No, Rape is Not a Pre-Existing Condition Under GOP Health Bill

Hysterical allegation vastly misstates impact of partial Obamacare repeal passed by House

The House of Representatives had barely passed its partial Obamacare repeal Thursday when left-wing activists started alleging the legislation would make rape a pre-existing condition that could lead to discriminatory coverage from insurers.

It is, perhaps, the most preposterous and hysterical charge associated with the contentious debate. It blew up on Facebook. New York Magazine ran a provocative story headlined, “In Trump’s America, Being Sexually Assaulted Could Make Your Health Insurance More Expensive.” Vox chimed in with a highly speculative story.

 “There’s this kind of mythology out there that there are a lot of people who are both sick and uninsured.”

New York Magazine later corrected its article to acknowledge that the American Health Care Act does not, in fact, label rape a pre-existing condition. It made an equally dubious claim that the law would allow insurance companies to charge people more for health conditions arising from sexual assault and domestic violence.

CNN on Friday brought on Jeanette Morelan, a sexual assault victim, to complain that the law would intimidate victims.

“I feel like this is going to continue to push people to silence,” he said.

Ed Haislmaier, a health care expert at the Heritage Foundation, expressed puzzlement over the allegation on Friday.

“I don’t know where this goofy rape thing comes from,” he said.

Likely, Haislmaier said, it is a misreading of the Health Insurance Portability and Accountability Act (HIPAA) of 1996. That law forbade insurance companies in the group market from establishing eligibility based on health status, medical condition, medical history, genetic information and other factors. One of those factors, “evidence of insurability,” specifically included conditions “arising out of acts of domestic violence.”

The Affordable Care Act extended those rules to people buying insurance in the individual market.

The bill passed by the House on Thursday keeps Obamacare’s rules on pre-existing conditions. But it allows states, under certain circumstances, to seek waivers from the federal government to set different rules for insurance companies. But states would have to set up high-risk pools to cushion the blow, and the House added $8 billion over the next five years for that purpose.

But Haislmaier said the American Health Care Act would not repeal HIPAA. Even if a state could allow insurance companies to penalize rape victims, he said, it is highly implausible that it would want to do so. He said there would be little business case for it.

“From an insurance standpoint, why would an insurance company care?” he asked, noting that insurance firms are concerned about chronic, costly conditions like diabetes, not injuries sustained from assaults.

And if that were not enough to put the issue to rest, 44 states also explicitly prohibit insurance companies from treating sexual assault victims differently.

Haislmaier said the flap over rape victims is part of a larger hysteria over pre-existing conditions arising from misinformation about the Republican bill. The proposed Republican bill would not give insurance companies the right to deny coverage or carte blanche ability to charge higher rates.

The law would require insurance companies to impose a 30 percent surcharge on anyone who lets their insurance lapse and then sign up again. A waiver under the GOP bill would give insurance companies the option of basing the surcharge on health status instead of the flat 30 percent rate.

Haislmaier said that fee could be less than 30 percent for healthy people and more for those who are sick. The rationale, he said, is to prevent people from dropping insurance and then waiting until they are sick before buying new policies.

Whatever the pricing policies would be, they would have to be approved by the state and the federal government.

Regardless, the higher rates could not be charged to someone who got sick while he was insured. Higher rates also could not be charged to people who switch insurance companies, Haislmaier said.

“It would apply to a very small number of people,” he said.

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Haislmaier said many advocates greatly exaggerate the number of people who would be affected by pre-existing conditions.

He said state-run high-risk pools enrolled about 250,000 people before Obamacare. Some argued that the state programs were poorly funded and that people could not get into them. But he said when Obamacare created a federal high-risk pool from 2010 through 2014 with no restrictions, it added only about 115,000 more people.

“These numbers are way overblown,” he said. “There’s this kind of mythology out there that there are a lot of people who are both sick and uninsured.”

Haislmaier said that largely inaccurate claims about pre-existing conditions have dominated the debate because it is one of the most popular provisions of the Affordable Care Act.

“It’s one of those issues that elicits an emotional reaction without ever having to think about the implications,” he said.

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