With the death of Supreme Court Justice Ruth Bader Ginsburg, President Donald Trump nominated Amy Coney Barrett to fill the vacancy on the Supreme Court this weekend, which could have a major effect on Americans’ health-care options.
That’s because the fight over the validity of the Affordable Care Act, also known as Obamacare, is heading back to the Supreme Court this fall. The ACA not only brought increased health-care coverage, but it provided a host of patient protections, including barring insurers from denying coverage for preexisting health conditions and allowing children to stay on their parents’ insurance until age 26.
Trump has indicated in the past that he plans to nominate judges who would rule against Obamacare, so this latest Supreme Court vacancy takes on new importance since it could shift the court’s majority on this issue. Barrett has been critical in the past of rulings that have left the ACA in place, according to NBC News.
This issue is also especially prescient since the U.S. is in the middle of the COVID-19 pandemic. So far, there have been about 7 million cases in the U.S. and the death toll is now over 200,000, according to data from Johns Hopkins University.
Going forward, could COVID-19 be considered a preexisting condition?
The short answer is yes, according to experts. "If the ACA is overturned in whole or in part, then insurers could underwrite again. And when they underwrote prior to the ACA, even minor health problems counted as preexisting conditions," says Sara Collins, vice president of health-care coverage and access at the Commonwealth Fund, a foundation that supports independent research on health-care issues.
It’s too early to tell exactly how COVID-19 could be evaluated
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That said, it’s complicated and probably too early to tell how exactly it would play out for patients, says Eric Gascho, vice president of policy and government affairs at the National Health Council.
Even if the ACA is repealed and replaced, it’s unlikely that COVID-19 would be considered a preexisting condition nationwide, Gascho says. "It would very much be up to the individual insurers to determine if they would treat it as such, and I do think that we won’t see all insurers do the same thing," he says.
The decision would also likely be driven by the lasting impacts on those who contract COVID-19. "If COVID-19 is leading to long-term chronic health problems, it would certainly be a candidate," Collins says.
Some people who test positive for COVID-19 are asymptomatic or only have minor symptoms and recover just fine, while others seem to have much longer-lasting issues, Gascho says. The research is still coming in on how COVID-19 affects people and what the long-term health consequences might be. "We just don’t know at this point," Gascho says.
And those who haven’t experienced severe symptoms from COVID-19 wouldn’t necessarily be protected, experts say. "Pre-ACA, plans would ask prospective enrollees questions about medical history when applying for coverage," Gascho says. Presumably, if there were no protections in place anymore, insurers could simply ask consumers, have you ever tested positive for COVID-19? Or they could ask, do you have any lung or heart damage or other health issues as a result of COVID-19?
Pre-ACA, if insurers found out you weren’t honest about your health history after a problem arose, they could rescind your policy, Collins says.
A big concern here is that if the Supreme Court overturns the ACA in the near future and plans are allowed to discriminate against people with preexisting conditions, there may still be a pandemic underway, Gascho says.
"My biggest fear would be that people who are insured in plans that may be likely to rescind their coverage or not renew it wouldn’t seek treatment or wouldn’t go get tested," Gascho says. "That just speaks to one of the many reasons that ACA patient protections either need to be upheld by the courts or need to be replaced by Congress as soon as humanly possible."
It’s a hypothetical debate for now
It is important to keep in mind that this is all hypothetical at this point. Currently, COVID-19 is being treated and funded fully, regardless of a patient’s insurance status, says Jonathan Wiik, a health-care industry expert and author of "Healthcare Revolution: The Patient is the New Payer."
Overturning the ACA and failing to keep patient protections in place would also have much wider consequences than just for those who have contracted COVID-19. About 27% of non-elderly Americans have a preexisting condition, or about 53.8 million Americans, according to the Kaiser Family Foundation.
If preexisting conditions were excluded from coverage, the average out-of-pocket health-care costs for those with arthritis, asthma and high blood pressure would rise by 27% to 39%, The Commonwealth Fund calculated. Those with cancer or diabetes could see their costs triple. People with the highest annual out-of-pocket expenses currently may see increases of over $5,000.
But the U.S. has come a long way since the ACA was enacted and Americans have become used to a a health insurance system where preexisting conditions are covered, Gascho says. It would be difficult for both insurers and the public at large to return to the old way of doing things. That makes him hopeful that we’re starting from a different baseline than before the ACA was put in place.
Both Democrats and Republicans agree that there need to be policies in place to protect people with preexisting conditions. While their approaches and definitions may differ, that could change the outcome for patients even if ACA is overturned. Trump is also expected to sign executive orders that aim to protect Americans with preexisting conditions and prevent surprise medical bills.
"I’m trying to be hopeful. I don’t want to start reacting as if we’re already having to replace the ACA," Gascho says. "I think we’ve been surprised by the court before, so I think we can be pleasantly surprised again."
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