Recently, House Minority Leader Kevin McCarthy attributed Republican losses in the midterm elections to GOP efforts to repeal the Affordable Care Act (ACA). In particular, McCarthy pointed to a provision of the House-passed American Health Care Act that would have permitted states to waive pre-existing condition protections, which he argued, “put [the] pre-existing condition campaign against us” in a debate that he called the “defining issue” of the race.
Health care was certainly on voters’ minds last fall: in numerous surveys, voters cited health care as the most important issue, with protections for people with pre-existing conditions standing out as a priority in certain states with competitive races. The voters’ concerns are not misplaced. The ACA’s protections for the estimated 133 million non-elderly Americans with pre-existing conditions currently hang in the balance; in December, a federal judge ruled that the entire ACA was rendered unconstitutional when Congress zeroed out the individual mandate penalty. The ruling has been put on hold pending appeal, but the Trump administration has also engaged in a series of actions that roll back or relax critical provisions of the ACA, resulting in higher premiums for those who need ACA coverage. The potential for losing the ACA protections, along with the political pressure that McCarthy alluded to, has brought the issue of pre-existing conditions to center stage on Capitol Hill.
The House of Representatives recently held three hearings about protecting people with pre-existing conditions, before the Ways & Means Committee, the Education & Labor Committee, and the Energy & Commerce Subcommittee. These proceedings set the scene for how this debate will play out in Congress and offer insight into potential legislative action.
Members on Both Sides of the Aisle Voice Support for Protecting People with Pre-Existing Conditions
Though the ACA remains a point of contention, most members were quick to back protections for people with pre-existing conditions. Ranking Member Virginia Foxx (R-NC) noted that the hearing before the Education & Labor Committee provided Republicans with an opportunity to “set the record straight” on the party’s position on pre-existing conditions. Democratic members also conveyed unequivocal support for protecting access to affordable health care for everyone, regardless of health status. Witness testimonies ranging from patient advocates to farm bureau plan administrators all voiced support for protecting people with pre-existing conditions. Given this agreement, how, then, did this become the “defining issue” of the midterm elections?
From Theory to Practice, Policies Take Divergent Paths Towards Protection
While there was a consensus in each hearing room that people with pre-existing conditions should have access to care, common ground gave way to more partisan policies shortly thereafter. As some members doubled down on defending and strengthening the ACA, others decried the law as detrimental to affordable insurance.
The ACA’s proponents at the hearings tended to favor the law’s method of protection for people with pre-existing conditions. At the Ways & Means hearing, Karen Pollitz, Senior Fellow at the Kaiser Family Foundation, cautioned that a number of recent policy changes (including the expansion of short-term plans and lowering guardrails for states to waive the ACA’s provisions threaten to segment the market) are a major threat to people with pre-existing conditions. CHIR’s own Sabrina Corlette, testifying at the Education & Labor Committee hearing, pointed out that while the ACA is “by no means perfect,” its unprecedented coverage expansion gives Congress something to build on, rather than whittling away its market rules and consumer protections.
Other policymakers and witnesses argued that the ACA’s method of protecting people with pre-existing conditions has led to high premiums, particularly for those who do not qualify for federal subsidies to help pay for premiums and out-of-pocket costs. Avik Roy, President of the economic think tank the Foundation for Research and Equal Opportunity, urged the Energy & Commerce Subcommittee not to “overcharge the healthy to undercharge the sick,” referring to provisions such as the ACA’s 3:1 age band and actuarial value requirements. At the Ways & Means Committee hearing, Nebraska Farm Bureau Chief Administrator Rob Robertson claimed that one of the best ways to ensure pre-existing condition protections is to allow individuals to band together and form Association Health Plans (AHPs). Grace-Marie Turner, President of the Galen Institute, cited complaints from a consumer who had more affordable coverage prior to the ACA, and suggested states should be given flexibility to return to high-risk pools for those with expensive medical needs.
The midterm election results appear to have delivered a wake-up call to House GOP members, resulting in representatives on both sides of the aisle preaching the religion of pre-existing condition protections. However, there remains strong disagreement over how those protections should be provided, and different views about the likely effects of each party’s preferred approach. In the wake of these hearings, look for House Democrats to push legislation that would roll back or blunt recent Trump administration actions that undermine the ACA’ protections. Their GOP counterparts, by contrast, appear likely to tout low-cost alternative coverage options that appeal to younger, healthier individuals, counterbalanced by high-risk pools for those with pre-existing conditions. Meanwhile, there has been nary a mention of the ACA in the relevant Senate committees, suggesting we’re unlikely to see much ACA-related activity on the other side of the Capitol any time soon.