GOP senators propose new protections for challenged ACA provisions

With just a few months before midterm elections, Senate Republicans have taken a new tack toward the Affordable Care Act. Rather than mulling repealing the bill, they're looking to safeguard some of the law's most popular provisions.

Sen. Thom Tillis (R-N.C.) on Friday introduced a bill meant to secure Obamacare's guaranteed issue provision. Insurers would have to cover everyone on the individual market regardless of health status and can't revise premiums based on health. Ten senators co-sponsored the bill including Senate health committee Chair Lamar Alexander (R-Tenn.) and Sens. Bill Cassidy (R-La.) and Lisa Murkowski (R-Alaska).

The proposal comes just months after 20 GOP state attorneys general challenged the Affordable Care Act as a whole with a federal lawsuit in Texas. In June, the Trump administration sided with the red states and encouraged U.S. District Judge Reed O'Connor to eliminate the ACA's individual mandate, guaranteed issue and community ratings provisions.

Judge O'Connor will hear oral arguments on motions in the case on Sept. 5 and could render a decision before the midterm elections in November.

But the Senate bill doesn't necessarily stop insurers from denying coverage for pre-existing conditions, because it doesn't prohibit coverage exclusions, according to Larry Levitt of the Kaiser Family Foundation.

"Insurers would have to guarantee access to coverage, so exclusions would be their primary way to limit coverage," he said.

Tillis' office pushed back against this characterization as misleading. "This 20-page bill is not comprehensive healthcare legislation," Tillis' spokesperson said. "It also does not strike down or change any provisions in the Affordable Care Act. This legislation protects Americans with pre-existing conditions so that they cannot be denied coverage or charged more based on health status—two of the central protections contested in Texas vs. United States."

Certainly the measure shows how much the ground has shifted for Republicans on Obamacare just one year after their effort to overhaul the law failed.

Sens. Joe Manchin (D-W.Va.) and Claire McCaskill (D-Mo.) have both grasped the red states' lawsuit as a campaign cudgel against their GOP challengers, who both happen to represent their states in the suit.

Manchin tried to secure an amendment to Thursday's Senate appropriations package to authorize the Senate counsel to intervene in the lawsuit if it succeeds. Senate GOP leadership ultimately blocked the proposal to head off a political win, according to sources, and Manchin decried the maneuver as "disgusting."

McCaskill, who joined Manchin on the resolution when it was introduced last month, has reiterated to colleagues and constituents that pre-existing conditions must be covered by insurance plans.

Missouri is a case in point for Democratic strategists who say the issue is a winner for Democrats. Polls show McCaskill in a dead heat with GOP Attorney General Josh Hawley for her Senate seat in the deep red state. Approximately 30% of Missourians have pre-existing conditions, according to the Kaiser Family Foundation.

Hawley is facing sharp criticism inside Missouri. Late last month, the St. Louis Post-Dispatch editorial board urged him to drop out of the lawsuit, adding that the complaint has a chance of advancing since the Trump administration isn't defending the law.

"If that happens, the insurance industry would revert to the hellscape it was for many families before Obamacare, when insurers routinely charged untenable rates to people with pre-existing conditions, or refused to cover them at all," the editorial stated.

Hawley so far has dug in.

"Washington Democrats attacking this lawsuit would have us believe that you can't cover pre-existing conditions unless you blindly support Obamacare with its escalating costs and storied failure," his Senate campaign spokesperson Kelli Ford said. "They are wrong. We can get rid of Obamacare and force insurance companies to cover pre-existing conditions."

While several GOP senators told Modern Healthcare this week they aren't following the lawsuit, the Tillis bill and the political scuffle over the Manchin amendment show the party is aware of its implications at a time when House and Senate aides say Republicans have no plans to return to repeal.

GOP lawmakers are ignoring the block-grant proposal floated earlier this summer by former Sen. Rick Santorum (R-Pa.) and outside conservative groups, according to GOP staff. That proposal is based on the Graham-Cassidy bill Republican leadership shelved last year.

Rank-and-file GOP senators are divided on alternatives. Sen. Mike Rounds (R-S.D.), who earlier this year championed the so-called stabilization bill originally forged by Alexander and Sen. Patty Murray (D-Wash.), still wants to restore cost-sharing reduction payments and establish a federal reinsurance pool.

But Sen. Ron Johnson (R-Wis.), whose state is participating in the lawsuit although he hasn't been tracking it, wants to see Graham-Cassidy revived. He was among the co-sponsors along with Sen. Dean Heller (R-Nev.).

Sen. John Kennedy (R-La.), who predicted healthcare will rise again after midterms but before the start of the next Congress, doesn't know how Republicans would approach another effort. "I would support putting an instrument on the floor and letting senators be senators," Kennedy said.

While he conceded that not everyone agrees with him on that idea, he added that most members of his party "believe passionately we need to do something about healthcare."

Legal experts largely pan the merits of the Trump administration's position in the lawsuit. The Justice Department in its brief said that since the GOP Congress effectively eliminated the individual mandate penalty, the federal protections should be nixed as well. The argument follows the Obama administration's 2012 stance that federal consumer protections couldn't be upheld without the penalty.

According to Yale law professor and ACA supporter Abbe Gluck, the argument shouldn't stand because congressional intent around those protections has changed.

"The reason the argument is so maddening is that Congress took the mandate out and left the rest of the law standing," Gluck said.

Still, law professor Timothy Jost said Judge O'Connor has a record of speaking out against the ACA, and the Republican states could very well succeed.

The lawsuit could also feature prominently in the Brett Kavanaugh's confirmation hearings for the U.S. Supreme Court; those hearings will start the same day as the lawsuit's oral arguments are heard.

"One of the most salient issues from the Democrats on Kavanaugh is the ACA and Kavanaugh's possible willingness to do away with the pre-existing conditions provision," Jost said. "There's only one case that would put the issue in front of the Supreme Court."

Kavanaugh's opinion in 2012 ruled that the individual mandate penalty is a tax, which ultimately saved the ACA in the U.S. Supreme Court. Chief Justice John Roberts and a majority of justices upheld the law as an exercise of Congress' constitutional authority to tax.