Many Republican lawmakers, including the Governor, promised in the weeks prior to the mid-term election that they would ensure that regardless of whatever happens to the Affordable Care Act, Wisconsinites would continue to have the same protections for pre-existing conditions.  But thus far, the only legislation they have proposed takes us in the wrong direction.

At about midnight on Monday night, all the Republican members of the Joint Finance Committee voted for a bill that would prevent the new Attorney General from withdrawing Wisconsin from the lawsuit challenging the validity of the ACA provisions protecting people with pre-existing conditions. Over the objections of both the new Governor and AG, the state would have to continue to participate in that attack on the ACA’s consumer protections.

Those parts of the ACA enable children and families across Wisconsin to have more affordable and accessible health care coverage so they can be healthy and productive. In addition, ensuring affordable coverage of pre-existing conditions like diabetes and asthma is extremely important for people of color who disproportionately suffer from those diseases.

Governor Walker promised in late October that he would put the ACA’s protections for coverage of pre-existing conditions into state law.  But all we’ve seen so far are attempts to sharply reduce the power of the newly-elected administration including their ability to protect our health care. They have suggested resurrecting and possibly amending an ineffective bill (AB 365) that was approved by the Assembly (but not the Senate) in the summer of 2017.

There are several substantial flaws in the premise that a bill like AB 365 could ensure protections of coverage for pre-existing conditions:

• Half of employer coverage would be exempt – A federal statute (ERISA) precludes states from regulating about half of employer-sponsored insurance—i.e., insurance plans offered by private employers that self-insure.
• Affordability – Without the ACA, state legislation affecting plans sold in the individual market will not provide meaningful access to consumers because quality coverage sold in the individual market won’t be affordable. More than eight out of ten Wisconsinites participating in the Marketplace receive federal support that significantly lowers their insurance costs. To protect pre-existing conditions requires having substantial subsidies like those provided by the ACA.
• AB 365 contains just one of the several consumer protections that need to be in place to protect people with existing medical conditions. – To be effective, such a bill would need to prohibit lifetime and annual benefit caps, and it should require insurance plans to provide comprehensive coverage. The bill approved by the Assembly in 2017 does not include those provisions.
• Trump administration sabotage – Rule changes authorized by the Trump administration will dramatically increase the number of “junk” insurance plans that are exempt from the ACA’s consumer protections, unless states take affirmative action to keep that from happening. AB 365 does not address that important issue.

Even if the legislature adds the ACA’s other consumer protections to AB 365 (but a proposed substitute amendment fails to do so), passing state legislation like that would fall far short of replacing the protections provide by the ACA – which not only gives people the right to buy coverage for pre-existing conditions but makes that coverage affordable.

Although passing an improved version of AB 365 might help a small number of people, it is likely to have a net negative effect because it would create a false perception among politicians and the public that states can fill the gap if a court strikes down the ACA or Congress repeals it. Wisconsin should only pass state-level legislation if there has been a concerted but unsuccessful effort to get a more effective and comprehensive solution approved by Congress.

If a court strikes down the ACA, state lawmakers should urge Congress to pass strong legislation that replaces the ACA’s consumer protections in a comprehensive way. And while the ACA is still on the books, state policymakers should adopt state rules or legislation limiting the length of “short-term” or junk insurance plans that are exempt from the requirement to cover existing medical conditions.

Voters across the country made it clear that they want their elected officials to protect coverage of pre-existing conditions. It’s distressing that all we have seen so far from the majority party in the legislature is a bill thwarting the promises of the next Governor and next Attorney General to drop the lawsuit that seeks to invalidate the ACA consumer protections, and a slightly revised Assembly bill that amounts to little more than window dressing.

Wisconsinites should not be duped into thinking that the proposed state legislation would significantly offset the harmful effects of repealing or striking down the effective and extremely popular consumer protections contained in the ACA.

Jon Peacock