APPENDIX C1: ACA POSITION PAPER – JOHN FASO’S BETRAYAL ON PRE-EXISTING CONDITIONS

***UPDATE***

This Appendix was posted on February 27, 2017, before John Faso’s final vote in favor of the House version of Trumpcare, which passed narrowly, 217-214. Don’t miss Nancy Guski’s May 28, 2017, Letter to the Editor, “U.S. Rep. John Faso afflicted with untreatable pre-existing conditions,” here, the Times-Record’s May 28, 2017, editorial hereand the story of Faso’s betrayal of his promise to a constituent on Rachel Maddow (complete story begins at 8:12; portion relating to Faso begins at 17:55).

***

Not so fast, John Faso.
Lining up Congressman Faso’s statements with the facts:
Pre-existing conditions

While John Faso has made public statements declaring his support for retaining the ACA provision, his statements do not hold up under scrutiny.

Background

Prior to the ACA, denials of coverage in toto and/or specific to a pre-existing condition were severe. A Kaiser Foundation analysis:

[estimated] that 27% of adult Americans under the age of 65 have health conditions that would likely leave them uninsurable if they applied for individual market coverage under pre-ACA underwriting practices that existed in nearly all states. While a large share of this group has coverage through an employer or public coverage where they do not face medical underwriting, these estimates quantify how many people could be ineligible for individual market insurance under pre-ACA practices if they were to ever lose this coverage. This is a conservative estimate as these surveys do not include sufficient detail on several conditions that would have been declinable before the ACA (such as HIV/AIDS, or hepatitis C). Additionally, millions more have other conditions that could be either declinable by some insurers based on their pre-ACA underwriting guidelines or grounds for higher premiums, exclusions, or limitations under pre-ACA underwriting practices. In a separate Kaiser Family Foundation poll, most people (53%) report that they or someone in their household has a pre-existing condition.

In New York State, Kaiser’s 2015 estimate of non-elderly people with declinable pre-existing conditions under pre-ACA practices was 25% of the population, or 3,031,000 people.

 All that changed under the ACA:

  • All Marketplace plans must cover treatment for pre-existing medical conditions.
  • No insurance plan can reject you, charge you more, or refuse to pay for essential health benefits for any condition you had before your coverage started.
  • Once you’re enrolled, the plan can’t deny you coverage or raise your rates based only on your health.

[From Healthcare.gov]

The above statements are further explained at HHS.gov:

Pre-Existing Conditions

Under current law, health insurance companies can’t refuse to cover you or charge you more just because you have a “pre-existing condition” — that is, a health problem you had before the date that new health coverage starts.

These rules went into effect for plan years beginning on or after January 1, 2014.

What This Means for You

Health insurers can no longer charge more or deny coverage to you or your child because of a pre-existing health condition like asthma, diabetes, or cancer. They cannot limit benefits for that condition either. Once you have insurance, they can’t refuse to cover treatment for your pre-existing condition.

One Exception: Grandfathered Plans

The pre-existing coverage rule does not apply to “grandfathered” individual health insurance policies. A grandfathered individual health insurance policy is a policy that you bought for yourself or your family on or before March 23, 2010 that has not been changed in certain specific ways that reduce benefits or increase costs to consumers.

[From HHS.gov]

Faso statements on pre-existing conditions

Greenberg/Traurig, a leading law firm in New York State with extensive experience in health care and insurance law matters, prepared an analysis of how the ACA would change New York law. With regard to pre-existing conditions, Greenberg/Traurig stated:

“In New York, health plans are authorized to deny insurance coverage based on a pre-existing medical condition [exceptions are listed] and may impose a pre-existing waiting period for up to 12 months. . . . *

“Beginning in 2014, health plans will no longer be able to deny coverage if an individual has a pre-existing condition.” [caveats and exceptions are listed]

[From GTAlert_USSC ACA Decision and NY Health Ins Market June 2012]

Statements by John Faso declaring his commitment to retain the ACA’s provisions regarding pre-existing conditions are based on a return to pre-ACA New York law. Under Greenberg/Traurig’s analysis, however, pre-ACA New York law would severely weaken, if not end altogether, the gains achieved under the ACA.

