Ten Republican Senators have introduced a bill that they say will require health insurers to cover pre-existing conditions if the Affordable Care Act (“ACA”) is invalidated. Critics counter that the bill offers little actual protection. Like the ACA, it would prohibit insurers from denying enrollment based on pre-existing conditions, but unlike the ACA, it would not require insurers to cover the conditions themselves.

The bill is the latest volley in an ongoing battle over the fate of the ACA. Here are some key steps that set the stage:

  • The 2017 tax bill eliminated the ACA tax penalty on individuals who do not have health insurance, effective as of 2019. This is one of two elements that has brought more healthy people into the individual market; the other is subsidized plans for those in lower income brackets.
  • In April 2018, CMS and HHS issued a rule permitting states to establish the levels of coverage insurers must offer in their health plans. Federal law no longer requires insurers to cover all of the ACA’s “essential health benefits.”
  • This month, hearings in Texas v. United States begin. A group of 20 states will argue that the tax penalty is a constitutional linchpin of the ACA, without which the law is invalid. The states also are asking for a preliminary injunction to halt operation of the ACA while the case is litigated. Seventeen states have filed an opposing motion.
  • The Justice Department is not defending the ACA in the Texas case. It has suggested that without the tax penalty, some parts of the ACA may still be valid, but the individual mandate, the pre-existing condition coverage requirement, and the prohibition on charging higher premiums based on medical history are not.

The Senate bill was introduced just two weeks before hearings are to begin in the Texas case. It was drafted as an amendment to a separate law (HIPAA), so that if a preliminary injunction were granted or the ACA were held to be unconstitutional, the bill’s provisions would remain unaffected.

Coverage for pre-existing conditions is among the most popular elements of the ACA, and critics cast the bill as a political ploy ahead of the elections. They note that the bill’s sponsors are not pressing the Justice Department to protect pre-existing condition coverage in the Texas case, and they point to ACA protections that will be lost if the lawsuit is successful. The bill’s sponsors respond that they introduced the bill to address pre-existing condition coverage in case the lawsuit succeeds, and if other issues become problematic down the road, they will address them.

Of the GOP Senators who voted against ACA repeal in 2017, Lisa Murkowski is a sponsor of the bill, but Susan Collins considers it problematic because it does not address essential health benefits and other ACA consumer protections.

Stay tuned for further developments in both the court case and the proposed legislation.