Senators Chuck Grassley and Joni Ernst are among ten U.S. Senate Republicans co-sponsoring a bill that purports to protect health insurance coverage for Americans with pre-existing conditions.

There’s a catch: the legislation would require insurance companies to sell policies to people with pre-existing conditions, but it wouldn’t stop them from excluding coverage for those very conditions.

The latest GOP proposal on health care is a pre-emptive response to litigation that “leaves Republicans in a difficult position” on an issue where polls show “Democrats enjoy an advantage,” Sahil Kapur reported for Bloomberg on August 24. A Texas lawsuit joined by 20 Republican state attorneys general is seeking to strike down the entire 2010 Affordable Care Act. The Trump administration has taken the position that protections for pre-existing conditions are unconstitutional. A federal court will soon hear oral arguments in that case.

In a press release, Republican senators claimed their bill “guarantees the availability of coverage in the individual or group market, for all Americans, including those with pre-existing conditions, regardless of the outcome in Texas v. United States.” But being able to purchase an insurance policy is not the same as having coverage for all necessary medical treatments.

To a lay person, nothing in the “Ensuring Coverage for Patients with Pre-Existing Conditions Act” looks like a red flag. Larry Levitt, senior vice president of the Kaiser Family Foundation, explained on August 24 why the latest GOP bill would make “protections for people with pre-existing conditions something of a mirage.”

His thread starts here, and I recommend reading it in full. Before the Affordable Care Act went into effect, Levitt wrote, “I saw examples of body parts or systems being excluded from coverage for people with pre-existing conditions. For example, an insurer might offer someone with asthma coverage, but exclude any services associated with the respiratory system.” My friend Tanya Keith experienced this firsthand when Wellmark Blue Cross/Blue Shield, Iowa’s dominant insurer, tried to put a four-year exclusion on all respiratory issues because as a baby, her son had been treated for an undiagnosed bacterial infection that was not chronic.

The Health Insurance Portability and Accountability Act, commonly known as HIPAA, “limited pre-existing condition exclusions in employer plans to 12 months, and reduced any exclusions for people with continuous coverage,” but “did not limit exclusions for people with individual coverage,” Levitt noted. The Affordable Care Act “amended the HIPAA pre-existing condition exclusion language, prohibiting exclusions entirely in employer and individual plans. See 300gg-3.” However, “The Trump administration is arguing in the Texas lawsuit that a bunch of ACA provisions should be invalidated, including 300gg-3, which prohibits pre-existing condition exclusions. The new Republican bill does not reinstate this provision.”

Health care analyst Charles Gaba put it this way:

So, if you have cancer or diabetes, they could agree to sell you a policy which covers everything EXCEPT…cancer or diabetes.

If you fell and broke your arm on your way to your chemotherapy session, they’d probably cover your broken arm…but not the chemo treatment. Nice.

Gaba pointed out that the Texas lawsuit could affect people with employer-provided health insurance as well as those on the individual market. A Kaiser Family Foundation report from 2016 estimated that 448,000 Iowans, about 24 percent of our state’s non-elderly population, had at least one declinable pre-existing condition under practices pre-dating the health care reform law.

In April 2017, the Center for American Progress calculated even larger numbers, finding that more 1.2 million Iowans have pre-existing conditions, of whom 91,000 obtain insurance through the individual market. Here’s a graph created by the Center for American Progress, breaking down the estimates by Congressional district.

Staff for Grassley and Ernst did not respond to repeated requests for comment on the new bill’s limitations. Last year, Iowa’s senators voted for every Republican health care proposal that came to the Senate floor, despite analysis from the Congressional Budget Office and others suggesting many Americans with pre-existing conditions would be priced out of the market if those bills became law.

UPDATE: Earlier this month, Katie Keith wrote an excellent backgrounder on why the Texas lawsuit threatens protections for people with pre-existing conditions.

Dylan Scott of Vox asked Senator Thom Tillis about Levitt’s point, that “This bill provides [the] appearance of protecting people with preexisting conditions, but not the reality.” A spokesperson for the lead sponsor replied,

This twenty page bill is not comprehensive health care legislation. It also does not strike down or change any provisions in the Affordable Care Act. This legislation protects Americans with pre-existing conditions so that they cannot be denied coverage or charged more based on health status – two of the central protections contested in Texas vs. United States. In the event that the Affordable Care Act is struck down in its entirety, Congress would put forward a more comprehensive response.

SECOND UPDATE: Forgot to include the August 24 press release from Grassley’s office. The last paragraph suggests that Grassley is either misinformed about the bill he’s co-sponsoring or deliberately misrepresenting its provisions.

WASHINGTON – U.S. Sen. Chuck Grassley of Iowa joined Thom Tillis of North Carolina in introducing the Ensuring Coverage for Patients with Pre-Existing Conditions Act, legislation that would guarantee Americans have equal health care coverage, regardless of their health status or pre-existing conditions. Sens. Joni Ernst of Iowa, Lamar Alexander of Tennessee, Dean Heller of Nevada, Bill Cassidy of Louisiana, Lisa Murkowski of Alaska, Lindsey Graham of South Carolina and John Barrasso of Wyoming and Roger Wicker of Missouri are also cosponsors of the bill.

Oral arguments in Texas v. United States will begin on September 5th, and if the judge rules in favor of the plaintiffs, protections for patients with pre-existing conditions could be eliminated. This legislation amends the Health Insurance Portability and Accountability Act (HIPAA) to guarantees the availability of coverage in the individual or group market, for all Americans, including those with pre-existing conditions, regardless of the outcome in Texas v. United States. The legislation prohibits discrimination against beneficiaries based on health status, including the prohibition against increased premiums for beneficiaries due to pre-existing conditions.

“For decades, there’s been tremendous support at the grassroots of Iowa and nationwide to protect people with pre-existing conditions from losing their health insurance,” Grassley said. “Experts say that as much as half of the population under age 65 has some type of pre-existing health condition. This legislation will give certainty that broadly supported protections for pre-existing conditions are here to stay no matter what. Support for the legislation will separate those who really want to protect people with pre-existing conditions and those who would rather have a political talking point to scare Americans who are already worried enough. I hope the former is more important.”