The latest Trumpcare bill has a nasty surprise for people with preexisting conditions

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Sens. Lindsey Graham (R-SC) and Bill Cassidy (R-LA), the leading sponsors of a massive overhaul of America’s health care system that Senate Republicans hope to pass this week, released a significant revision of their bill Sunday night.

In an apparent attempt to buy undecided Sen. Lisa Murkowski’s (R-AK) vote, the latest version of the bill includes additional funding for Alaska. It also includes some unusual provisions that seem designed to give the impression that the bill protects people with preexisting conditions. In reality, the opposite is true.

To explain, although Graham and Cassidy’s bill does not protect people with preexisting conditions, Cassidy has tried to claim that it does by pointing to a largely cosmetic requirement a previous draft of the bill imposed on states.

Cassidy claimed that this provision requires states to “establish there is adequate and affordable coverage for those with pre-existing conditions.” But it actually did no such thing. Instead, it merely required states that wanted to waive legal protections for people with preexisting conditions to submit an application explaining “how the State intends to maintain access to adequate and affordable health insurance coverage for individuals with pre-existing conditions.” After this application is submitted, the bill did nothing to actually require states to execute the plan they described in their application.

The new version of the bill includes a similar provision, with one word changed. Now, the bill provides that states should submit an application including “a description of how the State shall maintain access to adequate and affordable health insurance for individuals with pre-existing conditions.”

The word “shall” is stronger than the words “intends to,” so a casual reader of the bill might come away with the impression that the revised bill has stronger protections for people with preexisting conditions than the previous draft. But that casual reader would be mistaken. The only thing that a state “shall” do under this latest version is put words on paper. The new bill also contains no mechanism to make sure that states comply with their own plans. Nor does it require them to come up with plans that will actually work.

It’s worth noting that this toothless “shall” provision appears on page 11 of the revised bill, so it is one of the first things an uncertain senator might encounter while trying to decide whether to vote “yes” or “no.” If that senator reads ahead to pages 144 and 145, however, they will discover a very different provision that has very bad news for people with preexisting conditions. That provision provides that certain health care-related rules “shall be established by the State.” It then states that the following shall be left up to each state to determine:

The criteria by which, and the degree to which, a health insurance issuer of [coverage funded by the Graham-Cassidy bill] may vary premium rates for such coverage, except that in no case may an insurer vary premium rates on the basis of sex or on the basis of genetic information.

To translate this language a bit, under the Affordable Care Act, insurers in the Obamacare exchanges may neither refuse to cover someone with a preexisting condition nor charge someone extra because of their health condition. The Graham-Cassidy replaces this regime with one where each state gets to determine when an insurer “may vary premium rates.” So if Texas decides that insurers can jack up your premiums when you are diagnosed with cancer, or if Wisconsin decides that anyone with hay fever can be charged triple premiums, then anything goes so long as the state is cool with it.

Obamacare’s protections for people with preexisting conditions effectively cease to exist in states that decide to get rid of them.

It is very odd, to say the least, that Graham and Cassidy would stick one part of the bill’s provisions governing the individual insurance market close to the beginning of the bill. Then stick the rest of those provisions about 130 pages later at the very end of the bill. Typically, legislative drafters like to stick related provisions of a bill close together so that it is easy to tell how the bill’s interlocking provisions operate together.

But Graham and Cassidy’s unusual drafting choice might make sense if they are hoping that readers don’t make it to page 144 and come away with the false impression that their bill protects people with preexisting conditions.

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