Governor Walker promised on Thursday that he will protect insurance coverage for people with pre-existing health conditions by putting “the exact same language that’s in the Affordable Care Act” into state statutes.

The Governor’s statement would be somewhat reassuring for health care advocates like myself if amending state statutes were a viable option for preserving the ACA’s protections for people who have ongoing medical conditions. However, in addition to the fact that the state Senate has shown no inclination to pass such legislation, there are several reasons why that strategy is not a workable alternative to the protections provided by the federal law.

Coverage of pre-existing conditions became a hot issue in Wisconsin this fall because Governor Walker authorized Attorney General Schimel to challenge the validity of the ACA in federal court. The Wisconsin and Texas Attorneys General are leading that challenge to the ACA. Many legal authorities, including the U.S. Attorney General, have said that the portions of the law that are most at risk from the lawsuit are the consumer protections, including the parts that guarantee coverage for existing medical conditions.

Before other policymakers endorse the legislative strategy the Governor proposed, they should be aware of the very substantial shortcomings of relying solely on state law to protect coverage of people with pre-existing conditions. The two biggest problems with abolishing the ACA and trying to replicate its consumer protections in state law are the following:

• Federal restrictions on state legal authority — Federal law precludes states from imposing requirements on employer-sponsored plans that comprise a huge portion of our state’s insurance coverage. As a result, if the ACA’s consumer protections are ended by Congress or the courts, we could return to a time when many employer-sponsored plans impose waiting periods of a year or more for coverage of any pre-existing conditions.
• Affordability – Legislation requiring coverage of the essential health care services needed by people with pre-existing conditions will be a rather meaningless gesture if those insurance plans are not affordable. Without the ACA’s subsidies for individual insurance plans sold through the insurance marketplace created by the law, there’s no way to accomplish the dual goals of covering people with pre-existing conditions and making the insurance they purchase affordable.

Another potential problem with the type of state legislation the Governor proposed on Thursday is that it isn’t clear whether the bill he has in mind would be broad enough to replicate the protections provided by the ACA. It’s not enough for a statute simply to require insurers to cover people with pre-existing conditions. State law would also need to include other ACA consumer protections, such as requiring insurance plans to cover the various types of essential health services. If the proposed legislation is narrowly drawn, someone with cancer could find that they are entitled to insurance coverage for their life-saving treatment, but quickly reach a cap on the extent of that coverage.

The Governor has yet to make it clear that the legislation he would propose will include the other critical parts of the federal law. Although he hasn’t specifically endorsed them yet, perhaps the legislation he would offer will be substantially broader than the ineffective bill he endorsed early this year. However, state lawmakers cannot replace the ACA consumer protections that apply to most employer-sponsored insurance, and they cannot create a structure that would enable people with pre-existing conditions to purchase affordable coverage in the individual marketplace. (A recent blog post by Bruce Thompson helps explain why opponents of the ACA cannot create a viable alternative for covering pre-existing conditions.)

That is not to say that there is nothing that a governor can do at the state level to help people with pre-existing conditions have access to quality, affordable health insurance. Governors and state legislators should do the following:

• Speak out against actions the Trump administration has been taking that are likely to undermine the ACA’s consumer protections.
• Approve state statutes or rules that limit the length of short-term plans that are exempt from the ACA’s consumer protections.
• Drop out of the lawsuit that threatens the continuation of the ACA provisions that assure quality, affordable coverage for people with pre-existing conditions.

Thus far, Governor Walker has not shown an inclination to do any of those things, but perhaps he has had a change of heart. Regardless of who is elected on November 6, we should ask the next governor if he will take the pragmatic steps outlined above to ensure that people with pre-existing medical conditions are able to purchase affordable insurance plans that cover the services they need.

For more information about the pending lawsuit, the Trump administration’s actions undermining coverage of pre-existing conditions, and the potential role of state policymakers, see the Q & A document written by Kids Forward in early September.