GOP’s shaky claim to fram­ing pop­u­lar parts of ACA

The Washington Post Sunday - - NEWS - GLENN KESSLER

“Yes, they are ex­pect­ing to still be in there, pre­ex­ist­ing con­di­tions and older chil­dren, young adults up to the age of 26. Ac­tu­ally, pre­ex­ist­ing con­di­tions and 26year­olds were two Repub­li­can pro­vi­sions which made it into the [Oba­macare] bill.” — Rep. Mar­sha Black­burn (R-Tenn.), re­marks at a Feb. 21 town hall in Fairview, Tenn.

Among the most pop­u­lar parts of the Af­ford­able Care Act, passed in 2010 with zero votes from Repub­li­can law­mak­ers, are pro­vi­sions that pro­hibit in­sur­ance com­pa­nies from deny­ing cov­er­age based on a pre­ex­ist­ing con­di­tion and al­low­ing young adults up to the age of 26 to be car­ried on their par­ents’ health plan. The House Repub­li­can re­place­ment for the ACA un­veiled last week re­tains both pro­vi­sions.

Yet we were sur­prised when we saw that, in re­sponse to a ques­tion about whether these pro­vi­sions would be in the re­place­ment, Black­burn told peo­ple in her dis­trict that these were ac­tu­ally “two Repub­li­can pro­vi­sions which made it into the [Oba­macare] bill.”

Could this be pos­si­ble?

The Facts

The ACA was crafted through many months of com­mit­tee hear­ings and de­bates in 2009, in both the House and the Se­nate, and un­tan­gling who was re­spon­si­ble for what is a dif­fi­cult chore. But we checked with a num­ber of con­gres­sional aides and other ex­perts who were in­volved in the process at the time and could find few, if any, Repub­li­can fin­ger­prints on these two pro­vi­sions in the leg­isla­tive process. Pre­ex­ist­ing con­di­tions: Bar­ring in­sur­ance com­pa­nies from deny­ing cov­er­age based on pre­ex­ist­ing med­i­cal con­di­tions had long been a holy grail of health-care re­tool­ing. Chris Jen­nings, a health-care con­sul­tant who worked for Pres­i­dents Bill Clin­ton and Barack Obama, said the ques­tion of how to achieve this dates back to the Health In­sur­ance Porta­bil­ity and Ac­count­abil­ity Act of 1996, spon­sored by Sens. Ed­ward M. Kennedy (D-Mass.) and Nancy Kasse­baum (R-Kan.). That law re­quired in­sur­ance com­pa­nies to nul­lify pre-ex­ist­ing-con­di­tion ex­clu­sions for peo­ple who had con­tin­u­ous cov­er­age and were join­ing a group health plan at work. But it did not of­fer any pro­tec­tion if some­one moved from a plan in the in­di­vid­ual mar­ket to an­other plan, or from an em­ployer plan to the in­di­vid­ual mar­ket.

Jen­nings said the Clin­ton ad­min­is­tra­tion and Congress were able to “en­hance pro­tec­tions (in a bi­par­ti­san fash­ion) for peo­ple go­ing from in­sur­ance mar­ket to in­sur­ance mar­ket, but we could not elim­i­nate the un­der­writ­ing prac­tice al­to­gether be­cause we could not re­quire a health plan to in­sure a ‘house on fire’ pa­tient un­less we had near or close to uni­ver­sal cov­er­age.” Uni­ver­sal or near-uni­ver­sal cov­er­age was the key, be­cause then the pool of peo­ple in the in­sur­ance mar­ket would be broad enough that in­sur­ance com­pa­nies could cover sicker peo­ple with­out in­creas­ing pre­mi­ums.

When in­di­vid­ual states tried to in­sist on guar­an­teed cov­er­age, pre­mi­ums sky­rock­eted. Many states also es­tab­lished high-risk pools to help cover peo­ple with pre­ex­ist­ing con­di­tions, but they ran up losses, ex­cluded cov­er­age for pre­ex­ist­ing con­di­tions (of­ten for six to 12 months) and im­posed life­time lim­its on cov­er­age.

In 2006, Mas­sachusetts Gov. Mitt Rom­ney (R) en­acted a health-care plan that in­cluded an in­di­vid­ual man­date to buy in­sur­ance, thereby ex­pand­ing the pool of peo­ple buy­ing in­sur­ance. The Mas­sachusetts law re­quired cov­er­age of pre­ex­ist­ing con­di­tions, but even it did limit cov­er­age of some con­di­tions to six months.

