As midterm approaches, 10 Republican senators introduce bill to protect consumers with pre-existing conditions

Donkey and elephant figurines face each other with stethoscope and pills with American flag in background
The bill was introduced on Thursday by Senator Thom Tillis, R-N.C., with nine co-sponors. (Getty Images/Moussa81)

Polls have shown most voters support protections in the Affordable Care Act (ACA) that prohibit insurers from charging consumers more for pre-existing conditions. But if 20 conservative states succeed in their lawsuit to repeal the ACA, those protections could vanish—putting many Congressional Republicans on defense with the midterm election rapidly approaching.

As a result, 10 Republican senators, led by Thom Tillis, R-N.C., introduced a bill on Thursday to amend (PDF) the Health Insurance Portability and Accountability Act (HIPAA) to prohibit insurers from discriminating against individuals with pre-existing conditions. Should the ACA be struck down, that particular provision will effectively remain in place, those senators say.

Indeed, as written, the bill would prohibit discrimination based on a variety of “health status-related factors,” including physical and mental medical conditions, receipt of care, and claims history. 

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But as with most issues in health insurance, it’s not that simple, experts say.

For example, the bill would allow an insurer to restrict coverage if “it will not have the capacity to deliver services adequately … to existing group contract holders and enrollees."

RELATED: Verma vows to defend pre-existing conditions despite ACA legal challenge

It also says an insurer can deny coverage if “it does not have the financial reserves necessary to underwrite additional coverage” and use “the results of a genetic test in making a determination regarding payment.”

This leaves room for plans not to cover specific conditions and to determine premiums based on age, sex, or occupation, according to Larry Levitt, Senior Vice President at Kaiser Family Foundation.

“Insurance is complicated and the details matter a lot in how real the protection is,” Levitt tweeted as part of a thread parsing his concerns.

Department of Justice officials have refused to defend the ACA in court and agree that the pre-existing condition protection should be struck down if the law is deemed unconstitutional.

The bill's co-sponsors include Lindsey Graham, R-S.C., and Bill Cassidy, R-La., who introduced a controversial repeal-and-replace bill last year, Lamar Alexander, R-Tenn., who heads the Senate Health, Education, Labor, and Pensions Committee, and—perhaps most surprisingly—Lisa Murkowski, R-Alaska, who voted against multiple ACA repeal attempts, including the Graham-Cassidy bill.