Election 2020 Politics

The Health 202: President Trump, here’s a history of preexisting condition protections

THE PROGNOSIS

President Trump tweeted yesterday that he “saved” protections for Americans with preexisting medical conditions.

But actions speak louder than words. And history tells quite a different tale.

Trump made the claim while targeting former New York mayor Mike Bloomberg, who is running for the Democratic nomination and launched health-care-themed ads over the weekend:

Bloomberg’s response:

But Trump doubled down yesterday evening:

But this is revisionist history. At best, Trump could be said to have a complicated relationship with the Affordable Care Act’s landmark ban on insurers from refusing coverage or charging more to patients with medical conditions like diabetes, cancer or heart disease. At worst, his administration has taken repeated steps to undermine that ban — most notably, by refusing to defend it in a challenge to the 2010 health-care law.  

These protections are deeply popular among the public. More than 50 million Americans have preexisting conditions that could have excluded them from health coverage in many states before the ACA was passed. Congress and President Obama mandated it since insurers were hesitant to cover patients who might end up costing them a lot of money. 

Yet Trump — eager to win public approval on the issue — is majorly mangling the facts on how preexisting condition protections came to be. He’s made this claim multiple times in the past, according to a count by my fact-checking colleague Glenn Kessler, who has awarded the president “Four Pinocchios” for it. 

These latest tweets take things to a whole new level. So Health 202 is here to set the record straight. We present, for your reading pleasure, “Preexisting condition protections in the United States: A brief history.” 

1991: Massachusetts becomes one of the first states to prohibit health plans and insurance companies from using health status to exclude patients and set prices.

1993: Four more states — Maine, New Jersey, New York and Vermont — now have laws requiring insurers to cover any patient regardless of a preexisting condition.

September 1993: In an address to Congress, President Bill Clinton outlines a health reform plan that would provide a “health care security card” to every American that would entitle them to medical treatment regardless of preexisting conditions.

2008: Sens. Barack Obama (D-Ill.) and John McCain (R-Ariz.) both propose health reform plans in their presidential campaigns. Obama’s plan would ban insurers from discriminating on the basis of preexisting conditions. McCain’s plan would weaken existing state protections by allowing insurance to be sold across state lines but would also expand high-risk pools to cover patients with preexisting conditions.

2009: Congressional committees write and revise several versions of health reform, but all of them guarantee coverage for patients with preexisting conditions.

March 2010: Congressional Democrats pass the Affordable Care Act without a single Republican vote. President Obama signs the law, which creates a nationwide ban on discriminating against or charging more to patients based on their health status in the individual and small group markets.

2016: Trump promises to repeal Obamacare if elected president. Early in his campaign, he promises to keep the law’s preexisting condition provisions. But in March, he releases a plan calling on the ACA to be repealed “completely,” with no mention of preexisting conditions.

2017: Trump supports bills from House and Senate Republicans that would weaken preexisting condition protections by allowing states to seek waivers from the law and consider a person’s health status when writing policies in the individual market. 

February 2018: Texas and other Republican-led states file a lawsuit against the ACA, which says the whole law is hinged on its penalty for lacking health coverage and can no longer stand because the GOP-led Congress has repealed the penalty.

June 2018: The Trump administration announces it will not defend the ACA from the state-led challenge. The Justice Department files a brief with the court saying that the law’s preexisting condition protections can’t exist without the mandate penalty but that the rest of the law can stand.

March 2019: The administration adopts a fuller-orbed stance against the ACA, writing in a brief that the entire law must fall. Trump insists that if the law were struck down, he would enact a plan continuing to protect patients with preexisting conditions. Democrats scoff at that claim — as they and others are doing now.

House Speaker Nancy Pelosi (D-Calif.): 

Vox founder Ezra Klein:

University of California at Berkeley law professor Orin Kerr:

AHH, OOF and OUCH

AHH: Scientists say the Trump administration’s move to limit funding for fetal tissue research has had an negative impact on research into major diseases, includes AIDS, Down syndrome and diabetes, our Washington Post colleague Amy Goldstein reports. 

She interviewed more than a dozen senior researchers at nine universities and institutes who use fetal tissue in their work. 

The Trump administration in June announced it would end funding of medical research by government scientists that use fetal tissue. The rules have changed what research grants scientists seek from the National Institutes of Health, and some top researchers are warning emerging scientists to avoid such research. 

“The disruption is occurring, in part, because the administration has imposed an extra requirement for NIH grant applications that is not yet possible to meet,” Amy writes. “Under the rewritten rules that took effect early in the fall, a new ethics advisory board must assess all grant requests involving fetal tissue — but the board has not yet been established, and it may not be convened for many months.”

NIH did not provide a direct answer about when the new ethics reviews would begin. 

OOF: Oklahoma has filed a lawsuit against three major opioid distributors, accusing them of fueling the opioid crisis by haphazardly sending billions of painkillers nationwide. The state says McKesson Corp., Cardinal Health and AmerisourceBergen doled out more than 34 billion doses of narcotics across Oklahoma and the rest of the country between 2006 and 2012, our Post colleague Lenny Bernstein reports. 

“Defendants fueled the opioid crisis by supplying massive and patently unreasonable quantities of opioids to communities throughout the United States, including Oklahoma,” attorneys wrote in court documents filed in Cleveland County. “Defendants ignored their duties and responsibility to protect against oversupply and diversion of opioids for illicit and nonmedical uses. Defendants did so for one reason: Greed.”

Last year, Oklahoma won a court verdict against opioid manufacturer Johnson & Johnson in the only case that has so far come to trial.

