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Affordable Care Act
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Pre-Existing Conditions Key If Obamacare Is Struck Down

Wilton Simpson
News Service of Florida

If the Trump administration and a group of states, including Florida, successfully scuttle the Affordable Care Act after next week’s election, the Republican-controlled state Legislature has a plan.

Sort of.

Before the federal law, also known as Obamacare, Florida did not require that health insurance companies offer coverage to people with pre-existing conditions.

But with the Trump administration and states such as Florida in court trying to end Obamacare, legislators in 2019 passed a law championed by incoming Senate President Wilton Simpson that sought to address the politically sensitive issue of pre-existing conditions if the Affordable Care Act goes away.

The law would require health insurers or health maintenance organizations that issue comprehensive health insurance contracts or policies in the state to offer plans that do not exclude pre-existing conditions. The law would require them to have those policies available to the public within 30 days of Obamacare being repealed by Congress or overturned by a U.S. Supreme Court ruling.

But while the Legislature addressed pre-existing conditions, the 2019 law doesn’t address the other key factor in health insurance coverage: affordability.

“There’s no restriction on how much they can charge,” Jodi Ray, director of Florida Covering Kids & Families at the University of South Florida, told The News Service of Florida. “We are basically parsing out health care again, and only certain people will be entitled to access it based on affordability. Affordability looks different in everybody’s lives.”

Under the state law, insurance companies would be allowed to pool policies for people with pre-existing conditions separately from healthier people and medically underwrite the policies.

A 2019 legislative analysis noted that what is known as “adverse selection,” which the Affordable Care Act, wiped out, could be an issue.

“Such coverage may be expensive for some individuals with pre-existing medical conditions due to adverse selection,” the analysis said.

At the time, Simpson, R-Trilby, said “rules and restrictions” regarding premiums could be addressed later.

The Florida Office of Insurance Regulation did not immediately respond Tuesday to a request for comment from the News Service.

The U.S. Supreme Court will hear arguments Nov. 10 in the case, known as Texas v California, that seeks to strike down Obamacare. That is one week after the general election and nine days after 2021 enrollment begins for policies under the Affordable Care Act.

Newly confirmed Justice Amy Coney Barrett, who has cemented the court’s conservative 6-3 majority, will participate in the case. Barrett has criticized an earlier court decision that preserved Obamacare.

The arguments next month, in part, will involve whether the Affordable Care Act’s individual mandate to purchase insurance is unconstitutional because there is no longer a financial penalty. And if that is unconstitutional, the court will consider whether the remainder of the law should be tossed out.

Former Florida Attorney General Pam Bondi was one of 19 Republican attorneys general who joined the suit when it was filed in federal court in the Northern District of Texas.

A group of 40 advocacy organizations on Monday sent a letter to Ashley Moody, Florida’s current attorney general, asking that she remove the state’s support of the litigation.

“Our plea is made in light of the potentially devastating consequences that could flow from the court’s ruling. The timing could not be worse, as Floridians continue to battle COVID-19, as well as the economic devastation of the shutdown,” said the letter, which was signed by Disability Rights Florida, the League of Women Voters of Florida, Florida NOW and the AFSCME labor union, among others. “Any ruling that results in the weakening or repeal of the ACA (Affordable Care Act) would further undermine the health and well-being of millions of Floridians already suffering due to the ongoing COVID-19 pandemic.”

In a statement to the News Service, Moody spokeswoman Lauren Cassedy said the attorney general has “consistently supported the protection for people with pre-existing conditions” noting that she lobbied the Legislature in 2019 on the issue. Moody had no additional comment, with Cassedy noting in the statement that “our office is party to this litigation and it would not be appropriate to discuss the ongoing proceedings.”

The Affordable Care Act is the signature legislation of former president Barack Obama.

Passed in 2010, the law made sweeping changes to how insurance is sold and priced.

Obamacare put into federal law standards that health insurance companies must abide by and precluded states from weakening those standards. The federal law requires health insurers to offer policies to people regardless of pre-existing conditions and prevents companies from charging rates based on health factors. Insurance carriers only are allowed to price policies based on age, family composition, geographic location and tobacco use.

The law has gained in popularity, and protecting people with pre-existing conditions has become a political lightning-rod issue, including during this year’s presidential campaign.

But Republicans have filed repeated lawsuits over the years to try to kill the law, and most Florida GOP leaders have been steadfast in their opposition, warning that government-controlled health care would be a job killer. Florida is one of 14 states that have not expanded Medicaid to low-income childless adults as allowed under the federal law.

Yet Florida could have the most to lose if the law is ruled unconstitutional.

That’s because Florida leads the nation in people enrolled in a federal health insurance exchange created under the Affordable Care Act. The exchange is where people can purchase individual health insurance plans and receive subsidies if they qualify based on their income levels.

A spring 2020 enrollment report showed that 1.8 million Floridans had enrolled and paid their first premiums, if applicable. Ninety-six percent of those people qualified for tax credits to help offset the costs of the coverage.

More than 1.2 million people qualified for tax credits plus additional cost-sharing reductions because their incomes were less than 200 percent of the federal poverty level.