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A Project of The Annenberg Public Policy Center

Bogus Attack in Coal Mine Country

A TV ad in West Virginia’s 3rd District falsely claims that Republican Evan Jenkins “vowed to repeal black lung benefits.” Jenkins vowed to repeal the Affordable Care Act, not end black lung benefits. A repeal of the ACA would make it more difficult for some miners and surviving spouses to prove eligibility for the Federal Black Lung Benefits Program. But that would not repeal the benefits, which were created under a separate law.

Furthermore, Jenkins is on the record repeatedly saying he would replace the ACA — not just repeal it. And the Jenkins campaign now says on its website – in response to this ad – that “he is firmly opposed to any cuts to the Federal Black Lung Benefit Program.”

The ad also goes too far in saying Jenkins “supports letting insurance companies charge women more for health care.” That’s also a reference to the ACA, specifically to a provision that bars insurance companies from setting premiums in the individual and small-group markets based on gender. It’s true that repealing the law would allow insurance companies to charge women more. But we could find no record of Jenkins opposing the ACA because of that provision, and when we asked about it, the campaign said Jenkins “would support a replacement bill that prohibits gender-based ratings when setting premiums.”

The House Majority PAC, a super PAC dedicated to returning the Democrats to power in the House, has run three TV ads, including this one, so far in West Virginia’s 3rd Congressional District — one of the most competitive House races in the country. Jenkins, a state senator, is challenging Rep. Nick Rahall, a 19-term Democrat who was first elected to Congress in 1976. Rahall won reelection by 8 percentage points in 2012, but the Cook Political Report rates this year’s race a tossup.

The ad, titled “Worry,” features a married couple, Rick and Terri Ryan, expressing concern about what would happen if Jenkins is elected. Terri Ryan says, “He vowed to repeal black lung benefits and supports letting insurance companies charge women more for health care.”

We could find no record of Jenkins ever saying he would repeal black lung benefits, as the ad claims. Instead, the ad cites an Oct. 27, 2012, article in the Charleston Gazette about provisions in the Affordable Care Act that relate to the Federal Black Lung Benefits Program. House Majority PAC spokesman Matt Thornton makes the argument that Jenkins’ support for repealing the Affordable Care Act — which is never mentioned in the ad — is the equivalent of support for repealing black lung benefits. We disagree.

The Black Lung Benefits Act provides monthly payments and medical benefits to miners found to be totally disabled from pneumoconiosis (black lung disease) caused by working in or at coal mines. An individual miner is eligible for a monthly payment of $631.80 per month and up to $1,263 for a family of four or more, according to the Department of Labor. Repealing the Affordable Care Act would not change those payments or the amounts.

The ACA, however, did include two so-called Byrd amendments, named after the former Democratic Sen. Robert Byrd of West Virginia, that made it easier for miners and their surviving spouses to get benefits, as described last year in a department press release:

Department of Labor, Sept. 25, 2013: The first amendment mandates a presumption of total disability or death caused by pneumoconiosis for coal miners who worked for at least 15 years in underground (or comparable surface) mining and who suffer or suffered from a totally disabling respiratory impairment. The second amendment provides automatic entitlement for eligible survivors of miners who were themselves entitled to receive benefits as a result of a lifetime claim.

Timothy C. MacDonnell, director of the Black Lung Legal Clinic at Washington and Lee University, told us that prior to passage of the ACA, there was an irrebuttable presumption of total disability only if x-rays of a miner’s lungs showed a mass or lesion that was greater than 1 centimeter in diameter. But other miners, he said, had to prove that coal dust was the significant cause of their disease and not other environmental factors, such as smoking. A Byrd amendment shifted the burden of proof in those cases from miner to the mining company by requiring the company to prove that coal dust was not a significant factor in the disease.

The second Byrd amendment ends the practice of requiring a widow to reapply for survivor benefits after her husband dies and having to “prove the whole case again,” as MacDonnell put it.

There is no doubt that these amendments make it easier for some miners and their surviving spouses to obtain benefits and do so more quickly. In an October 2009 report, the Government Accountability Office said over half of claimants who were denied benefits and lost on appeal in fiscal year 2008 “could not prove they had pneumoconiosis or, if they could, that pneumoconiosis had caused disability or death.” MacDonnell, whose clinic carries about 40 to 50 active cases at any one time, said that “these amendments are significant in well over half of the cases I deal with.”

But the ad leaves viewers with the false impression that Jenkins would abolish all black lung benefits, and only the most inquisitive among the viewers would dig into the citations to figure out what we discovered: Repealing the Affordable Care Act would not “repeal black lung benefits.” Black lung benefits would continue — although some miners and surviving spouses would be denied benefits and some would find it harder to obtain benefits. And that assumes that there would be no attempt to preserve the Byrd amendments either in a replacement health care bill or a standalone piece of legislation.

We asked the Jenkins campaign about the Black Lung Benefits Program, which understandably would be a sensitive issue in a state that produces more coal than any other state except Wyoming. Andrew Sere, a consultant to the Jenkins campaign, told us in an email that Jenkins “would support legislation that similarly reduces the burden on black lung applicants seeking the full and fair benefits to which they are entitled.”

The second claim in the ad — that Jenkins “supports letting insurance companies charge women more for health care” — also refers to the Republican’s vow to repeal the ACA.

As we have written before, insurance plans sold on the individual and small-group markets can no longer charge more based on health status or gender, and the law limits pricing based on age. A repeal of the law, if it is not replaced, would allow companies to charge women and older people more for health insurance — as the ad says. But the Jenkins campaign website says: “Evan will lead efforts to repeal ObamaCare and replace it with common sense health care reforms.” He also wrote a Nov. 30, 2013, op-ed in which he said that “it’s time to repeal and replace Obamacare.” The question now is: What will he replace it with?

Jenkins provides a few examples of legislation that he supported as a state senator — including one that would allow young adults to stay on their parents’ insurance policy until age 25 (which is one year earlier than the ACA). There is nothing about community rating, which is the rule that prohibits insurance companies from charging more based on factors such as gender and health status. Again, we asked the campaign for the candidate’s position on this specific provision. Sere told us in an email that Jenkins “would support a replacement bill that prohibits gender-based ratings when setting premiums.”

We cannot predict future behavior. We can’t say what Jenkins will do; we can only report what he has done and what he said he will do. He has said he would repeal the ACA. He has not said he would repeal all black lung benefits — or the expanded eligibility in the law — and he has not said he would support charging women more for health insurance. He has provided only a few examples of the kinds of provisions he supports in a replacement ACA bill, and none of them dealt with black lung benefits or gender-based rating. But he said he would preserve both provisions of the law. We note, too, that while the Jenkins campaign updated its issues page on coal to say that Jenkins “is firmly opposed to any cuts to the Federal Black Lung Benefit Program,” it did not do the same for gender-based rating on its “Obamacare” page.

We understand that these positions were taken after the ad appeared. But Jenkins is now on record, and West Virginia’s 3rd District voters can hold him to his word.

— Eugene Kiely