Beyond “If I’m re-elected”: Pre-existing Conditions and the ACA

Tonight’s “news” will likely be the hysterical analysis of Mitt Romney’s slip today during a campaign speech talking about “if he’s re-elected.” Undoubtedly, regardless of the fact he corrected his error immediately, all kinds of malignant meanings will be gleaned, deciphered, and spewed regarding what Mitt Romney meant. My diatribe against this style of “reporting” is that it leaves us knowing no more than who would make a better stand-up comic.

Regardless of who wins, 2014 as it stands today, promises some changes with Affordable Care. One of those regards pre-existing conditions. OK, first find the law. In the Affordable Care Act appears in Subtitle C-Quality Health Insurance Coverage for All Americans, Part I-Health Insurance Market Reforms, Section 1201 which amends the Public Health Service Act (42 USC 300gg, et seq.) Then in Sub-Part I of the ACA the Public Health Service Act creates a new section 2704-Prohibition of Preexisting Condition Exclusions or other discrimination based on health status.

Framework: Recall this applies to qualified health plans, both employer and individual.

Of interest here is section 2701-Fair health insurance premiums and (a)-prohibiting discriminatory premium rates.

Under the ACA, the ONLY TWO JUSTIFIABLE REASONS UNDER THIS SECTION FOR RAISING PREMIUM RATES ARE AGE (Which allows 3 to 1 variation) and TOBACCO USE which allows for 1.5 to 1 variation. No one else can legally be charged more for insurance premiums based on a pre-existing condition.

While the heading is prohibiting discriminatory premium rates, unhealthy has never before been a protected group for purposes of anti-discrimination protection. Previously we relied on the protections provided by the Americans with Disabilities Act regarding discrimination for DISABILITY. On its face the Affordable Care Act changes protected classes and our definitions of DISCRIMINATION.

Under the ACA, no longer is age a protected class since higher rates can be charged to older citizens. No longer are activities of choice the distinction determining the higher cost of health insurance coverage since ONLY TOBACCO, not drugs, alcohol, overeating or a myriad of other elective activities are pinpointed for increased premiums.

While smoking is a bad choice (as arguably are overeating, being an alcoholic or a drug abuser), it certainly cannot be argued that AGE is a choice. In fact, age IS currently a protected criterion for discrimination protection OUTSIDE OF THE HEALTHCARE LAW.

So what’s the problem with such a confusing standard of cherry-picking (naturally based on some insurance analysis showing that being old and being a smoker somehow makes your odds of needing medical care greater than drug users, the obese, or an alcoholic)? The problem is funding.

The current forecast by all accounts is that funding Obamacare is going to present ongoing challenges. In spite of all the snipes about “math”, even for Democrats and non-partisan economists the funding required is not in the Act without additional and continuous funding allotments.

This will likely mean that the Act will be amended to include provision for charging more for new subsets of individuals beyond older citizens or those who smoke. Likely an obesity amendment is coming soon, mind you no such amendment is in the works, that’s just an opinion.

So what of establishing new concepts of what amounts to justifiable premium increases versus non-justifiable premium increases such as those expounded by the Affordable Care Act? The problem is that by turning on its head traditional classes of protected individuals, in this case older citizens, and by singling out a group of Americans whose health care should cost more based on their choices, i.e. smokers, we open the door to choosing anyone to include in a group that can be legally charged more for health insurance EXCEPT those with pre-existing conditions.

This is the cost shifting style of the President.

In 2014 “wellness” programs offered as part of insurance coverage will legally be allowed to incentivize people who stay a healthy weight or work out or do any number of good-health things through a reward system such as a rebate. But today’s rewards for losing weight should stand as a warning of tomorrow’s penalties for carrying around those extra pounds. Of course there is no wellness for reducing your age so that for older Americans, your premiums will remain, legally high under the Affordable Care Act.

We as a country need to address these concepts, where is the discussion of what discriminatory means when it comes to insurance rules under the Affordable Care Act?