The West Virginia Senate passed a bill on Tuesday that seeks to protect West Virginians with preexisting health conditions, in the event the federal law that currently provides those protections is repealed.
Senate Bill 284 is on its way to the state’s House of Delegates after passing the Senate 20 to 14 Tuesday afternoon, along party lines. The legislation would only go into effect if the federal Affordable Care Act, also known as "Obamacare," was repealed.
The bill’s lead sponsor is Sen. President Mitch Carmichael, R-Jackson, and it has support from West Virginia’s Attorney General Patrick Morrisey. Morrisey joined a lawsuit with other Republican attorneys general in 2018 to repeal the ACA’s individual mandate to purchase health insurance.
The bill would require the state’s insurance commissioner, currently James Dodrill, to issue a public notice when the federal government has determined “all or a significant portion” of the ACA in unconstitutional.
Dodrill and other West Virginia health officials will then work on creating a reinsurance program, to support health insurance companies caring for individuals who, due to a serious health condition, have high health care costs.
The bill doesn’t specify a method for funding that reinsurance program, but it allows the state to study the implementation of a high-risk pool.
West Virginia was one of several states operating a high-risk pool before the ACA began. Some experts have said these pools were more expensive to the people who benefited from them than they were helpful.
Morrisey has said in numerous interviews and press conferences he joined the ACA lawsuit in 2018 due to “skyrocketing” premiums and concerns over constitutional rights.
Several groups advocating for affordable health care have said a repeal of the ACA would affect people with preexisting conditions, if there’s not a backup plan in place.
One of the bill’s opponents — Sen. Richard Lindsay, D-Kanawha — said in a Feb. 13 interview with West Virginia Public Broadcasting the reinsurance program, depending on how its funded, could lead to higher premiums across the state.
Lindsay spoke against the bill on Tuesday in his remarks to the full Senate, saying the Morrisey-supported bill was unfair to people with preexisting conditions who benefit from the ACA.
“It would be analogous to having a three floor house with six bedrooms and four bathrooms,” Lindsay said, “and an individual burning it down to the ground, and forcing you to buy a house from him that’s half the size with very little space.”
He also opposed the bill because the Senate didn’t take up a Democrat-led bill, a shorter proposal which was introduced to protect people with preexisting conditions. That bill also didn’t address funding mechanisms.
A federal appeals court in New Orleans in December decided the individual coverage mandate in the ACA was unconstitutional. The federal court returned the case to a lower court in Texas who ruled the same thing months earlier, to determine how much of the ACA contradicts the U.S. Constitution, and what — in the court’s opinion — should be repealed.
If the law is repealed, West Virginians also risk losing ACA-provided subsidies to pay for personal insurance.
A report from West Virginia MetroNews in October said 22,600 West Virginians were enrolled in the state’s health insurance exchange last year. Eighty-eight percent of this population received subsidies in some amount, to pay for these plans.
Senate Bill 284’s provisions for people with preexisting conditions only applies to West Virginians under the state’s jurisdiction, who purchase their insurance independently. The bill doesn’t do anything for West Virginians covered by Medicare, Medicaid, or private employment-based health benefits for companies which self insure.
The legislation has been assigned to the House Health and Human Resources Committee for consideration.
Emily Allen is a Report for America corps member.