By Elizabeth O'Brien
November 1, 2018

Lorraine remembers her excitement when the Affordable Care Act took full effect nearly five years ago. The finance executive, who has a pre-existing condition and requested her last name be withheld, looked forward to the freedom the law would give her if she got laid off or decided to retire early.

She thought she would no longer have to worry that health insurers would charge her more or even deny her coverage due to her health condition. Both were common practices on the individual market before the Affordable Care Act, also known as Obamacare, took full effect in 2014 and banned them.

But now, Lorraine finds herself watching in dismay as protections for those with pre-existing conditions face threats in Congress and in the courts, even as Democrat and Republican candidates voice their support for the most popular part of the Affordable Care Act ahead of the midterm election on Tuesday. Three-quarters of Americans said it was important for protections for those with pre-existing conditions to remain law, according to a poll released in September by the Kaiser Family Foundation.

If challenges to the law prevail, individual health insurance will likely become more expensive and harder to obtain for the more than 52 million Americans with a pre-existing condition, everything from asthma to sleep apnea to obesity. (See what counts as a pre-existing condition here.)

“I feel like the rug is pulled out from under me,” says 54-year-old Lorraine.

Pre-retirees are particularly vulnerable to the current uncertainty surrounding the Affordable Care Act. Not only are older adults more likely to have a potentially expensive health condition, but they are also more likely to face age discrimination if they find themselves searching for a new job. If insurance carriers are allowed to resume their practice of cherry picking the healthiest consumers on the individual market, then the stakes will rise for mature workers holding onto their jobs and accompanying group health benefits.

Lorraine has high blood pressure, which is well managed now with low-cost generic drugs. But she expects these drugs to lose their effectiveness over time, and she may have to switch to costlier medications. “Right now, I’m fine,” she says, “but I don’t know what the future will be like.”

Watching Health Care Ads Dominate the Midterms

Lorraine hears candidates in her district’s competitive House of Representatives race spar over health care. The issue has emerged as a big one in the midterm elections. Between Sept. 18 and Oct. 15, 46% of commercials in federal races mentioned health care, while 30% of gubernatorial commercials did the same, according to the Wesleyan Media Project.

Unlike in prior election cycles, both parties have come out vocally in support of pre-existing condition protections. “It’s like motherhood and apple pie,” says Karen Pollitz, a senior fellow at the Kaiser Family Foundation. But not all candidates are walking their talk on the issue.

For example, Missouri Attorney General Josh Hawley is running to replace Claire McCaskill in the Senate. One of his television commercials mentions that his older son has a rare chronic condition, and that he supports forcing insurers to cover people with health issues.

However, Hawley is one of 20 state attorneys general and governors backing Texas v. United States, a lawsuit that challenges the constitutionality of the Affordable Care Act. If the plaintiffs prevail, the law could be struck down, Pollitz says, and we could go back to a system where patients on the individual market see their health history scrutinized.

“Josh is committed to covering those with pre-existing conditions,” says a spokeswoman for Hawley, noting that Obamacare isn’t the only way to accomplish that goal.

Some may not be able to buy an individual policy at all if the Affordable Care Act goes away. “Cancer, diabetes, HIV, pregnancy — forget about it,” says Pollitz, referencing conditions that were common grounds for denial pre-Affordable Care Act. Kaiser Family Foundation estimates that 27% of Americans, or 52 million, have a pre-existing condition that would cause them to be uninsurable on the individual market. If you add in those who could obtain a policy but would need to pay more for it, the number of Americans with pre-existing conditions rises to about 100 million.

Before the Affordable Care Act, workers with pre-existing conditions often experienced what experts call “job lock” — or the inability to leave their jobs because they needed the health insurance. Older workers were particularly susceptible, and even though the Affordable Care Act remains in effect, the uncertainty surrounding it threatens to revive the phenomenon, experts say. Lorraine, for one, had looked forward to other options but now feels the safest course is to try to hang onto her job until she becomes eligible for Medicare at age 65.

Today’s tight job market is working in older adults’ favor, says John Challenger, CEO of Challenger, Gray & Christmas, an outplacement firm. While age discrimination persists, it’s lessened as employers compete for skilled workers. As a result, the many older workers who are concerned about health benefits are locked into full-time employment rather than a particular job, Challenger notes. They don’t get to ease into semi-retirement with a part-time consulting gig, but at least they can switch to another full-time job easier.

Reviving Repeal and Replace

The Texas case is currently before a judge in the state’s Northern District Court. Once a ruling comes down, the losing side will likely appeal, and the case will probably proceed all the way to the U.S. Supreme Court, observers say.

While any fallout from the court case is months, if not years away, the Affordable Care Act faces a more immediate threat if Republicans pick up seats in Congress. Even with a majority in both the House and the Senate, Republicans failed in their efforts to repeal and replace the law last year. But Senate Majority Leader Mitch McConnell has said that he plans to reintroduce legislation to dismantle the law if he feels he has enough votes.

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“If Republicans pick up Senate seats and retain control of the House, we could once again see a return of efforts to undermine the Affordable Care Act that could put at risk protections for pre-existing conditions,” says David Certner, AARP’s legislative counsel.

Over the summer, Senate Republicans introduced legislation supporting protections for pre-existing conditions. But the proposal “doesn’t truly protect” patients in the way that the Affordable Care Act does, says Dania Palanker, assistant research professor at the Center on Health Insurance Reforms at Georgetown University’s Health Policy Institute. For example, under that proposal insurers may be obligated to issue everyone a policy, as they are now, but a loophole would allow them to exclude coverage for the policy holder’s pre-existing condition.

In the meantime, a wholesale repeal of the Affordable Care Act could happen “very quickly” if Republicans gain seats next Tuesday, Palanker says. That would undo a key promise to older adults, she adds: “A really important piece of the Affordable Care Act was that people would no longer have to worry that there would be no options to purchase a plan before they turn 65.”

To see where your senator or representative stands, check his or her voting record, and see the states participating in Texas v. U.S. here.

 

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