Facing a new legal threat to the 9-year-old Affordable Care Act, some Wisconsin lawmakers want the state to step in with new patient health care protections they fear could be wiped out if the ACA is overturned.
At stake are key provisions that enabled former President Barack Obama’s health reform law to expand health care coverage to 20 million uninsured Americans in the years since it was implemented.
Losing the federal law risks losing protections for people with a history of illness and bringing back higher insurance costs for women and the elderly, advocates warn. State bills to replace those provisions could help, but might fall short of what the federal law can do.
A federal lawsuit brought by the state of Texas is the latest attack on the health care law following failed repeal efforts in Congress and a 2012 U.S. Supreme Court ruling that upheld the law.
Federal Judge Reed O’Conner ruled this past December that the entire ACA was unconstitutional. O’Conner’s ruling was appealed to the Fifth Circuit Federal Appeals Court, which heard arguments last week.
Regardless of how the appeals court rules, the case is expected to go back to the U.S. Supreme Court, possibly as soon as the 2019-2020 session, and ACA supporters worry that it might not survive this time.
Health care coverage at risk
“It needs to be the first priority of this state legislature in the current session, before it ends, to actually protect all of the Wisconsinites who need health care from the ravages of this potential decision,” Citizen Action of Wisconsin Executive Director Robert Kraig said in a conference call with lawmakers and media last week. His organization lobbies for expanded health care coverage, particularly for the poor and uninsured.
A decision upholding the lower court ruling “would be as devastating as the outright repeal of the Affordable Care Act that was attempted and failed last year and which the voters rebuked overwhelmingly,” he added.
Topping the list of provisions under threat are the law’s guarantee that patients with preexisting health conditions can still get health insurance coverage and won’t face higher insurance premiums.
Also at risk if the law disappears are protections against annual and lifetime limits on how much insurers will pay to cover patients’ illness and treatment.
Eliminating guaranteed coverage for people with preexisting conditions alone could affect an estimated 852,000 to 2.4 million Wisconsin residents, said Kraig. Citing national data calculated by the Center for American Progress, he warned annual health insurance premiums could rise $4,000 for people with asthma, $17,000 for pregnant mothers and more than $140,000 for patients with certain forms of cancer.
Another provision at risk, Kraig said, would be free preventive care, including annual physical checkups, affecting as many as 2.8 million Wisconsin residents.
And because the ACA requires covering mental and physical health equally, mental health patients — including those being treated for substance abuse — could wind up with weaker coverage. Patients 60 years or older could pay up to an estimated $4,000 more a year when buying insurance on the individual market, Kraig added.
In addition, young adults between the ages of 18 and 26 could lose the guaranteed right to be included on their parents’ insurance, State Rep. Jodi Emerson (D-Eau Claire) pointed out to reporters during last week’s conference call.
“This shouldn’t be a partisan issue,” State Sen. Chris Larson (D-Milwaukee) said. “Everybody gets sick. I’m not aware of any disease that targets one party over another. This is going to hit red parts of the state as well as blue parts if there is no coverage. The only people, quite frankly, who would be protected is the health insurance industry.”
Under Republicans Gov. Scott Walker and Attorney General Brad Schimel, Wisconsin had been one of the states joining Texas in the anti-ACA lawsuit. Democratic Attorney General Josh Kaul, who defeated Schimel last November, withdrew the state from the suit earlier this year.
Assembly Republicans at the start of this year’s legislative session introduced AB-1, which would guarantee coverage of preexisting conditions if the ACA is repealed; it passed the lower house 76-19 in January and is now in the Senate Health and Human Services Committee. Committee Chair Sen. Patrick Testin (R-Stevens Point) did not respond this week to inquiries about the status of the legislation.
Although some Democratic lawmakers supported the bill in the Assembly, others rejected it, seeking instead a broader bill covering the full range of consumer protections in the Affordable Care Act. In response, Sen. Jon Erpenbach (D-West Point) introduced SB-37 in February, calling it “a comprehensive piece of legislation that would take all of the federal protections in the ACA and put them into Wisconsin law.” That measure is before the same Senate committee.
William Parke-Sutherland, health policy engagement coordinator at Kids Forward, a Wisconsin-based children advocacy group, said there are limits in what state laws can do to replicate the ACA’s preexisting condition protections.
Employers’ self-insured health plans are governed by federal law and are precluded from regulation at the state level, he said. The competing state bills mention self-insured plans, but either, if passed, could only regulate self-insured governmental plans. “Roughly half of the plans offered by private sector employers are self-insured,” Parke-Sutherland said, thereby making them beyond the reach of either state bill.
States can’t replace ACA in full
The ACA’s system of subsidies makes health plans purchased through the act’s health insurance exchanges more affordable, but that presents yet another limitation.
“We can’t offer the level of subsidy to ensure that, if insurance companies have to sell anyone an insurance plan regardless of their health status, those would be affordable,” Parke-Sutherland said. “The ACA made changes that require both the breadth and the authority of the federal government. There really isn’t a way that the states can replace the ACA — it has to happen at the federal level.”
Beyond these specific consumer protections, several other ACA provisions could be threatened by the law’s abolition. Just one example are the law’s public health provisions.
“When you go to a restaurant and you know how many calories are in the meal that you buy — that’s because of the ACA,” Parke-Sutherland said. “The ACA touches everyone in the country.”