WV Attorney General Morrisey Proposes a Smoke Screen to Protect West Virginians with Pre-Existing Conditions from His Lawsuit to Repeal the ACA

West Virginia Attorney General Morrisey Puts Our Health & Lives on the Line

Yesterday West Virginia Attorney General Morrisey (R) and Senate President Carmichael (R-Jackson) announced state legislation that purports to protect West Virginians with pre-existing conditions in the event that the courts strike down or render substantial portions of the Affordable Care Act (ACA) unconstitutional.  The lawsuit to strike down the ACA was originally brought by Republican attorneys general in 20 states, including Attorney General Patrick Morrisey, and the Trump Administration has called for repeal of the entire ACA.

West Virginians for Affordable Health Care applauds Attorney General Morrisey and Senator Carmichael for acknowledging that the repeal of the ACA would threaten access to affordable and meaningful health insurance coverage for hundreds of thousands of West Virginians. In fact, West Virginia has the highest percentage of people under age 65 with a pre-existing condition with 37 percent of the state population at risk of insurance company discrimination.  It is ironic that now Attorney General Morrisey believes that he can use state legislation to ameliorate the harm to West Virginians that could be caused by his own lawsuit. 

The ACA provides both significant premium subsidies to people below 400 percent of the Federal Poverty Level and consumer protections for people with pre-existing conditions.

The subsidies (advanceable and refundable premium tax credits) are available to individuals who make $49,960 or less a year in 2020 (for a family of four the income cap for premium financial assistance is $103,000 a year.  The average monthly ACA premium subsidy for West Virginians is $765 per person.  More than 17,500 West Virginians receive a subsidy.  The estimated annual premium tax credits received by West Virginia ACA Marketplace enrollees is almost $162 million dollars.  The state would need to replace these federal dollars and with the inflation of health care costs, this amount would climb each subsequent year. 

The ACA also already provides three levels of consumer protections for people with pre-existing conditions:

  1. Guaranteed Issue: The ACA requires insurance companies to offer a policy to an applicant without regard to health status and no one can be denied a policy because of a pre-existing condition (“guaranteed issue”).
  2. No Medical Underwriting: The ACA requires insurance companies to sell a policy without raising the premiums because of a person’s health status or pre-existing condition.
  3. No Exclusion Riders: The ACA requires insurers to sell a policy to a person with a pre-existing condition without any special limits on the benefits covered by the policy (these limits are called exclusion riders).

First, West Virginians for Affordable Health Care asks that A.G. Morrisey and Senator Carmichael remove West Virginia from the Texas v. United States lawsuit.  While we – and constitutional experts from across the political spectrum - believe the constitutional challenge has no legal merit, the influence of politics in our court system puts West Virginians with pre-existing conditions in danger. 

Second, West Virginians for Affordable Health Care asks that if the ACA in its entirety or the pre-existing condition consumer protections are repealed by the courts, any legislation at the state level must have all three of the above levels of pre-existing condition consumer protections. 

Third, if the Attorney General Morrisey’s lawsuit strikes down the ACA premium subsidies, West Virginians will lose hundreds of millions of dollars in federal help purchasing health insurance. West Virginians for Affordable Health Care asks that his legislative proposal replace these lost federal dollars with state dollars.

The West Virginians for Affordable Health Care’s Health Agenda 2020 calls for this complete three-level protection for West Virginians with pre-existing conditions. Republican proposals in Congress have failed to meet this test and provided only guaranteed issue. Or have promoted high risk pools which have failed in the past to protect consumers with pre-existing conditions from very high premiums and limited their choice of plans.

Guaranteed issue without protections from medical underwriting and exclusion riders leaves West Virginians with pre-existing conditions the “right” to buy an insurance policy at exorbitantly high premiums and no coverage for the care that they need.  It leaves West Virginians with pre-existing conditions stuck with an expensive swiss cheese insurance plan that leaves them paying premiums for the privilege of being uninsured. 

Finally, Attorney General Morrisey does not acknowledge that his lawsuit could also wipe out the Affordable Care Act’s Medicaid Expansion which provides affordable, quality health insurance to more than 150,000 adult West Virginians every year.  The federal government covers 90 percent of the cost of the health care provided to these West Virginians – more than $900 million in 2018.

In addition to leaving West Virginians in less-than-perfect health unprotected from insurance company discrimination, a full repeal of the ACA would mean a huge loss of both federal Medicaid dollars as well as premium subsidies – more than a billion federal dollars per year.  The impact on health care and the state’s overall economy would be devastating.

Attorney General Morrisey has put the lives of hundreds of thousands of West Virginians, and hundreds of millions of dollars of federal money that pays for health care for our families, on the line with his lawsuit.  Trying to repair the potential damage of his own lawsuit to our West Virginia families and health care system with state legislation and dollars is perhaps commendable but impossible.  Attorney General Morrisey should withdraw West Virginia as a plaintiff to Texas v United States calling for the repeal the ACA and join West Virginia as a defendant fighting to preserve the existing pre-existing condition consumer protections and premium subsidies in the ACA for our families.

West Virginians Together for Medicaid