Activists say Murkowski’s bill to protect pre-existing conditions coverage doesn’t do that at all

WASHINGTON — Alaska Sen. Lisa Murkowski and nine other Senate Republicans introduced legislation that they say will protect coverage for people with pre-existing conditions, but health activists are critical, and say the bill doesn't live up to the lawmakers' promises.

Murkowski and her colleagues introduced the bill, they said, to ensure continued coverage for people with pre-existing conditions, no matter the outcome of an ongoing federal court case.

The 2017 Republican tax bill eliminated the Affordable Care Act's (ACA) "individual mandate," the requirement that all citizens have health insurance or pay a tax penalty. Twenty Republican attorneys general sued the government in response, saying that move invalidates the whole law. The Trump administration's Justice Department has opted to not defend the ACA — also called "Obamacare" — in the Texas district court, despite protest of some Justice Department attorneys. The Justice Department has also specifically argued to the court that it should invalidate the ACA protections for people with pre-existing conditions.

Murkowski and nine other Republican senators said they have the answer, and introduced a bill that they said would guarantee access to health insurance, no matter one's health status.

The case — Texas v. United States — heads to court on September 5.

If "the the judge rules in favor of the plaintiffs, protections for patients with pre-existing conditions could be eliminated," the senators said in a press statement. The bill amends the Health Insurance Portability and Accountability Act (HIPAA) to coverage in the individual and group markets, regardless of the case's outcome, the senators said. "The legislation prohibits discrimination against beneficiaries based on health status, including the prohibition against increased premiums for beneficiaries due to pre-existing conditions," they wrote.

But some activists say that the bill is disingenuous, because it misses one major part of protecting people with pre-existing conditions: The bill doesn't stop insurance companies from excluding certain areas of coverage. That means if someone has, say, a heart condition, then a company could offer insurance, but with the exception for those heart-related medical procedures.

The bill is "just not a serious attempt to address this problem," said Sam Berger, a senior adviser at the liberal Center for American Progress.

"We've lived in this world before," he said. "Insurers spent all their time coming up with the cleverest ways to not provide people coverage. This bill puts us right back in that position."

Berger called it a "cynical ploy" and a "message bill" for senators to point to in a town hall. "There's not a thing in there that prohibits pre-existing condition exclusions," he said. "I want to be clear: This is not in any way a serious bill."

Berger noted, too, that the senators had not gotten involved in the ongoing lawsuit, or pressed the Justice Department to defend pre-existing conditions protections in the law.

Other organizations and advocates said the bill is not as advertised. Brad Woodhouse, executive director of pro-ACA group Protect our Care called it "an election year scam from Senate Republicans desperate to hide from their own record."

Murkowski's Communications Director Karina Borger said the assertions are "incorrect and misleading." The advocates "are assuming the courts are going to strike down every part of the Affordable Care Act being challenged in Texas vs. United States," she said in an email. "This legislation is a bill to specifically ensure health insurance companies would not be allowed to deny an individual coverage or charge extra because of based on health status – two of the central protections contested" in the case.

"If the outcome strikes down provisions that go beyond the scope of this legislation, Senator Murkowski will stand ready to work with her colleagues to find a path forward," Borger said.

"No matter where I go, or who I talk to, healthcare remains a huge concern for Alaskans. And one of the key pieces to care is ensuring that people with pre-existing conditions can purchase insurance," Murkowski said in a statement when she and other senators released the bill. "With the uncertainty of the outcome in the upcoming Texas v. United States case, this legislation is needed now more than ever to give Alaskans, and all Americans, the certainty they need that protections for those with pre-existing conditions will remain intact." The bill, she said, "will make sure no one loses coverage."

Prior to the Affordable Care Act, insurers would sometimes exclude coverage of pre-existing conditions in plans it offered people.Insurers also often excluded coverage of maternity, metal health and substance abuse services — all high-cost medical events.

Around a quarter to one half of Alaskans have some kind of pre-existing condition.

A conservative estimate by the non-profit Kaiser Family Foundation found roughly 22 percent of people under the age of 65 living in the Anchorage metropolitan area have pre-existing conditions health conditions that would make them uninsurable if they tried to buy individual market coverage under the industry practices prior to the ACA. Statewide, the organization estimates a 23 percent uninsurable rate — 107,000 people. "This is a conservative estimate as these surveys do not include sufficient detail on several conditions that would have been declinable before the ACA," the foundation said.

Using the broadest definition of pre-existing conditions that health insurers often used to decide whether to subject people to coverage restrictions, higher rates or outright coverage denials, roughly 50 percent of Alaskans under the age of 65 — 326,400 people — have pre-existing conditions, according to the left-wing Center for American Progress, which extrapolated its numbers from national percentages produced by the federal Department of Health and Human Services.

Murkowski's bill comes as she faces ongoing pressure over her vote against confirming Supreme Court nominee Brett Kavanaugh. Anti-Kavanaugh activists have argued, in part, that he could vote to undermine the ACA and its popular protections for people with pre-existing conditions, based on his prior opinions.