You may have heard President Obama trumpet in many recent speeches his plan to have government run health insurance cover everyone's pre-existing medical conditions. As an example, he said to the American Medical Association on June 15, 2009:
"That is why we need to end the practice of denying coverage on the basis of pre-existing conditions. The days of cherry-picking who to cover and who to deny--those days are over."
That certainly sounds like signing up for one of the government insurance plans, no matter what ails you, will get you covered, doesn't it?
I was curious to see if the President is right about his plan putting an end to "cherry-picking" which illnesses to cover, so I decided to wade through the 1,018 page proposed health care law to find out if that's true.
Come with me on this fantastic voyage through a mess of cross-referenced and confusing legalese. As your tour guide, I have nearly 20 years experience in practicing insurance law, but reading this was not easy for me. We can get through it together though.
If the President wanted his health insurances to cover all pre-existing conditions, you'd expect some pretty simple language that says,"All pre-existing conditions will be covered." Take a look at what is written into the law instead:
Section 111 has this paragraph about pre-existing conditions:
A qualified health benefits plan may not impose any pre-existing condition exclusion....
Great! Looks like the President is telling the truth. Oh but wait, the paragraph doesn't end there. It continues...
...(as defined in section 2701(b)(1)(A) of the Public Health Service Act)...
Ok, that means we have to look up a whole other law - the Public Health Service Act (PHSA) - to find out what the definition "pre-exiting condition exclusion" is. But before we do that, the paragraph we are reading continues:
...or otherwise impose any limit or condition on the coverage under the plan with respect to an individual or dependent based on any health status-related factors (as defined in section 2791(d)(9) of the Public Health Service Act) in relation to the individual or dependent.
Ok, the paragraph we are reading has ended, but we now have two tasks: Go to the PHSA and look up the definition of "pre-existing condition" in section 2701(b)(1)(A) and the definition of "health status related factors" in section 2791(d)(9).
When we Google those sections of the PHSA to read it, we run into a problem: The section numbers referenced in Obama's bill for the PHSA are the old numbers. The PHSA has been amended with new numbers, so our Googling has failed us.
Undeterred, we print out the full text of the PHSA so we can read the whole thing and find the correct section numbers. Much to our chagrin, it is 1,476 pages long. There goes our Saturday. But we are committed to this project, so we bear down and find the right sections.
Here is how the PHSA defines "pre-existing condition exclusion" in section 2701(b)(1)(A):
IN GENERAL.-The term "preexisting condition exclusion" means, with respect to coverage, a limitation or exclusion of benefits relating to a condition based on the fact that the condition was present before the date of enrollment for such coverage, whether or not any medical advice, diagnosis, care, or treatment was recommended or received before such date.
That's great! I have to tell you, President Obama seems a man of his word...oh wait. We had two things to look up here in the PHSA, didn't we? Section 2701(d)(9) defines "Health Status-Related Factor" like this:
The term "health status-related factor" means any of the factors described in section 2702(a)(1).
Ok, what kind of dirty trick to waste our time was that? President Obama sends us to section 2701 for a definition, and the definition is"see section 2702." Why not send us right to section 2702? Sigh. Fine. Let's keep reading.
Section 2702 (a)(1) of the PHSA says:
(a) INELIGIBILITY TO ENROLL.-
(1) IN GENERAL.-Subject to paragraph (2),...
Ok, stop right there. Just know that as we continue reading paragraph 1, we have to withhold any conclusion, because everything we are about to read is subject to paragraph 2. Ok? So let's continue with paragraph 1:
...a group health plan, and a health insurance issuer offering group health insurance coverage in connection with a group health plan, may not establish rules for eligibility (including continued eligibility) of any individual to enroll under the terms of the plan based on any of the following health status-related factors in relation to the individual or a dependent of the individual:
(A) Health status.
(B) Medical condition (including both physical and
(C) Claims experience.
(D) Receipt of health care.
(E) Medical history.
(F) Genetic information.
(G) Evidence of insurability (including conditions arising
out of acts of domestic violence).
Well I have to tell you up to this point President Obama is still looking good. Paragraph 1 seems to say the Government can't deny you coverage based upon any of the above pre-existing conditions. Oh but I forgot - the whole thing is "subject to paragraph 2." Let's see what that says:
(2) NO APPLICATION TO BENEFITS OR EXCLUSIONS.-To the extent consistent with section 701,...
OK, stop right there. They are making us work again. We are going to continue reading paragraph 2, but we have to withhold conclusions because we have to make sure it is "consistent with section 701." All right, here is paragraph 2:
paragraph (1) shall not be construed-
(A) to require a group health plan, or group health insurance coverage, to provide particular benefits other than those provided under the terms of such plan or coverage, or
(B) to prevent such a plan or coverage from establishing limitations or restrictions on the amount, level, extent, or nature of the benefits or overage for similarly situated individuals enrolled in the plan or coverage.
The bottom just fell out, and Obama is looking pale. The above language in paragraph 2 just put a whole bunch of power in the hands of the folks writing the policies when it comes to pre-existing conditions.
But before we analyze that, remember paragraph 2 has to be "consistent with section 701." So let's look at that. It says:
The purpose of this subpart is to enable the Secretary to provide a Federal program of student loan insurance for students in (and certain former students of) eligible institutions (as defined in section 719).
Wait...what? What's that got to do with the price of tea in China? We are talking about pre-existing medical conditions and suddenly we get sent to a section about - I don't know - giving loans to foreign exchange students from Kenya?
I think I know what happened there. The Public Health Service Act was originally written in the 1940's and has been amended many times. Somewhere along the way Congress just got sloppy, and now there is a cross-reference that either makes no sense or the connection is so obscure even comedian Dennis Miller thinks it's a little far-fetched.
I think it's just a huge typographical error, so the only thing we can do is ignore section 701 and get back to paragraph 2 of Section 2702, which we were discussing above.
I know all of this is confusing, but let your trusty tour guide tell you where you stand:
What paragraph two says in part A is that policy writers for the government will be allowed to make the insurance you buy cover certain ailments, and not cover others (one of which may be a condition you happen to have, which is pre-existing).
What paragraph two says in part B is that policy writers for the government will be allowed to limit the amount, level, extent, or nature of the treatment you get for certain ailments (one of which may be your pre-existing condition).
So who will be writing your insurance policy? According to the President's plan, a new bureaucracy known as the "Health Benefits Advisory Committee." It will be made up of 27 people, and guess how many have to be a treating doctor: One.
So if you believe President Obama's quote to the AMA means that if you sign up for government insurance your pre-existing condition will automatically be covered, - you're wrong, and so is the President. You'd better read the fine print on whether the gang of 26 bureaucrats plus one doctor is going to cover your pre-existing condition or not. President Obama is giving them the power to not cover you.
Read more Tommy De Seno at www.JustifiedRight.com
Tommy De Seno is an attorney in New Jersey and contributor to Ricochet.com.