said there were ways to work around telling the insurance companies what I had. They said we shouldn't say that you have asthma, that we should call it something else, pulmonary something,” so she wouldn’t loose her insurance.
“I can't even imagine what my out-of-pocket costs would be now,” she says.
Basically, the Texas lawsuit could return the country to when these kinds of insurance rules were set by individual states. And on a personal level, state officials will say they’re sympathetic to people with pre-existing conditions.
Governor Jim Justice says, “I would surely hope that we could find a way to be able to cover those people that have pre-existing conditions because that's a tough nut right there.”
He says if “somebody is really hurting, you always want to try to do everything we possibly can to help.”
Neither Speaker Tim Armstead or Senate President Mitch Carmichael return calls requesting comment.
House Health Chair Ellington says he does not want the protections ended. But he says there are no plans now to take action if the suit succeeds.
“It's my intent that we would keep insurance where pre-existing conditions are included in coverage and that they can't deny anyone. The problem would be the cost of the insurance.”
Republicans in Congress and critics argue that the ACA insurance rules – which require policies to cover a number of things, including pre-existing conditions – are causing premiums to rise. Defenders of the law say premiums have actually risen more slowly since it was passed.
Ellington says there may be lawmakers who object to telling the insurance companies that they have to cover something – even if the patient brought the problem on themselves though a poor lifestyle choice such as smoking, overeating, drinking or substance abuse.
“It depends on what the preexisting conditions are a result of – bad behavior or just bad genetics. Some people can't help having a preexisting condition. But there are some that are self-generated. I don't know if it's fair for those to pay higher premiums that don't have have any problems.”
He says keeping everyone in one, big insurance pool does keep overall premiums affordable, but that also means that younger, healthier people help pay the cost for the older and sicker.
Ellington says before the ACA there were state-run insurance pools for people who could not get coverage otherwise. Some ACA repeal bills in Congress included funding for states to set up insurance for folks who couldn’t afford coverage in the open market. But critics say those state run insurance plans have always been extremely expensive. And they say the repeal bills would leave the states holding the bag, by funding ten percent or less of the cost.
West Virginia has the added problem of being a state with a small population that is older, poorer and sicker than average. Ellington says some relief could be found in opening up West Virginia’s market to policies from other states.
But critics charge that would open the state’s insurance market to plans from states with little or no regulation, a wild west insurance market full of fly-by-night companies making a quick buck off the kind of sham policies Bates talks about.
Although there are no signs the current Republican-led legislature has any plans for dealing with the question, one of the state’s most knowledgeable health insurance consumer advocates could actually join the House this fall. Renate Pore is a Democrat running for the 35th House of Delegates seat – South Charleston and part of Kanawha County.
Pore says other states have already started to step up, and she wants West Virginia to as well. “Hawaii just passed and the Governor there signed a state law saying that insurance companies cannot discriminate against people with pre-existing conditions. Since the State Insurance Commission regulates these policies, I see no reason we couldn’t pass a similar law.”
Pore says if elected she’d propose a bill to do just that.
Bates and Ellington say they are worried that if Texas wins in court, or of Congress passes something that would have the same effect, federal rules could overrule anything the state does.
Bates worries that too many people stand to make too much money if people are denied coverage. “In the end the only people in favor of that are the politicians and the health insurance companies.”
He says it is impossible to find any organization of healthcare professionals – nurses, doctors, hospitals, other kinds of providers – that thinks ending the pre-existing protection rule is a good idea.
“This is politics at its worst, playing with lives of sick people. I don’t want anyone to get sick, but I’m afraid the only way this will stop is if the attorney general and everybody else behind this, if they get sick, if their mother, their sister, their brother, when they get sick. That's when it will stop, when it becomes personal.”
Dan Heyman has been covering West Virginia politics and policy for more than two decades. He likes dogs but has trouble keeping kudzu from swallowing everything he owns. For more of Dan's WV Strong content, click here.