The same day the Trump administration reaffirmed its support of a lawsuit that would invalidate all of the Affordable Care Act, Joe Biden sharply warned that the suit endangers millions of Americans.
The presumptive Democratic presidential nominee said the law is even more important now, more than a decade after it was enacted, as the COVID-19 epidemic sweeps the U.S. The virus has killed more than 130,000, and Biden noted that some who survive may have long-lasting health problems.
His speech in the battleground state of Pennsylvania focused on a legal challenge headed to the Supreme Court and the fallout if the court upholds a 2018 U.S. District Court decision that struck down the entire ACA, including preexisting condition protections that bar insurers from rejecting people with medical problems or charging them more.
“And perhaps most cruelly of all, if Donald Trump has his way, complications from COVID-19 could become a new preexisting condition,” Biden said.
The Trump administration has supported the challenge. A decision from the Supreme Court is expected next year, after the November presidential election.
But would a decision against the health law affect COVID-19 patients in the way Biden described?
We decided to check because it's likely to come up a lot in the presidential electioneering. We reached out to the Biden campaign to find out the basis for his statement. A campaign spokesperson responded by reiterating the points made by the former vice president in his speech and sharing various news stories about COVID-19 and the preexisting condition coverage issue.
Several law and health policy experts noted that Biden is on fairly firm ground, though the issue — like many others in health care — is complicated.
First, A little history
Before the ACA went into effect in 2014, insurers on the private market could reject applicants for coverage if they had any number of medical conditions, such as cancer, depression, heart disease — even high blood pressure, acne or plantar fasciitis. Consumers had to fill out forms listing their medical conditions when applying for coverage. An estimated 54 million Americans have a preexisting condition that could have led to a denial under pre-ACA rules, researchers estimate.
Also, at the time, some consumers had coverage cancelled retroactively once they fell ill with a serious or costly disease, as insurers would then comb through years of medical records looking for anything the consumer had failed to report as preexisting, even if it seemed to have little or nothing to do with the patient's current medical concern.
Those rejections and cancellations mainly affected people who bought their own coverage, not those who got insurance through their jobs.
Job-based coverage, which is the main way most insured people get their plans, had some protections prior to the passage of the ACA. For example, the federal Health Insurance Portability and Accountability Act of 1996 said people who held health insurance continuously for at least a year could not face preexisting condition limits when they enrolled in a new employer plan, as long as they didn't go uninsured for more than 63 days.
Those who didn't meet that yearlong coverage requirement or went uninsured between jobs could find their medical conditions excluded for up to a year in a new group plan.
Before the ACA, insurers broadly defined preexisting conditions. Many included any condition for which a patient had received treatment, or even undiagnosed conditions for which a reasonable person should have sought treatment.
The ACA changed that. Among other things, it barred insurers from rejecting applicants based on their health, excluding coverage of preexisting medical conditions and charging sick people more than healthier ones. It also ended annual or lifetime dollar limits on coverage and said employers that offer insurance can't make new workers wait more than 90 days for coverage to kick in.
Could COVID-19 become a preexisting condition?
Biden's comment raises the question of whether COVID-19 would be considered a preexisting condition in a future without the sweeping health law on the books.
Because the virus is so new, there's no definitive answer on its long-term health effects.
But media reports note hospitals and physician groups are finding evidence that some recovered COVID patients suffer from lung damage, blood clots, neurological conditions, strokes or fatigue.
Researchers are now starting to follow patients to track long-term effects.
Given insurers' history, it's certainly reasonable to assume they would put what are now cropping up as potential COVID complications in the preexisting-condition category, said Sabrina Corlette, who studies the individual insurance market as co-director of the Center on Health Insurance Reforms at Georgetown University.
"There is a real concern that if those preexisting condition protections are overruled or taken down by the Supreme Court, people who have COVID-19 could be medically underwritten, charged more or be denied a policy," said Corlette.
That is possible, said Joe Antos, resident scholar in health policy at the conservative American Enterprise Institute. But many of the people most likely to suffer complications from the coronavirus likely already had conditions like diabetes, asthma or heart disease that would already have put them in danger of being rejected for coverage under pre-ACA business practices, he added.
In other words, COVID-19 could simply find a place on a long list of other conditions that could disqualify consumers from obtaining insurance.
And even if the high court tossed out the ACA, insurers might choose to keep offering coverage to people with health problems, say some analysts, including Antos.
But this take triggers skepticism.
"Insurance companies have an obligation to shareholders, and that obligation is to maximize profits," Corlette said. "They don't do that by covering a lot of sick people when competitors are not doing it."
The biggest unknown
Just how would Congress and the president react if the ACA is struck down?
Under a Biden presidency, coupled with Democrats holding the House and possibly winning the Senate, the ACA would definitely be replaced, the experts all agreed.
Under a second-term Trump administration, Republicans would face a dilemma because — even though the party has called for the law's repeal since its enactment -— they have been unable to agree on how to replace it. Yet polls have consistently shown that parts of the law, especially the preexisting condition protections, are very popular with a wide swath of voters.
"They don't want to come across as coming up hard against people who have health conditions," said Antos.
Private practice attorney Christopher Condeluci, who served as tax and benefit counsel to the Senate Finance Committee when the ACA was drafted, agreed. He thinks Congress or the president would act to save the preexisting condition protections at least.
But how to do so is problematic. That provision is intricately tied with many other parts of the ACA, those aimed at getting as many healthy people to enroll as possible in order to spread costs out among the many, rather than the few.
The ACA did that partly by requiring most Americans to carry insurance coverage — the provision at the heart of the Texas lawsuit seeking to overturn the legislation. Restoring that requirement might be tricky, so the path forward for a split Congress or a second-term Trump presidency to come up with a solution quickly — or at all — if the Supreme Court tosses the entire law is a difficult one.
Biden said that if Trump had his way, COVID complications could become a preexisting condition. He said this while discussing what might happen if the ACA is overturned by the Supreme Court. Though the statement can't be definitively proven, there's a lot of evidence backing it up.
First, some patients are showing at least short-term aftereffects of COVID-19, some of which could be costly. Some may prove long-term.
Second, insurers dislike costly medical conditions. Their business model is designed to have enough healthy enrollees to offset those with costly conditions. Before the ACA, they did that by rejecting people with medical conditions, charging them more or excluding coverage for those conditions. Some also temporarily delayed coverage for specific conditions in group plans offered by employers. Without the ACA, no federal law would prevent them from returning to these practices when selling plans on the individual market.
We rate Biden's statement Mostly True.
This article was reprinted from khn.org with permission from the Henry J. Kaiser Family Foundation. Kaiser Health News, an editorially independent news service, is a program of the Kaiser Family Foundation, a nonpartisan health care policy research organization unaffiliated with Kaiser Permanente.