The Health 202: The Trump administration has given Democrats a generous political gift

Thursday , June 14, 2018 - 8:40 AM

Paige Winfield Cunningham

(c) 2018, The Washington Post.

President Donald Trump has given Democrats the political gift that Capitol Hill Republicans were too smart to grant them last year. And Republicans know all too well it could be disastrous.

Yep, the debate over protecting Americans with pre-existing conditions such as diabetes, asthma or cancer is back in the limelight, with last week’s announcement from the Justice Department that it won’t defend in court the Affordable Care Act’s bans on denying coverage (called “guaranteed issue”) or charging more to these patients (called “community rating”). Texas is leading a group of states making yet another attempt to get these parts of the ACA - and the rest of the law - struck down as unconstitutional.

Dismayed, top Republicans have been moving quickly to put space between themselves and the administration on the matter, anxious to distance themselves from such popular consumer protections.

Sen. Lamar Alexander, R-Tenn., chairman of the Health, Education, Labor and Pensions Committee, called it a “far-fetched” legal argument. Senate Majority Whip John Cornyn, R-Texas, told Axios he hasn’t contemplated “what some creative lawyer might come up with in terms of another idea to sue” over the ACA. Senate Majority Leader Mitch McConnell, R-Ky., said “everybody I know in the Senate - everybody - is in favor of maintaining coverage for pre-existing conditions.”

And Trump’s own health-care chief, Health and Human Services Secretary Alex Azar, sidestepped the question during a committee hearing on Tuesday, saying the Justice Department is taking a “constitutional position . . . not a policy position.”

And some Republican senators didn’t know - or said they didn’t know - about the administration’s move. Per Politico’s Jennifer Haberkorn, tweeting:

“Striking number of GOP Senators still not familiar with Trump DOJ’s request that a federal court strike Obamacare’s preexisting conditions coverage requirement”

Politicians and policymakers are well aware that pre-existing protections poll extremely well with Americans. Seventy percent of respondents to a Kaiser Family Foundation poll last year - including 59 percent of Republicans - said the federal government should continue prohibiting insurers from charging these folks more for coverage.

Now, it’s true that Republicans hotly debated whether to retain the pre-existing condition measures in their bills to repeal and replace Obamacare. But in the end, both the House and Senate health-care bills (which never became law) mostly kept the protections, although the House version opened the door for states to weaken them.

Let’s review those bills for just a minute:

- The House’s American Health Care Act would have allowed states to request waivers from the federal government to charge higher premiums based on health status to people who lacked coverage for at least 63 days in a year. But it fully maintained the ACA’s “guaranteed issue” provision.

- The Senate’s Better Health Care Reconciliation Act also provided waivers for states to opt out of some of the ACA’s insurance regulations, which could weaken coverage for people with pre-existing conditions. But it didn’t allow for states to duck either “guaranteed issue” or “community rating.”

Don’t expect Democrats to acknowledge that, however. Instead, you’ll hear this line from them a lot - that Republicans are just continuing their 2017 efforts to destroy insurance for the country’s most vulnerable patients.

As Democrats seek to regain control of the House and avoid losing ground in the Senate in November, they could hardly be more gleeful about the turn of events. After all, it fits perfectly into their Republicans-want-to-erase-your-health-care story line (some of this played out in Azar’s grilling on Capitol Hill this week as my Post colleague Colby Itkowitz noted).

They’re full throttle ahead with the message that Republicans want to strip insurance protections from people who struggled to gain coverage in pre-ACA years. Wednesday, top House Democrats sent indignant letters to the Justice Department and the Department of Health and Human Services demanding explanations for why the administration isn’t defending the ACA as the law of the land.

“Last week, Republicans renewed their effort to destroy those vital protections, this time trying to fulfill the cruel vision of Trumpcare through the courts,” House Minority Leader Nancy Pelosi, D-Calif., said during a news conference yesterday, where she displayed a photo of President Trump and GOP leaders celebrating in the Rose Garden after the House measure’s passage in May 2017.

Senate Democrats took to the floor in the afternoon to bash the Justice Department announcement and argue that it was just the administration’s latest move to sabotage President Barack Obama’s health-care law.

“A new assault came just days ago in which the president . . . issues an order and says we’re not going to defend the requirement that people with pre-existing conditions can get health care at the same price as everyone else,” said Sen. Jeff Merkley, D-Ore. “What is this called? This is called a sellout, this is called a deception, this is called a whopper.”

Democratic super PAC American Bridge tweeted:

“Wow: @ScottforFlorida just admitted he thinks returning to a time when insurance companies could discriminate based on pre-existing conditions is a good idea.

“We’ve got to reward people for taking care of themselves...It’s no different from what companies have done the past.”

From Sen. Angus King, I-Maine:

“The Affordable Care Act is the law of the land, and helps millions of Americans with preexisting conditions access care - but the Justice Department is refusing to defend it in court. This is cruel, plain and simple - and if the DOJ won’t speak up in defense of the ACA, I will.”

Sen. Bill Nelson, D-Fla.:

“While the Trump administration and Rick Scott heartlessly want to dismantle the healthcare law that guarantees coverage for more than 7 million Floridians with preexisting conditions, I’m fighting to keep these protections so many Floridians rely on.”

The administration’s move is also heightening tensions between Republicans and the White House - and even within the Justice Department. My colleagues Devlin Barrett and Matt Zapotosky reported this week on the resignation of senior official Joel McElvain, who had worked for years under the Obama administration to defend the ACA in court.

And expect to see lots of friend-of-the-court briefs filed Thursday by outside groups worried that the ACA’s pre-existing condition protections could become extinct (although the challenge’s legal road ahead is long and uncertain). Several patient groups, including the American Cancer Society, the American Diabetes Association and the American Heart Association, have banded together to urge the court to preserve the ACA.

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