Commentary Media

Trumpcare and the Return of Rape and Domestic Violence as Pre-Existing Conditions

Sarah Christopherson

Recent history demonstrates that even strong state protections may be insufficient in practice to help survivors of rape, sexual assault, or domestic violence.

This piece is cross-posted with permission from the National Women’s Health Network.

On May 6, the Washington Post published a disconcerting piece denying that the House-passed Trumpcare bill would ultimately lead to discrimination against victims of rape, sexual assault, or domestic violence. Even the headline (“Despite critics’ claims, the GOP health bill doesn’t classify rape or sexual assault as a preexisting condition”) is a masterpiece of contortion; while technically true, it is misleading readers about the bill’s real-world impact.

The rest of reporter Michelle Ye Hee Lee’s piece is no different: “The AHCA does not specifically address or classify rape or sexual assault as a pre-existing condition,” she writes. “It also would not deny coverage to anyone because of a pre-existing condition” (emphasis mine).

That’s true. There’s no language in the bill declaring rape, sexual assault, or domestic violence to be pre-existing conditions. And the bill does, indeed, require insurance companies to offer coverage to everyone, even if they operate in a state that has opted out of the Affordable Care Act’s (ACA) consumer protections for pre-existing conditions and essential health benefits.

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But under the GOP bill, insurance companies would be allowed to both price some sick people out of the market and refuse to cover essential services that people might need. For all practical purposes, this takes us back to the pre-ACA world. A cancer patient who is offered insurance with a, say, $10,000 per month premium that doesn’t cover hospitalizations or cancer drugs is, practically speaking, no different than a patient not offered insurance at all.

Meanwhile, the Wall Street Journal reported on May 12 that the House’s language gutting protections for pre-existing conditions could survive in the Senate.

We know what the impact on women would be because we have a number of concrete examples from the pre-ACA days: A woman in Florida is raped, prescribed anti-viral drugs as a prophylactic against HIV, and then can’t get insurance for three years until she can prove she is HIV-free. Another in New Mexico is beaten by her spouse, loses consciousness, then can’t get insurance when she reports her medical history. A third in Colorado has a cesarean section and can’t get coverage unless she agrees to be sterilized.

State Laws Won’t Make Up for Rolling Back the ACA’s Protections on Pre-Existing Conditions

Insurance companies want to attract healthy, cheap customers while discouraging—through high prices or skimpy coverage—sick, expensive ones. As Delia Harrington explained at Rewire earlier this month, rape, domestic violence, pregnancy, and more can lead to medical needs or medical histories that make women undesirable customers.

Under the ACA, millions of women benefit from “community rating,” where everyone in the same market gets charged the same price, with a few variations for age and smoking. But under the Republican bill, states could opt to return backward to “individual rating” where, for example, a rape victim is charged a much higher premium or is offered health insurance that doesn’t cover hospitalization—all because she might have contracted HIV from her attacker.

But don’t worry, the Post comforts, because “protections remain in place—including for mental conditions and conditions relating to acts of domestic violence.” And later: “almost all states (at least 45 to 48) have their own laws protecting survivors of domestic violence and sexual abuse. Even if AHCA became law as currently written, state law still determines what can and cannot be used for rating.”

The Post article gives a lot of weight to the assurances of an unnamed Republican House Energy and Commerce aide that everything will be fine, but includes little research on the rate of insurance denials pre-ACA. Community rating not only keeps premiums lower for millions of people, it also limits the ability of insurance companies to game the system. Once individual rating returns, it becomes almost impossible for the average consumer to prove that a premium hike was based on a legal, not illegal, reason.

In 2007, attorney Jody Neal-Post lived in one of those states with strong protections on the books. It didn’t stop insurance companies from trying to deny her coverage anyway. Kaiser Health News (KHN) reported in 2009: “In some ways, Neal-Post was lucky. Her home state of New Mexico has strict laws prohibiting insurers from denying insurance based on a history of abuse. She’s also an attorney with experience representing victims of domestic abuse… [A] domestic violence victim may never know why coverage was denied. Neal-Post adds that, because victims of domestic violence often remain silent, they wouldn’t necessarily ask the right questions. In her case, she says, ‘they just made the mistake of [denying coverage] to a lawyer. It’s flat-out wrong that I had to have professional skills and know-how to get covered.’”

In the same piece, KHN noted:

There have been no recent surveys to gauge how often victims of domestic abuse are rejected by insurers. An informal 1994 survey conducted by the Senate Judiciary Committee subcommittee staff found that eight of the 16 largest U.S. insurers used domestic violence as a factor in deciding whether to offer insurance coverage and how much to charge.

Follow-up surveys by the insurance commissioners of Pennsylvania and Kansas the next year found that one in four responding insurers reported taking domestic violence into account when determining whether to issue or renew health, accident or life insurance policies.

