As States Brace for ACA Lawsuit, Senate Considers Protections for Pre-existing Conditions

Ten Republican Senators recently introduced legislation to protect patients with pre-existing conditions. While these protections are already included in federal law though the Affordable Care Act (ACA), the proposed bill would preserve some of those protections in the event the ACA is overturned as a result of ongoing litigation.

Specifically, the Senate bill proposes to:

  • Amend the Health Insurance Portability and Accountability Act (HIPAA) so that individual and small group market insurers cannot deny coverage to individuals or their dependents due to their health status (called guaranteed issue), and other factors;
  • Prevent insurers from charging individuals higher premiums based on their health status;
  • Exempt insurers from these provisions in cases where the insurer can demonstrate they do not have the financial capacity to underwrite coverage;
  • Set limits on the use of genetic information and genetic testing data in determining consumer eligibility for insurance or for the purposes of setting premium prices; and
  • Set standards to limit discrimination in wellness programs based on individuals’ health status.

Critics of the bill suggest that the bill’s pre-existing condition protections would be limited because the bill does not preserve other ACA-guaranteed consumer protections, such as provisions that prohibit or limit insures from charging individuals more based on gender, age, tobacco use, and for utilization of specific services (including those necessary to treat their pre-existing conditions).

The lawsuit was brought by 20 state attorneys general. While the US Department of Justice has opted not to defend the ACA, 16 states have intervened to defend the law in court. Oral arguments are scheduled to begin Wednesday, Sept. 5, 2018.