“Pol­i­cy­mak­ers of both par­ties knew what would be nec­es­sary to get the job done. This is best ex­em­pli­fied sub­se­quently by the Rom­ney Mas­sachusetts pol­icy (that had the sub­si­dies/man­date pil­lars) in or­der to get the pre­ex­ist­ing con­di­tion ex­clu­sions elim­i­nated,” Jen­nings said.

The in­di­vid­ual-man­date ap­proach is what emerged in the bills crafted by Democrats in the House and the Se­nate. In the House, the Af­ford­able Health Care for Amer­ica Act (HR 3962) was in­tro­duced on Oct. 29, 2009, and then passed by the House on Nov. 7, 2009. In the Se­nate, Kennedy was a fierce pro­po­nent of end­ing the pre­ex­ist­ing cov­er­age ban. The fi­nal ver­sion of the ACA en­acted the ban on bar­ring cov­er­age of pre­ex­ist­ing con­di­tions, aided by the cre­ation of a tem­po­rary, na­tional high-risk pool that served as a bridge from 2010 to 2014, when the Oba­macare mar­kets would be op­er­a­tional.

But the Repub­li­can al­ter­na­tive did not of­fer cov­er­age for pre­ex­ist­ing con­di­tions. On Nov. 6, 2009, in an in­ter­view on C-SPAN, Black­burn was specif­i­cally asked about that crit­i­cism — and she touted in­stead an ex­pan­sion of high-risk pools. “There is a way to do that and ad­dress that and bring peo­ple into those high-risk pools,” she said.

The Repub­li­can al­ter­na­tive to the House bill would have al­lo­cated $24 bil­lion over 10 years to fund high-risk pools for peo­ple with chronic ill­nesses, but a Con­gres­sional Bud­get Of­fice anal­y­sis of the pro­posal found it would have had a min­i­mal im­pact on re­duc­ing the num­ber of unin­sured Amer­i­cans. Un­der­26 pro­vi­sion: Be­fore the ACA, a num­ber of states had a sim­i­lar pol­icy, but it was not as broad or con­sis­tently ap­plied. So Demo­cratic pol­i­cy­mak­ers sought ways to add young adults to the in­sured rolls, as many lost cov­er­age at the age of 19, when they grad­u­ated from high school or when they grad­u­ated from col­lege.

Obama pushed for the idea early on, list­ing it in speeches as a key el­e­ment of his plan. Rep. Chris Van Hollen (D-Md.), now a mem­ber of the Se­nate, also led a cam­paign start­ing in Oc­to­ber 2009, with other House Democrats, to in­clude it in the emerg­ing House bill.

Chiq­uita Brooks-LaSure, a staff mem­ber at the time on the House Ways and Means Com­mit­tee, re­called that an ad­di­tional mo­ti­va­tion for adding the pro­vi­sion was to demon­strate ben­e­fits from the law be­fore the ex­changes went into op­er­a­tion later. The un­der-26 pro­vi­sion went into ef­fect Sept. 23, 2010.

“There was cer­tainly no Repub­li­can push­ing ei­ther pro­vi­sion, but Se­na­tors [Charles E.] Grass­ley [(R-Iowa)] and [Olympia J.] Snowe [(R-Maine)], who were the only ones work­ing with us in the Se­nate, ac­cepted them as must-do in the end,” re­called a for­mer Se­nate aide.

Black­burn’s staff sug­gested that Black­burn co-spon­sored leg­is­la­tion in Novem­ber 2009 that in­cluded both pro­vi­sions. But that par­tic­u­lar bill never came to a vote — and records show Black­burn signed on as a co-spon­sor in June 2010 — af­ter the Af­ford­able Care Act was signed into law. There were a hand­ful of other GOP bills with these sorts of pro­vi­sions, which also did not go far, as well as rhetor­i­cal sup­port by some Repub­li­cans.

The Pinoc­chio Test

There is no ev­i­dence that ei­ther of these pop­u­lar el­e­ments of the ACA “were Repub­li­can pro­vi­sions” that made it into the fi­nal leg­is­la­tion, as Black­burn claims. In fact, Black­burn is on record as pro­mot­ing the con­cept of fed­er­ally funded “high-risk pools” even on the eve of the House vote for the Demo­cratic bill that in­cluded a ro­bust pro­vi­sion to bar in­sur­ance com­pa­nies from re­fus­ing to cover pre­ex­ist­ing con­di­tions. Sim­i­larly, the Obama White House and House Democrats were the prime movers of the un­der-26 pro­vi­sion.

Black­burn earns Four Pinoc­chios.


Rep. Mar­sha Black­burn (R-Tenn.) takes ques­tions at a Feb. 21 town hall in her home state dur­ing which she falsely said that the GOP crafted the ACA’s un­der-26 and pre­ex­ist­ing con­di­tions pro­vi­sions.

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