.…

Insurers never directly ask about abuse status on an application, [Nancy Durborow, health projects manager for the Pennsylvania Coalition Against Domestic Violence] explains. Instead, they learn about a history of domestic abuse in a myriad of other ways. They might find evidence in an applicant’s medical records, such as repeated visits to an emergency room or a doctor’s notation about abuse. Insurance agents may find out during an interview with the applicant. Durborow has even heard of cases where insurance agents have visited local courthouses to search for Protection from Abuse Orders, which are public information. Insurers may also see reports of domestic disturbances in a local newspaper.

Millions of Women Could Be Affected

But there’s still no cause for worry, says the Post, because so few people will be affected: “[I]t takes several leaps of imagination to assume that survivors of rape and sexual assault will face higher premiums as a result of conditions relating to their abuse. A person would need to be in the individual or small-group market (most Americans under 65 are on employer-provided plans), in a state that sought waivers, and in one of two to five states that did not prohibit insurance-company discrimination against survivors of sexual abuse.”

In fact, there’s credible reason to believe that far more people will be affected than just the seemingly small group the Post identifies. More than a week before the Post dismissed the concerns of sexual assault survivors, Matthew Fiedler of Brookings Institution posted a compelling explanation of how Trumpcare could eliminate community rating for everyone:

At first glance, it might appear that the community rating waivers allowed under this amendment would only allow insurers to charge premiums based on health status to people with a recent gap in coverage. Even that approach would significantly weaken community rating since coverage gaps are common, including for people with pre-existing conditions. In fact, however, the framework created by the waiver would allow states to effectively eliminate community rating protections for all people seeking individual market coverage, including people who had maintained continuous coverage.

In brief, healthy people would have a strong incentive to “opt out” of the community-rated pool and instead pay a premium based on health status. With healthy enrollees opting out of the community-rated pool, community-rated premiums would need to be extremely high, forcing sicker individuals—including those with continuous coverage—to choose between paying the extremely high community-rated premium or being underwritten themselves. Either way, people with serious health conditions would face prohibitively high premiums. As a result, community rating would be eviscerated—and with it any meaningful guarantee that seriously ill people can access coverage.

.…

States would technically be required to satisfy certain criteria to receive a waiver, but as noted by Tim Jost, those criteria would be trivial to meet. The state would have to agree to operate a high risk pool, reinsurance program, or related program under other provisions of the AHCA. But that would often happen automatically, and the waiver process would not require the state to ensure that the program is adequately funded (or otherwise effective). Waiver applications would also be required to explain how the waiver would improve the state’s health insurance market along at least one of five dimensions. Those criteria would also be easy to meet. Indeed, one is “reducing average premiums” in the state, which almost any waiver of this type would achieve by driving many sick individuals from the market.

There’s also reason to believe that far more states would be pressured into seeking such waivers. Fiedler said:

Predicting exactly how many states would take up an option to fully eliminate community rating is challenging, but it is plausible that many states would be interested in such a waiver in light of the fact that only a small minority of states had community rating regulations in place prior to enactment of the Affordable Care Act. This likely reflected the political and economic challenges of implementing community rating without adequate subsidies and an individual mandate, policies that undergird the existing individual market but which the AHCA would weaken or remove entirely. The market disruption caused by the AHCA’s other provisions might also make states receptive to steps they might otherwise decline to consider, particularly steps that lowered some residents’ premiums, even if those premium reductions came at the direct expense of other, vulnerable state residents.

And millions of people with employer-sponsored coverage today could find themselves on the individual market in the near future. In its estimate of the first version of Trumpcare, the Congressional Budget Office (CBO) concluded that “over time, fewer employers would offer health insurance to their workers.” The CBO predicts: “Roughly 2 million fewer people, on net, would enroll in employment-based coverage in 2020, and that number would grow to roughly 7 million in 2026.” That’s equivalent to the entire state of Arizona losing employer-provided coverage.

Meanwhile, a December report from the Kaiser Family Foundation estimates that “27% of adult Americans under the age of 65 have health conditions that would likely leave them uninsurable if they applied for individual market coverage under pre-ACA underwriting practices that existed in nearly all states. While a large share of this group has coverage through an employer or public coverage where they do not face medical underwriting, these estimates quantify how many people could be ineligible for individual market insurance under pre-ACA practices if they were to ever lose this coverage.” (emphasis mine)

What does all of this mean?

Contrary to the Washington Post, nothing in the Republican bill makes up for the loss of guaranteed, universal ACA-style protections for pre-existing conditions or the loss of the ACA’s requirements about what insurance must actually cover. Recent history demonstrates that even strong state protections may be insufficient in practice to help survivors of rape, sexual assault, or domestic violence.

I give the Post a failing grade on all marks: inadequate research, misleading claims, and a shocking naiveté about the realities faced by survivors of rape and domestic violence.

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