Faso’s reliance on pre-ACA New York law as his model thus conflicts with his January 17 and 28 statements set forth below. Moreover, any effort to retain the ACA’s pre-existing conditions provision without retaining the ACA’s overall design is doomed to fail. As stated in What Trump Means for the Affordable Care Act at the Scholars Strategy Network (SSN):

“Keeping a few rules in the law while doing away with the requirement to obtain insurance – and the subsidies to pay for it – simply won’t work. Younger, healthier individuals will choose to go uninsured, and prices would sky-rocket for those with pre-existing conditions who cannot go without health insurance. This would be too costly for insurance companies, which might take many steps to avoid sick individuals. In many states, insurance markets could collapse altogether.”

Faso’s statement in the Vox Pop call-in, January 17, 2017

Below is a transcription of an exchange between a caller and Faso on Vox Pop 1/17/17 [at about 45:45]

Ann in Ulster County: “. . . I have a question regarding the beginning of the process to repeal the Affordable Care Act, particularly the dreaded part with the pre-existing condition. I am a cancer survivor and with the reinstatement of pre-existing conditions I will become uninsurable and Mr. Ryan’s high risk pools will not only be unaffordable, but a terrible idea economically. Will you commit today, yes or no, to voting against anything that will reinstate pre-existing conditions.”

Faso: “Yes, I mean our intention and my intention is to make sure that that provision from the ACA survives whatever reform we come up with, and I would note that that was a provision in New York State which previously I had supported years ago, and the way they did it was they said that an insurer had to sell someone with a pre-existing condition a policy. They would be immediately covered for all of their medical conditions other than the pre-existing condition, and that after a period of time of either six or nine months, the coverage would then come in for the pre-existing condition. That was New York State law, and the reason you had that delay is because otherwise people would not buy insurance until they had some very serious medical issue. So, I would envision that some type of formulation like that is going to be, definitely survive whatever effort is made on reform.” [italics added]

Faso’s statements at the Kinderhook protest, January 28, 2017

Statement 1: “There are some principles that are contained within the ACA that I support, namely, for instance, the pre-existing conditions. We already had a law in New York for instance. When I was in the legislature years ago, I voted for that. The ACA nationalized that law.”

Faso’s statement that the ACA “nationalized” New York law is incorrect. The New York statute that Faso referenced is likely an older version of New York State Law, Article 32, Section 3232. Pre-ACA, this statute allowed insurance companies, with certain exceptions, to exclude coverage related to a pre-existing condition for up to 12 months from the date coverage begins. Here is a relevant excerpt:

“No pre-existing condition provision shall exclude coverage for a period in excess of twelve months following the enrollment date of coverage for the covered person and may only relate to a condition (whether physical or mental), regardless of the cause of the condition, for which medical advice, diagnosis, care or treatment was recommended or received within the six-month period ending on the enrollment date.”

[From the most recent version of the statute. The version Faso signed would not have contained the newer provisions intended to conform the statute with the ACA.]

Statement 2: In response to a woman with a brain tumor and horror story about being denied coverage pre-ACA: “I can tell you, I promise, I promise, I promise. We’re not going to take that away from you.” Here is a transcription of the exchange:

Constituent: “I grew up right down the road. [name exchange not audible] I went to school with your kids, your wife was our school nurse [Faso: yeah, she still is.] Awesome. No longer my school nurse. I have a brain tumor and a spinal condition. When I was first diagnosed, I was kicked off my insurance because of a pre-existing condition, and pre-existing conditions were out. And saying I support this is not good enough. I need you, as a human being, to say, I promise that we will not take this away from you.”

Faso, reaching to hug her, says, “I can tell you, I promise, I promise, I promise. We’re not going to take that away from you.”

Constituent: “It’s so important, so important, I need you, I need you to take care of this [inaudible].”

Faso, interjecting, reaches for her hand and says, “I totally understand. I totally understand.”

[Video is on YouTube here.]

Additional articles on the treatment of pre-existing conditions in the House version of Trumpcare

Timothy Jost, in his article, Essential Health Benefits: What Could Their Elimination Mean?, sounds an important alarm:

This comprehensive a repeal of the ACA would have far-ranging consequences for our health care system . . . . Repeal of Title I would also expressly contradict President Trump’s promises that he would preserve at least the pre-existing condition ban and the coverage of adult children requirement. The pre-existing condition ban could be carved out of the repeal, but without the guaranteed availability requirement and health status underwriting prohibition, a preexisting condition exclusion ban is meaningless—insurers would simply refuse to sell coverage to an applicant with a preexisting condition.

The Washington Post’s Fact Checker, How is a ban on preexisting conditions preserved in the GOP replacement bill? is also instructive for evaluating any such proposals.

Also see Margot Sanger Katz’s article, Republican Health Proposal Would Undermine Coverage for Pre-existing Conditions.

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