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Lawsuit aims to strike health protections

Arkansas and federal officials have called on a Texas court to overturn the law saying health insurance companies must offer coverage to all customers regardless of their health or medical histories.

If successful, the push could return Arkansas and other states to the scenario of years past, when insurance companies denied coverage, charged more or required waiting periods for benefits to kick in for customers with high blood pressure or other existing medical conditions. The Patient Protection and Affordable Care Act of 2010, often dubbed Obamacare, banned those actions.

About one-third, or 550,000 people, of adults in Arkansas have an existing condition that might have led to the denial of coverage, according to the nonpartisan Kaiser Family Foundation.

Obamacare opponents contend the law imposes financial and legal burdens on states and their residents in an industry that states could regulate on their own. A few states protected people with existing conditions before Obamacare did nationwide. The federal regulations are broadly seen as one of several reasons insurance prices have increased since Obamacare’s passage, because insurance companies are covering the cost of patients they previously avoided.

Obamacare supporters are worried treatment for serious medical problems will become impossibly expensive without it.

“Terrified, actually,” said Lyn Harris of Bella Vista, who has dealt with bone marrow cancer and other health issues for decades. She remembers when she’d wait for months for coverage and rack up hundreds of thousands of dollars in bills, then hit lifetime caps on benefits, then start the process over as her husband took new jobs with new health insurance policies.

“I do not want to go back to those days at all,” Harris said. “Anybody who is sick is not feeling any sense of security right now.”


The most recent effort to undo Obamacare by the Republican-controlled Congress didn’t repeal the law but took away one of its teeth last year. The fine of potentially several hundred dollars that Obamacare charges those who go without health coverage will go away next year under Republicans’ recent tax cuts.

Arkansas, Texas and other states in February filed a lawsuit in a U.S. district court in Texas arguing Obamacare can’t stand without that penalty. The law itself states the individual coverage mandate is essential to its many pieces, and the U.S. Supreme Court in 2012 ruled the overall law was valid because the penalty was essentially a tax. No tax, no Obamacare, the states claimed.

The U.S. Justice Department weighed in earlier this month, taking the narrower position only the parts of Obamacare protecting people with existing conditions from coverage denials and higher charges must be struck down.

“The remainder of the ACA (Affordable Care Act), however, can stand despite the invalidation of those provisions,” federal officials wrote in a memorandum to the court.

A spokeswoman for Arkansas Attorney General Leslie Rutledge on Thursday said Rutledge believes the entire law should be struck down despite the federal memo.

“This lawsuit is not about whether those two particular provisions are a good or bad idea, but rather, under current Supreme Court precedent, whether the Affordable Care Act, commonly referred to as Obamacare, in its entirety is unconstitutional,” spokeswoman Jessica Ray added in an email, referring to the existing condition protections.

A final result of the lawsuit is likely months or years away as it works through the legal process including appeals to higher courts.


Gov. Asa Hutchinson in a written statement Friday said he believes states should have more flexibility in health policy than Obamacare provides but expressed concern about “repealing key features of the ACA without a replacement plan.

“For example, we need to assure that those with a pre-existing condition are protected,” he wrote. “I will continue to advocate for reforms that promote state innovation and personal responsibility, while including the necessary transition time and federal support to ensure continued access to affordable coverage for all Arkansans.”

Hutchinson’s Democrat opponent in the fall elections, Jared Henderson, went further, saying, “Politicians need to move past this tired debate of taking away health care and start prioritizing how we are going to lower the cost of health insurance premiums and keep our rural hospitals open.”

He and his wife, a plastic surgeon, own a medical practice in Little Rock.

A spokeswoman for 3rd District Rep. Steve Womack, R-Rogers, didn’t return emailed requests for comment on the lawsuit’s aims last week.

The Democratic opponents of Rutledge and Womack said they support Obamacare and see it as a program that’s helped cover a substantial number of Arkansans and sustain rural health care providers. H.L. Moody, spokesman for Rutledge opponent Mike Lee, called the lawsuit frivolous.

“We have hundreds of thousands of people in Arkansas who have pre-existing conditions already, and most of us will have a pre-existing condition at some point, so it’s paramount that we have these protections in there,” said Joshua Mahony, Womack’s opponent and board member for the Arkansas Single Parent Scholarship Fund. He added he sees health care as a right and supports coverage for all in the style of Medicare.

History provides examples of insurance companies’ approaches without the protections in place. One company that sold policies in Indiana, Kentucky and Ohio would give a slight discount to its healthiest customers while charging less healthy people up to three times as much, according to The New York Times. That didn’t include the people rejected outright.

In Arkansas, companies denied about one in five people who applied for individual policies, as opposed to getting employer-based coverage, according to a 2013 report from the Kaiser Family Foundation. An unknown number of people didn’t bother applying because of that risk, the group noted.

A database of companies’ past policy application forms maintained by the National Association of Insurance Commissioners gives more detail.

An individual plan in 2010 from Arkansas Blue Cross and Blue Shield, for instance, asked applicants about their history with dozens of issues such as arthritis, anxiety, attempted suicide and cancer. The plan required people to have coverage for 12 months before it would help with such conditions, regardless of how long they’d previously had other coverage.

Ryan James, communications director for the Arkansas Insurance Department, said that example gave a good idea of what policies were like from various companies at the time. Blue Cross and Blue Shield spokeswoman Max Greenwood on Friday said the company follows the regulations in place to offer an array of services for customers.


Besides the rules for existing condition coverage, Obamacare changed much of the health insurance market. It established state marketplaces for comparing and buying different levels of policy and provided subsidies to defray the cost for low- and middle-income families. It set a baseline for what types of health care policies should cover, such as maternity care and prescription drugs, and required free preventive services.

The law also created a way to expand Medicaid, which traditionally provides coverage to parents and children with low incomes or people with disabilities, to more low-income adults, as Arkansas and dozens of other states have done. On the other hand, it tightened some types of spending on Medicare, which generally covers people over 65.

Congressional Republicans have opposed the law since its early drafts. Last year they tried to curb its reach in multiple ways, including limits to Medicaid money, cuts to the family subsidies and waivers for states to allow the sale of insurance policies that don’t meet the law’s standards.

The proposals garnered the support of Arkansas’s members of Congress but repeatedly and narrowly failed to pass amid a swell of grassroots opposition from around the country.

Kati McFarland, a Democrat who’s running against State Rep. Jana Della Rosa, R-Rogers, said health care is one of her primary reasons for running.

McFarland has multiple chronic health needs, including a disorder of the connective tissue throughout her body, and was arrested last year outside of Arkansas Sen. Tom Cotton’s office in Washington during a protest against the Republican proposals.

She said her priority if she wins state office would be to keep the protections and coverage programs that are in place and oppose efforts to weaken them, such as the recently added work requirements for the state’s Medicaid expansion or restrictions on medical marijuana.

“What we have is better than nothing, and to go back to a world with nothing is unconscionable and unthinkable to me,” she said Friday of Obamacare.

Della Rosa didn’t return two phone calls requesting comment last week. Earlier this year she said she generally supported the Medicaid expansion as the best idea state officials have come up with so far.

Harris, the Bella Vista woman with cancer and other health concerns, said she’s busy contacting elected officials to advocate for keeping the protections when she isn’t getting or recovering from chemotherapy treatments. She said the situation reminds her of how her old back-and-forth with insurance companies used to distract her from her health.

“We’re calling, we’re faxing, we’re trying to demand town halls,” without much success on the last part, Harris said. “They’re pretty much in hiding right now,” she added of the officials. “So all we can do is keep pushing.”

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