Another clunker: John Cornyn’s ad on preexisting conditions

In a new campaign ad, Cornyn says one of the law’s central features, its guarantee that insurers must sell plans to any patients with preexisting conditions, “is something we all agree should be covered.”

Cornyn is a fixture of Texas and national politics and the No. 2 Republican in Senate leadership. His lead in this year’s race is not slim, and his ad is more carefully worded than the rest.

But Cornyn continues to oppose the Affordable Care Act, and his campaign would not say whether he backs a Republican lawsuit seeking to strike down the entire law at the Supreme Court.

If the ACA were to fall, the legislation Cornyn proposes as a replacement to cover those with preexisting conditions says “nothing … shall be construed to restrict the amount that an employer or individual may be charged for coverage under a group health plan.” Charge them whatever price, it says.

Experts say this arrangement would leave tens of millions of Americans with preexisting conditions at risk and possibly facing unaffordable rates for insurance. That’s why we’ve previously described the GOP proposal Cornyn supports as a “car without an engine.”

The Facts

The Affordable Care Act, President Barack Obama’s signature health-care legislation, has long been a target for Republicans. Cornyn has voted numerous times to repeal or replace it since its enactment in 2010. This is the third presidential election cycle in which the fate of the law is a top issue for candidates and voters.

Efforts to repeal “Obamacare” in Congress have fallen short for lack of agreement among Republicans on how best to rewrite it, most notably in 2017 and 2018, when the GOP controlled both chambers of Congress and the White House. The Supreme Court has upheld the act twice in the face of challenges from conservative groups and is scheduled to hear arguments in the latest case (California v. Texas) on Nov. 10.

As coronavirus cases reached a new high in the United States, the Trump administration filed a legal brief on June 25 asking the Supreme Court to strike down the entire law, joining with a group of GOP state attorneys general who argue the ACA is unconstitutional. About 20 million people could lose their health insurance amid a pandemic if the GOP effort succeeds.

The lawsuit comes from Cornyn’s home state, led by Texas Attorney General Ken Paxton (R). The federal judge who initially ruled to strike down the law in this case is a former Cornyn aide sitting in Texas.

“Asked if he wanted to see the lawsuit succeed, Cornyn did not say,” according to an article last month in the Texas Tribune. We asked the Cornyn campaign the same question and did not get an answer.

On his campaign website, Cornyn says, “Our health care system is broken, but Obamacare — with its unattainable costs, job-killing policies and intrusion between a patient and their doctor — isn’t the answer.”

Senate Minority Leader Charles E. Schumer (D-N.Y.) last month forced a vote on a bill that would have prevented the Justice Department from arguing to strike down the ACA in court. Cornyn voted against it, while some Republicans facing dicey reelection prospects voted in favor.

Before the ACA, insurance companies could factor in a person’s health status while setting premiums, a practice that sometimes made coverage unaffordable or unavailable for those in need of expensive treatment or facing a serious illness such as cancer.

The Democratic health-care law prohibited this practice through two provisions: “guaranteed issue,” which means insurance companies must sell insurance to anyone who wants it, and “community rating,” which means people in the same age group and geographic area who buy similar insurance pay similar prices. The changes together made insurance prices accessible for many patients facing serious ailments or lesser health conditions.

Polls show most Americans support guaranteeing coverage for preexisting conditions. An estimated 102 million people in the United States have one, according to a 2018 report by the consulting group Avalere. On Jan. 5, 2017, days before the end of the Obama administration, the Department of Health and Human Services said 61 million to 133 million non-elderly people have a preexisting condition. That means one-quarter to half the population under 55.

“Americans between ages 55 and 64 are particularly at risk: 49 to 84 percent of people in this age range — up to 31 million people — have some type of preexisting condition,” according to this analysis. Some of the most common conditions identified in the study were high blood pressure, behavioral health disorders, high cholesterol, asthma or chronic lung disease, heart conditions, diabetes and cancer.

The Kaiser Family Foundation, a nonpartisan health-care research center, says 54 million “non-elderly adults had a preexisting condition before the pandemic that would have led to a denial of health insurance in the individual market before the ACA, and more than 100 million had a condition that would have likely led to higher premiums or coverage limitations.”

Cornyn recently tweeted, “The left, including Joe Biden in Tuesday’s debate, overstates the problem of preexisting conditions to justify political control of health care.” He linked to a Wall Street Journal editorial (“Pre-Existing Condition Fiction”), which said “a mere 2.7% of an estimated roughly 130 million people with preexisting conditions gained access to health insurance through the Affordable Care Act.”

Various Republican proposals now in Congress would continue to mandate that insurance companies sell plans to anyone. But experts say they fall short in terms of controlling prices and effectively would let insurers curtail benefits or charge exorbitant rates to sicker patients.

