WASHINGTON (AP) --
The Trump administration’s latest move against “Obamacare” could jeopardize
legal protections on pre-existing medical conditions for millions of people
with employer coverage, particularly workers in small businesses, say law
and insurance experts.
At issue is
Attorney General Jeff Sessions’ recent decision that the Justice Department
will no longer defend key parts of the Obama-era Affordable Care Act in
court. That includes the law’s unpopular requirement to carry health
insurance, but also widely supported provisions that protect people with
pre-existing medical conditions and limit what insurers can charge older,
sicker customers.
Two independent
experts said Wednesday that the administration appears to be taking aim at
provisions of the ACA that protect people in employer plans, not only the
smaller pool of consumers who buy a policy directly from an insurer. The new
Trump administration position was outlined last week in a legal brief filed
by the Justice Department in a Texas case challenging the Obama health law.
Workers “could face
the prospect of insurance that doesn’t cover their pre-existing conditions
when they enroll in a plan with a new employer,” said Larry Levitt of the
nonpartisan Kaiser Family Foundation.
University of
Michigan law professor Nicholas Bagley said the administration does not
appear to have thought through all the consequences of moving against one
provision of a health law that has many complicated interlocking parts.
“The lack of care
on the brief is jaw-dropping,” said Bagley, who supports the Obama health
law but considers himself a “free agent” critic of both sides. “There is no
question that the Trump administration has to clarify what the scope of its
injunction would be and grapple with the consequences of mowing down parts
of the ACA.
“For someone with a
pre-existing condition thinking about switching jobs, the answer to the
question could make a life-changing difference,” added Bagley.
Both Bagley and
Levitt said their questions about the administration’s intentions arose from
language in the Justice Department brief that specifically singles out
sections of the health law that apply to employer plans. The ACA
strengthened previous protections already in federal law that limited the
circumstances and length of time under which an employer could exclude
coverage for a worker’s pre-existing health problems.
The Trump
administration had no immediate rebuttal to the issues raised by the two
experts.
Instead, the Health
and Human Services Department pointed to comments earlier in the week by
Secretary Alex Azar, who told senators that the Justice Department brief was
a legal and constitutional argument, not a policy statement.
“We share the view
of working to ensure that individuals with pre-existing conditions can have
access to affordable health insurance,” Azar said. “The president has always
shared that and we look forward to working with Congress under all
circumstances towards achieving that.”
Nearly 160 million
workers and family members have coverage through employers, although the
number covered by small employers is much smaller.
A health policy
expert with a business organization that represents large employers said he
doubted there would be much of an impact on major companies, which are
better able to pool risk and have long been accustomed to covering all
employees regardless of health issues.
"There will not be
a change with anyone who is with a very large employer,” said James Gelfand
of the ERISA Industry Committee, as the group is known. ERISA is the name of
a federal law that governs employee benefits for big companies.
However, Gelfand
said the impact could “spill over” to small businesses.
Separately, senior
Republicans in Congress are wasting no time in trying to distance themselves
from any effort by the administration to undermine popular protections for
their constituents. Democrats are accusing Republicans of yet another effort
to “sabotage” coverage, and plan to take the issue into the fall midterm
elections.
“No American should
be denied health coverage based on their pre-existing medical conditions,”
Sen. Orrin Hatch, R-Utah, said Wednesday. Hatch chairs the Finance
Committee, which oversees health care and tax law. He supported repeal of
the ACA’s insurance mandate, but draws a line on pre-existing conditions.
“Everybody I know
in the Senate -- everybody -- is in favor of maintaining coverage for
pre-existing conditions,” said Majority Leader Mitch McConnell, R-Ky,
earlier in the week. “There’s no difference of opinion about that
whatsoever.”
Added Sen. Lamar
Alexander, R-Tenn., “There’s no way Congress is going to repeal protections
for people with pre-existing conditions who want to buy health insurance.
The Justice Department argument in the Texas case is as far-fetched as any
I’ve ever heard.”
The lawsuit, filed
in February by Texas and other GOP-led states, is in many ways a replay of
the politically divided litigation that ended with the Supreme Court
upholding the health care overhaul in 2012. In this case, California is
leading a group of Democrat-led states in defending the law.
The Trump
administration’s stance is a rare departure from the Justice Department’s
practice of defending federal laws in court.