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A Project of The Annenberg Public Policy Center

Bloomberg, Trump Spar on Preexisting Conditions

Democratic presidential candidate Mike Bloomberg charged in a TV ad that President Donald Trump had “broken” a “promise” to protect those with preexisting health conditions. Trump fired back on Twitter, “I was the person who saved Pre-Existing Conditions.” In fact, Trump backed Republican plans that would have weakened the protections in the Affordable Care Act.

Bloomberg’s ad began airing on Jan. 11 in TV markets across the country, with a nearly $6 million ad buy in just four days, according to Advertising Analytics.

The TV spot begins with a video clip of Trump saying, “Those preexisting conditions are protected.” An announcer then says: “A broken promise. Trump repeatedly tried to undermine coverage for 134 million Americans with preexisting conditions.” That figure is an Obama administration high-end estimate for those with existing medical conditions, regardless of their type of health coverage. But the ACA protections primarily affect the individual market, where just 6% of the population gets coverage.

The video of the president appears to be from a July 19, 2017, lunch with members of Congress in which Trump discussed improving a Senate Republican bill, introduced about a week prior, to repeal and replace the Affordable Care Act. Trump said a GOP plan would include, “Stabilizing exchanges, so that those preexisting conditions are protected.” But the Republican bills at the time — and one introduced two months later — would have provided fewer protections than the ACA.

As we have explained before, insurers can’t deny coverage or charge more based on health status under the ACA. Those provisions of the law have primarily affected the individual market, where those without insurance through an employer or a government program such as Medicaid buy their own policies. Before the ACA, premiums on the individual market were often set based on health status, and coverage could be denied entirely, as Georgetown University’s Center on Health Insurance Reforms explains.

The GOP bills debated in 2017 did include some of the ACA protections, but not all of them. In particular, the Republican plans could have caused some with medical conditions to pay higher premiums:

  • The House Republican bill, passed on May 4, 2017, would require insurers to charge 30% higher premiums for one year to those who were entering the individual market and had a gap in coverage of 63 days or more over the previous 12 months. That’s regardless of a person’s health status. But states also could get waivers to allow insurers to charge even more for one year to people with preexisting conditions and that lapse in coverage.
  • The Senate GOP bill — which was rejected by the Senate in a July 25, 2017, procedural vote — would have required insurers to offer coverage regardless of health status on state and federal marketplaces or exchanges, such as HealthCare.gov. But insurers could sell non-compliant plans, charging more or denying coverage, on the individual market outside of those marketplaces. The bill would have provided federal money to compliant plans to help lower their costs, as those with medical conditions would likely get that coverage.
  • A third GOP plan — known as the Graham-Cassidy bill — would have enabled states to allow insurers to charge more based on preexisting conditions. The bill, which Republicans pulled from consideration in late September 2017, would have allowed states to establish insurance market rules, including how insurers could vary premiums. Insurers couldn’t vary them based on gender or genetic information, and states would have to describe how they would “maintain access to adequate and affordable health insurance coverage for individuals with pre-existing conditions.”

For more on the Republican plans, see our story “The Facts on the GOP Health Care Bills.”

At the time the Graham-Cassidy bill was under consideration, Trump claimed on Twitter: “I would not sign Graham-Cassidy if it did not include coverage of pre-existing conditions. It does!” But that ignored the fact that insurers could have priced policies based on health status in states that allowed it. 

Trump, in his Jan. 13 tweet, accused Bloomberg of “False Advertising,” adding, “I was the person who saved Pre-Existing Conditions in your Healthcare, you have it now, while at the same time winning the fight to rid you of the expensive, unfair and very unpopular Individual  Mandate.”

We’re not sure how Trump can argue he “saved” preexisting conditions, when the failed Republican bills he supported would have weakened the ACA protections. We reached out to the White House press office about the claim but have not received a response.

In the second of a two-tweet thread on preexisting conditions, the president also mentioned Republican actions “in court,” an apparent reference to a lawsuit his administration has backed that argues the ACA is unconstitutional. In 2012, the Supreme Court had ruled the individual mandate, or requirement to have insurance, was constitutional under Congress’ power to tax. But in late 2017, the Republican tax law eliminated the fee associated with that mandate. The plaintiffs in the Texas suit argue that without any monetary penalty, the mandate, and the entire law, should fall.

We don’t know what actions the administration would take on preexisting conditions if the ACA is ultimately struck down, but a 2018 letter from then-Attorney General Jeff Sessions said that two provisions of the law would need to be eliminated if the suit were successful: those guaranteeing that people can’t be denied coverage by insurers or charged more based on certain factors.

The case, Texas v. United States, is likely headed to the Supreme Court, though it’s unclear when the high court would rule on it, as a Health Affairs blog post on the case explains.

In December, the Fifth Circuit Court of Appeals upheld a district court decision that the individual mandate was unconstitutional, but sent the case back to the district court for “additional analysis” on whether the mandate provision was severable from the rest of the law. In other words, the court will examine whether the rest of the law could stand even if the mandate was unconstitutional.

The Democratic attorneys general and governors, along with the Democratic-controlled House of Representatives, defending the ACA in the case have asked the Supreme Court to hear an appeal on an expedited basis. The Trump administration has said the lower courts should resolve the severability issue first.

134 Million?

The Bloomberg ad says that “Trump repeatedly tried to undermine coverage for 134 million Americans with preexisting conditions.” But that’s a high-end estimate for all Americans who have a preexisting condition – not those who would be immediately affected if the Supreme Court strikes down the ACA.

If the ACA’s protections were eliminated, 61 million to 133 million people could be “denied coverage, charged significantly higher premiums, subjected to an extended waiting period, or having their health insurance benefits curtailed should they need individual market health insurance coverage,” emphasis is ours, according to a Jan. 5, 2017, report by the Obama administration’s Department of Health and Human Services.

The lower number is an estimate for those with a condition that, before the ACA, generally would have led to a denial of coverage on the individual market, and the higher number, which is 51% of the nonelderly population, includes those who could have been denied coverage, charged more or faced some coverage exclusions.

The ACA’s protections — and the GOP proposed modifications — primarily affect those seeking individual-market health coverage, and it’s highly unlikely everyone with these health conditions, including asthma and arthritis, would seek such coverage. Only 6% of the population gets coverage on the individual market, while 49% have work-based insurance, the same percentage as in 2010, when the ACA was enacted.

However, the ACA did institute some new protections for those with employer-based plans, as we’ve explained before. Pre-ACA, employer plans couldn’t deny coverage to workers, but they could decline coverage for some preexisting conditions for a limited period — if a new employee had a lapse in insurance coverage.

Some experts have said that the House GOP bill in 2017 also would have affected employer plans by allowing states to determine the essential health benefits that insurers currently have to cover. Those essential health benefits include 10 services: ambulatory, emergency, hospitalization, maternity and newborn care, mental health and substance use disorder services, prescription drugs, rehabilitative services and devices, laboratory services, preventive care and chronic disease management, and pediatric services including dental and vision.

Under the ACA, regardless of preexisting conditions, employer plans can’t put annual or lifetime limits on coverage of essential health benefits, and a cap on out-of-pocket spending for policyholders is also based on those benefits.

But the Obama administration report focuses on the impact on the individual market, where coverage could be denied or priced higher based on health status without the ACA.