No, the Texas Legislature did not protect Texans with preexisting health conditions last session. But it should.

Across party lines, the public strongly supports the multiple protections for people with preexisting conditions contained in the Affordable Care Act (ACA). The Supreme Court will hear Texas’ lawsuit to strike down the ACA, including its protections for people with preexisting conditions, on November 10.  With such clear and overwhelming public support for the very protections that are now at risk from the lawsuit, politicians have taken note. Everyone running for office claims to support protecting preexisting conditions, regardless of whether that’s backed up by their record.

A new ad in support of Republican members of the Texas House claims that they “passed legislation to protect patients with preexisting conditions from losing access to health insurance.” This claim calls for examination.

First, the only reason that patients with preexisting conditions are at risk of losing access to health coverage is because state leaders in Texas are spearheading the lawsuit to end ACA health coverage for 1 million Texans and wipe strong protections for coverage of preexisting conditions from the books, with no viable plan to meaningfully replace either.

Second, this claim definitely stretches the truth. There were a few bills filed in the last Texas Legislative session that contained many of the ACA’s protections for people with preexisting conditions. Two got hearings in the House Insurance Committee (HB 565 and HB 2114), but neither made it out of committee, much less through the full process to passage.

The bill referenced by the ad, Senate Bill 1940, passed, but it simply doesn’t provide meaningful access to coverage for people with preexisting conditions. SB 1940 gives temporary, two-year authority to the Texas Department of Insurance (TDI) to do two things (spoiler alert: TDI has done neither to date):

  1. If a court strikes down the ACA, SB 1940 would allow TDI to take the initial steps to re-establish the state’s old and inadequate “high risk pool” or something “substantially similar” (explained below), like appointing a board and adopting a plan of operation. But the bill doesn’t fund actual coverage from a high risk pool, which is the hard part, politically. TDI hasn’t taken these initial steps, of course, because it hasn’t needed to; and
  2. TDI can apply for any available federal funding, including by using a “1332 waiver,” which is authorized by the ACA. Fourteen states have already taken this step and lowered premiums for some people. Texas should too. TDI is starting to run some numbers, but is not working on a waiver application. Regardless, this piece has nothing to do with preexisting condition protections.

All politicians who are talking about preexisting conditions want coverage for them – to some degree. There’s a wide range of policy approaches available, from small and inadequate to comprehensive and meaningful. Which approach lawmakers take matters to people with a preexisting condition – which includes more than 1 in 4 Texas adults under age 65 who would have been denied health coverage in the pre-ACA individual market.

Texas’ high-risk pool, as envisioned by SB 1940, is a clearly inadequate approach. Texas old high-risk pool let certain people with preexisting buy coverage at sky-high prices. It was not set up or funded in a way to make it a meaningful coverage option for many Texans. At its peak, it covered only about 28,000 Texans, and premiums were generally twice the market rate. Most people simply couldn’t afford it. It had a lifetime limit on coverage. Some people were subject to a waiting period before benefits kicked in for their preexisting condition – which seems at odds with the pool’s purpose. Texas legislators abolished the high risk pool in 2013 because the ACA ushered in more affordable coverage with no preexisting condition discrimination.

The ACA uses a broad and meaningful approach. Nothing that has been proposed to replace the ACA has come close to its level of protections for people with preexisting conditions. Period. Telling insurers they cannot deny coverage based on preexisting conditions is only the first step in guaranteeing access to coverage for Texans with those conditions. (Note that on top of preexisting condition protections, the ACA also includes sliding-scale subsidies, which ensures 1 million Texans with modest incomes can afford Marketplace coverage.)

The several ACA provisions work together to prohibit discrimination based on preexisting conditions, including

  1. You can’t be denied coverage;
  2. You can’t be charged more based on your health status;
  3. Policies can’t exclude or limit coverage for preexisting conditions;
  4. No lifetime or annual limits on your coverage;
  5. Policies must include an annual cap on your out-of-pocket expenses; and
  6. Policies sold to individuals and small employers have comprehensive coverage, including medications, maternity care, mental health services, and hospitalization. Having an insurance card in your wallet is only meaningful if it covers the health care you will need.

This list is a good benchmark against which to measure candidates’ claims of support for protecting people with preexisting conditions. If a proposal doesn’t include each item aboveand Texas’ old high-risk pool gets nowhere close – then it allows discrimination against people with preexisting conditions that the ACA would not, making it harder for people to get coverage and health care.

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