Published in Health Care

Legislation would enshrine key provisions of ACA in state law

BY Sunday, February 16, 2020 07:10pm

Core elements of the federal Affordable Care Act could become state law if legislators in Lansing enact proposals backed by Gov. Gretchen Whitmer.

In her recent State of the State address, the governor urged a bipartisan approach to ideas such as prohibiting health insurers operating in the state from denying coverage to people with pre-existing medical conditions.

Right to left: Bobby Mukkamala, Laura Appel COURTESY PHOTO

“Without that provision, the coverage of millions in our state could be at risk. We need to enshrine these protections for Michiganders,” said Whitmer, who also favors prohibiting insurers from cancelling coverage based on a person’s health status.

“But we need the support of lawmakers on both sides of the aisle,” Whitmer said. “Think about any woman who has given birth, any child with asthma, or anyone with a chronic condition like diabetes or high blood pressure. Pass these protections. It’s the right thing to do.”

Included in the four-bill package introduced in the state Legislature on Jan. 30, days after the governor’s address, are a state ban on the use of pre-existing conditions to deny coverage and a prohibition on the cancellation of health policies “based on the health of the insured.”

Democratic lawmakers introduced the bills in a presidential election year as a federal court ruling in a Texas case that the ACA was unconstitutional now goes through the appeals process and heads toward a likely review by the U.S. Supreme Court.

One of the bills, introduced by state Rep. Sarah Anthony, D-Lansing, would write into state law a provision of the ACA that requires health policies to include coverage for mental health care and substance abuse disorder “at a level of benefits that is no less favorable than the level provided for physical illness,” according to draft language of the legislation.

A bill from state Rep. Matt Koleszar, D-Northville, would require health policies to cover a list of essential health benefits. Another bill, sponsored by state Rep. Jon Hoadley, D-Kalamazoo, would add “gender, gender identity, or sexual orientation” to anti-discrimination provisions of the state insurance code.

The four bills sit in the House Insurance Committee and would need to gain support from Republican lawmakers, who have never shown much love for the Affordable Care Act.

Still, one key Republican on health care issues in Lansing said in a statement after the governor’s State of the State address that he’s at least open the proposals.

“The governor’s idea of enshrining parts of the Affordable Care Act into state law would require careful consideration. Always in the forefront of my mind is the critical importance of access to health care — especially in rural areas — and whatever we do regarding health care must keep that need in mind,” said Sen. Curt Vanderwall, R-Ludington, who chairs the Senate Health Policy Committee.

‘The right direction’

Some of the ACA’s provisions, particularly on pre-existing conditions, have proven “enormously popular within health care,” said Michigan State Medical Society President Bobby Mukkamala. Should the Supreme Court ultimately nullify the ACA, “at least we would have some state protections that won’t take Michigan backwards to the point where we didn’t have those things,” he said.

The Michigan State Medical Society considers putting some ACA provisions in state law as “taking us in the right direction,” Mukkamala said.

“Right now, we’re sort of relying on federal law to accomplish those improvements in health care in the country, and in case something happens to that federal law, this would sort of serve to preserve it, at least in Michigan,” Mukkamala said.

A Flint otolaryngologist, Mukkamala views the idea of putting some ACA provisions into state law as an issue that should transcend politics. The Medical Society will actively advocate for the bills in Lansing, he said.

“I think it’s prudent lawmaking to protect our citizens of Michigan in this way, regardless of party,” Mukkamala said. “I don’t see it as a partisan issue. I just see it as wisdom in preparation for what could happen.”

‘A good idea’

As of mid 2019, 11 states had enacted some kind of legislation codifying pre-existing condition protections into their laws, according to a July report from Avalere Health, a Washington, D.C.-based health care consulting firm.

Given the uncertainty of the ACA resulting from the Texas case, “it’s probably a good idea” to have protections at the state level, said Laura Appel, senior vice president and chief innovation officer for the Michigan Health & Hospital Association.

“We would not want to have a number of things happen to people,” Appel said. “You never know what’s going to change at the federal level.”

Prior to the ACA’s passage, the rescission of health coverage, particularly individual policies, was a “very serious problem,” she said. The federal law banned the practice, offering a “huge and important benefit,” Appel said.

“It’s not something that many people experienced, but if you were the one that did, it was just immensely devastating,” she said.

Such a move does have its limitations, however. Employers’ self-funded health plans are regulated by federal law, the Employee Retirement Income Security Act of 1974, and are not subject to state laws.

After the governor’s speech, early response to the idea of securing key elements of the ACA, particularly the part dealing with pre-existing conditions, indicated that “everybody was fairly open to the possibilities,” Appel said.

Consumers have become accustomed to ACA provisions on pre-existing conditions, and data from the governor’s office indicate more than half of Michigan residents have a medical condition an insurer could consider pre-existing, she said.

Broad industry support

The state’s largest health insurer, Blue Cross Blue Shield of Michigan, generally supports the notion of improving the ACA and is willing to look at embedding the elements on pre-existing conditions in state law.

“Blue Cross has long supported access to care and coverage for all, including people with pre-existing conditions,” Andy Hetzel, Blue Cross Blue Shield of Michigan’s vice president of corporate communications, wrote in an email to MiBiz. “We support bipartisan efforts in Congress to stabilize the ACA, including efforts to protect people with pre-existing conditions and continue federal subsidies to help people better afford their individual coverage. We would similarly support efforts at the state level to provide security for people with pre-existing conditions in accessing coverage from all health insurers operating in our state.”

Prior to the ACA, Blue Cross Blue Shield of Michigan was the “insurer of last resort” in Michigan that under state law had to accept everyone who applied for coverage, regardless of health status. That changed with the federal law’s provision for an issue guarantee required of all health insurers.

The Michigan Association of Health Plans, which represents HMOs in the state, hopes “to work with the governor and the Legislature on evaluating any and all health care reform proposals they might have,” said Executive Director Dominick Pallone. 

Some aspects of the ACA are also already included in state law. They include the right for a consumer to seek an independent review when a medical claim is denied or to resolve other disputes, and similar methods to set rates for health policies, Pallone said.

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