The Cornyn campaign website says the third-term senator “supports a plan that protects those with preexisting conditions” but doesn’t mention any legislation that would accomplish this.

In response to our questions, a spokesman for the Cornyn campaign mentioned the Better Care Reconciliation Act of 2017, one of the unsuccessful proposals to repeal and replace the ACA.

It would have weakened legal protections for patients with preexisting conditions because insurers selling plans on the individual market would have been able to deny coverage or charge more based on health status.

The bill would have allowed states to waive limits for annual out-of-pocket expenses, and it would have allowed waivers for “single-risk pools.” If this had been waived, certain plans could have become much more expensive for people with preexisting conditions, because insurers would have been able to increase premiums at a faster rate for higher-risk individuals. (Here’s our full fact check on that bill.)

Cornyn also co-sponsors the Protect Act, introduced by Sen. Thom Tillis (R-N.C.) in 2019, his campaign spokesman noted. It replicates some parts of the ACA coverage guarantee but also creates a loophole that concerns experts.

“The Protect Act inserts old HIPAA nondiscrimination language that prevents employers from varying worker premium contributions based on health status,” Karen Pollitz, a senior fellow at Kaiser, previously told us, referring to an older health-care law, the Health Insurance Portability and Accountability Act. “But the Protect Act also includes the old rule of construction that says nothing limits what the insurance company can charge the employer or individual.”

Pollitz said the “community rating” language in the ACA provides clearer protections in this area. The Protect Act says “nothing … shall be construed to restrict the amount that an employer or individual may be charged for coverage under a group health plan.”

Cornyn campaign spokesman Travis Considine described this change as a fail-safe measure in case the Supreme Court invalidates the entire ACA.

“That was done to ensure that if the ACA were invalidated by SCOTUS, those protections would still be in place (because they’re written into HIPAA),” which is not under legal challenge, Considine wrote in an email. If the court accepted the GOP argument that the entire Affordable Care Act is unconstitutional, “the preexisting conditions fall unless enacted outside of the ACA (as the Protect Act does).”

But it wouldn’t be much of a shield for sick or high-risk patients if insurers could once again charge them higher prices, experts said, as routinely happened before the ACA’s enactment in 2010.

“If you allow insurers to charge higher premiums to people who are sick, they can simply charge people with preexisting conditions astronomical rates,” Larry Levitt, Kaiser’s executive vice president for health policy, wrote in an email. “If you don’t have benefit requirements, insurers can exclude benefits that people with preexisting conditions need.”

He added that “comprehensive protections for people with preexisting conditions without some mechanism to get people to buy insurance when they’re healthy would result in a premium death spiral.”

“Maintaining a stable insurance market requires an individual mandate or substantial premium subsidies to encourage healthy people to sign up, which means government spending,” Levitt wrote. “There are trade-offs in all of this. The ACA provides extensive protections for people with preexisting conditions, but that meant higher premiums for people who are young and healthy and higher government spending.”

Sarah Lueck, a senior policy analyst at the left-leaning Center on Budget and Policy Priorities, wrote in an analysis that the Protect Act “would reinstate three protections at risk in the Texas case — prohibiting insurers from denying applicants based on preexisting conditions, charging higher premiums due to a person’s health status, and excluding preexisting conditions from coverage.”

“But it would leave many others on the cutting room floor,” she wrote, because insurers would be able to exclude coverage of benefits such as maternity care, mental health and substance-use treatment; set annual and lifetime limits on insurance payouts; and charge older patients more than younger patients at greater levels than the ACA allows, among other changes.

Considine wrote, “Sen. Cornyn supports a system that protects those with preexisting conditions, lowers the cost of prescription drugs by increasing generics, increases competition by allowing cross-state health insurance, lowers out of pocket costs for seniors on Medicare [and] reestablishes the privacy of the doctor-patient relationship.”

The Pinocchio Test

Cornyn is not as exuberant as the Republican senators who previously got Four Pinocchios when he affirms his support for covering preexisting conditions. He says only that there’s agreement on covering them, and then a narrator says his plan would do so.

Contrast that with Sen. Martha McSally (R-Ariz.), who said in an ad she would “always” watch out for patients with preexisting conditions despite a record of voting to end the law that guarantees those protections. Consider the ad from Sen. Steve Daines (R-Mont.), who says he “will protect Montanans with preexisting conditions” despite taking votes to dismantle the law as his spokesman expresses support for the GOP lawsuit.

Cornyn has been silent on the lawsuit, but his Senate record speaks for itself: numerous votes to repeal the Affordable Care Act or replace it with weaker tea; a pair of proposals that could saddle sick patients with higher, and possibly prohibitive, costs; and voting against a measure just last month that would have barred the Justice Department from arguing to strike down the entire health-care law in court.

Cornyn earns Four Pinocchios.

Four Pinocchios

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