Critics say pre-existing conditions protections weakened in updated GOP bill

Critics of the updated ObamaCare repeal measure from Sens. Lindsey Graham (R-S.C.) and Bill Cassidy (R-La.) say it goes further than their earlier bill in gutting protections for people with pre-existing conditions.

The two lawmakers say they changed their legislation in a bid to win over holdout senators by giving the states more money and more freedom.

As a result, the new bill would “explicitly allow states to permit insurers to vary premiums” based on pre-existing conditions, so long as insurers don’t discriminate on the basis of sex or genetics, said Timothy Jost, emeritus professor at the Washington and Lee University School of Law.

“Insurers might have to sell coverage to people with preexisting conditions, but it could be very expensive,” Jost, a critic of the bill, wrote in a blog post.

Like the earlier bill, the updated measure would allow states to waive ObamaCare’s essential health benefits, which require insurance plans to cover a range of services like mental health or prescription drugs.

But now, states don’t need to apply to the Trump administration for a waiver. They just have to submit an application explaining how they would provide “adequate and affordable coverage” to people with pre-existing conditions.

There is no clear definition in the bill of what “adequate and affordable” care means. Without such language, the waivers would essentially be a judgment call for Health and Human Services Secretary Tom Price.

The new language could make it tougher for Graham and Cassidy to win over holdout Republicans such as Sen. Lisa Murkowski (Alaska), who has said she won’t support a bill that doesn’t protect people with pre-existing conditions.

Republicans can only afford to lose two votes, and Sens. Rand Paul (R-Ky.) and John McCain (R-Ariz.) have already said they are opposed. Sen. Susan Collins (R-Maine) has said she is leaning against the bill.

Sen. Ted Cruz (R-Texas) also said he doesn’t support the bill, but has been optimistic he can get to “yes.” Cruz has pressed for legislation to lower premium costs.

The bill’s supporters insist it would protect people with pre-existing health conditions.

“The ObamaCare legislation required coverage of pre-existing conditions. This legislation does not change that,” White House Legislative Affairs Director Marc Short said Sunday on CBS’s “Face The Nation.”

But the bill in inconsistent in how it treats pre-existing conditions, and critics argue a rush to move forward on the bill has led to confusion

“The language in the revised Graham-Cassidy bill is convoluted and contradictory,” said Larry Levitt, a senior vice president at the Kaiser Family Foundation.

For example, one section lists all the ObamaCare rules that states can allow insurers to overturn. The prohibition on charging more based on health status isn’t one of them.

Another section says states can waive everything except the prohibition on charging people more based on sex or genetics. This implies that insurers can charge more for people with pre-existing conditions.

“However you read Graham-Cassidy, then, it allows insurers to screw sick people. It’s just not clear exactly how they can screw them,” Nicholas Bagley, a law professor at the University of Michigan, wrote in a blog post.