March 29, 2010

Health care reform has moved from being a bill to being a law. Part of the law is this: Insurers may no longer exclude children under age 18 for a pre-existing condition.

Insurers raise their middle finger to us and say, "Well, that's not exactly what the law says. As we see it, we may have to stop excluding children's conditions in situations where we already cover them for other medical needs, but there's nothing saying we have to issue new policies."

Yes, this is what they are arguing. The ink is not dry on the law yet, the reconciliation bill has not even been signed into law yet, but that doesn't matter to these beasts. It is their plan to be dragged kicking and screaming into the 21st century clutching their teabags, whining and dragging their feet at every turn.

From the New York Times:

Insurers agree that if they provide insurance for a child, they must cover pre-existing conditions. But, they say, the law does not require them to write insurance for the child and it does not guarantee the “availability of coverage” for all until 2014.

First, this doesn't affect policies covering children under group insurance provided by an employer, because the law clearly uses the words "shall continue to provide" with regard to those dependents.

This particular argument would apply to someone applying for insurance for their child as an individual policy.

Second, there is absolutely no question that the intent (or what is generally called the "spirit of the law") is for pre-existing conditions exclusions to be ended THIS YEAR for ALL CHILDREN under the age of 19. Period.

With legislation this broad, there will always be areas where either a technical correction is needed or a regulation. It's likely that a regulation will suffice to create the clear bridge from no exclusions to guaranteed issue. Frankly, if insurers think it's a good idea to continue to thumb their collective noses at the Congress and President of the United States by either creating or inventing loopholes, they're likely to find themselves without any leverage and little voice in what their future regulatory environment will look like.

They know the spirit and intent of the law. They think they've found a loophole to exploit for PR gains only, since clarification will be forthcoming:

A White House spokesman said the administration planned to issue regulations setting forth its view that “the term ‘pre-existing’ applies to both a child’s access to a plan and his or her benefits once he or she is in a plan.” But lawyers said the rules could be challenged in court if they went beyond the law or were inconsistent with it.

One thing is guaranteed: Picking on children and finding excuses to let them linger with illnesses that either bankrupt their parents or force them onto state Medicaid rolls is not going to make them more popular in Washington, nor with the general public. When insurers exclude newborns with heart defects requiring immediate surgery, it doesn't play well in the news. This is what they will no longer be able to do, and what they've come to expect they are entitled to do anyway.

We are watching one of the most powerful lobbying machines in the United States squeal in anger at its defeat. It's likely to squeal louder before it is vanquished entirely or dies a natural, long overdue death.

Update 4:10pm HHS Secretary Kathleen Sibelius confirms that regulations will require all insurers to cover children AND issue new policies to children regardless of pre-existing conditions.

"To ensure that there is no ambiguity on this point, I am preparing to issue regulations in the weeks ahead ensuring that the term 'pre-existing condition exclusion' applies to both a child's access to a plan and to his or her benefits once he or she is in the plan," the secretary added.

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