Oklahoma Judge Thad Balkman “ruled against Johnson & Johnson, ordering the company to pay $465 million for one year’s worth of efforts to address the harm he said the company had caused. Both sides have appealed,” Lenny writes. “ … Now the state has turned to the three wholesalers, which control 85 percent of the drug distribution market in the United States. Federal laws and regulations assign them the primary responsibility for detecting, halting and reporting suspicious orders of narcotics from pharmacies, clinicians and others.” 

OUCH: A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit appeared skeptical yesterday of the Trump administration’s rule to require drug companies to disclose the list price of their drugs in television advertisements. 

“A Trump administration attorney argued that Congress implicitly gave HHS authority to require list price disclosure to ensure the ‘efficient administration’ of Medicare and Medicaid. Ethan Davis of the U.S. Justice Department said that drug prices are a significant cost for the CMS, so lowering those costs would help the programs run more efficiently,” Modern Healthcare’s Rachel Cohrs reports. “But three D.C. Circuit judges appeared to disagree during oral arguments. Congress did not explicitly mention regulating TV advertisements for prescription drugs in the law in question.”

The judges also questioned whether the rule could lead to confusion, as the list price is often different from what patients pay out of pocket for their prescriptions. 

“Is there any economist that says that price transparency that is not the price people will pay improves efficiency in this sense?” Judge Patricia Millett asked. 

Rachel adds that a decision against the administration’s rule would deliver a blow to the president’s health-care agenda amid his reelection bid.

HEALTH ON THE HILL

— Top Republicans on the House Energy and Commerce Committee are renewing an investigation into top drug manufacturers and their role in the opioid crisis. 

The committee’s ranking Republican, Rep. Greg Walden (Ore.), and the top Republican on the panel’s oversight and investigations subcommittee, Rep. Brett Guthrie (Ky.), sent letters to Insys Therapeutics asking for information about alleged kickback schemes to boost sales of its fentanyl spray, to Mallinckrodt Pharmaceuticals to probe efforts to monitor suspicious opioid orders, and to Purdue Pharma for information about what the company knew about the dangers of OxyContin. 

“We are continuing our work investigating the causes and effects of the opioid epidemic. Last Congress, the Committee on Energy and Commerce began bipartisan investigations into fentanyl, opioid manufacturing, opioid distribution, and the substance use disorder treatment industry,” the lawmakers wrote. “We write today to reactivate the investigation started on August 2, 2018, that examined potential breakdowns in the controlled substances supply chain, which may have contributed to the nation’s opioid epidemic, and the role of certain opioid manufacturers in such potential breakdowns.”

The letters were sent ahead of a hearing this morning before the House Energy and Commerce subcommittee on oversight and investigations regarding state efforts to curb the opioid crisis.  

TRUMP TEMPERATURE

— The Trump administration has called on the Supreme Court to allow its “public charge’ rule to go into effect while litigation continues. The rule would make it more difficult for immigrants to stay in the United States permanently if they are dependent on government benefits like Medicaid or food stamps.

“Several federal trial judges issued preliminary rulings last October that blocked the regulations from going into effect, finding they likely crossed legal boundaries,” the Wall Street Journal’s Brent Kendall reports. “In the case at the center of the administration’s emergency appeal, U.S. District Judge George Daniels in the Southern District of New York found the rule departed from longstanding U.S. policy without legal justification and ‘is repugnant to the American dream of the opportunity for prosperity and success through hard work and upward mobility.’ The judge issued a preliminary injunction that blocked the policy nationwide.” 

Last week, the U.S. Court of Appeals for the 2nd Circuit in Manhattan upheld a nationwide injunction blocking the administration from enforcing its rule, which prompted the emergency request. 

“U.S. Solicitor General Noel Francisco, the administration’s lawyer at the Supreme Court, said in court papers that the regulation was lawful and blocking it harmed the government by forcing it to grant immigration status to ‘those not legally entitled to it,’” Brent adds. 

— A new survey from Gallup found Americans say there are numerous issues, including health care and gun policies, that essentially tie as the most important ahead of the 2020 election. 

The poll found that 35 percent of Americans say health care and 34 percent say gun policy will be extremely important to their vote ahead of November. That’s compared with 34 percent who point to terrorism and national security, and 33 percent who cite education. Those four issues were the top rated among 16 issues presented as part of the Gallup survey. 

A quarter of Americans say abortion is an extremely important issue to their vote, according to the poll. 

The survey asked voters to say how important the candidates’ views on a given issue will be to influence their vote. 

— Tonight is the first Democratic presidential debate in 2020, and we’ll be watching for more Medicare-for-all sparring — this time, among only six candidates: former vice president Joe Biden; Sens. Bernie Sanders (Vt.), Elizabeth Warren (Mass.) and Amy Klobuchar (Minn.); former South Bend, Ind., mayor Pete Buttigieg; and billionaire activist Tom Steyer.

A bee recently landed on Buttigieg’s tie while he was speaking about Medicare-for-all, per this light-hearted video:

— And here are a few more good reads: 

AGENCY ALERT

MEDICAL MISSIVES

INDUSTRY RX

STATE SCAN

DAYBOOK

Today

  • The House Homeland Security subcommittee on border security, facilitation and operations holds a hearing on “Assessing the Adequacy of DHS Efforts to Prevent Child Deaths in Custody.”
  • The House Financial Services Committee holds a hearing on “How the Affordable Housing Crisis and the Gentrification of America Is Leaving Families Vulnerable.”
  • The House Energy and Commerce subcommittee on oversight and investigations holds a hearing on “State Efforts to Curb the Opioid Crisis.”

SUGAR RUSH

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