Despite critics’ claims, the GOP health bill doesn’t classify rape or sexual assault as a preexisting condition – Washington Post

“Look at the smirks on their faces as they celebrate taking healthcare away from millions and declaring war on women. #AHCA These men just: Made being a rape survivor a pre-existing condition; Took away maternity care and infant care; Defunded Planned Parenthood”
— Women’s advocacy group Ultraviolet, post on Twitter, May 4, 2017

One of the viral claims about the American Health Care Act (AHCA), the new Republican bill to replace the Affordable Care Act (a.k.a. Obamacare), was this claim that the AHCA “made being rape survivor a pre-existing condition,” or that it “classified rape as a pre-existing condition.”

It was unavoidable on social media, retweeted and reposted ad infinitum among advocates of reproductive rights and other critics of the GOP bill, which the House narrowly passed on Thursday. To make matters worse, media outlets ran with it, with headlines like:

In Trump’s America, Being Sexually Assaulted Could Make Your Health Insurance More Expensive (New York Magazine)
Rape and domestic violence could be pre-existing conditions (CNN)
Under the GOP’s health plan, sexual assault could be considered a pre-existing condition (mic.com)
(An op-ed on Washingtonpost.com also made this claim.)

Yet the reality is very complicated, and a highly unlikely cascade of changes in federal and state law need to happen before a woman is denied insurance solely because she was raped or sexually assaulted. Let’s dig in.

The Facts

Preexisting conditions under AHCA

First, an important note about pre-existing conditions under AHCA, a topic we dug into in depth here.

The revised GOP plan included an amendment crafted by Rep. Tom McArthur (R-N.J.), which helped the plan attract votes that led to its passage. The amendment allowed states to seek waivers from a “continuous coverage” provision that otherwise would boost insurance rates by 30 percent for one year if a person has a lapse in insurance coverage for more than two months.

Instead, if the state met certain conditions, insurance companies for one year could consider a person’s health status when writing policies in the individual and small group plan markets. Another possible waiver would allow the state to replace a federal essential benefits package with a more narrowly tailored package of benefits, again limited to the individual and small-group markets.

These changes would affect a specific group of people who meet the following criteria: Lives in a state that seeks this waiver; has a lapse in health coverage for longer than 63 days; has a preexisting condition; and purchases insurance on the individual or small-group market.

A person who fell into this category would face insurance rates that could be based on their individual condition, for one year. After that, they would qualify for prices at the community rate, rather than based on their individual conditions. This would not affect people with employer-funded health coverage; the individual market, including the Obamacare exchanges, currently serve about 18 million Americans.

Why foes of the GOP plan make this claim

Advocates and media reports highlighted individual stories of survivors of sexual assault or rape claiming they were denied coverage because of conditions relating to the abuse.

One prominent example is Christina Turner, former insurance underwriter who was prescribed anti-AIDS medicine as a precaution after she was sexually assaulted. Turner, then 45 years old, was quoted in news reports in October 2009 saying she was unable to obtain insurance coverage because insurers told her that the HIV medication raised too many health concerns. Recent media coverage all linked back to one Huffington Post article, even though health coverage has changed since then.

“Given that the treatment she received was directly associated with rape and sexual assault and subsequently denied health care coverage because of it — it is the same thing as making rape a pre-existing conditions,” said Karin Roland, chief campaigns officer at UltraViolet.

Roland pointed to these pre-Obamacare conditions, when insurers “could discriminate against people with pre-existing conditions — including sexual assault, rape and domestic violence. Under the Republican plan, states would be able to opt out of protections for pre-existing conditions — meaning insurers would once again be able to discriminate against survivors of rape and sexual violence.”

But, actually, it’s not this simple.

The reality

The AHCA does not specifically address or classify rape or sexual assault as a pre-existing condition. It also would not deny coverage to anyone because of a pre-existing condition.

Under Obamacare, insurers are prohibited from discriminating against a host of health status-related factors for the purposes of eligibility. This list of factors includes a broad term called “health status,” and then other specific factors such as medical conditions (both mental and physical), claims experience, genetic information, disability and evidence of insurability, including conditions relating to acts of domestic violence. Obamacare also says insurers can only use four basic factors, such as age and geographical location, to determine rates for premiums and deductibles.

AHCA specifically addresses states’ abilities to get a waiver so that “health status” is no longer protected from underwriting, according to a House Energy and Commerce aide. But other protections remain in place — including for mental conditions and conditions relating to acts of domestic violence — and are still protected from being incorporated into insurance underwriting, according to the aide.

States and the Secretary of Health and Human Services would decide how to interpret “health status.” State waivers must be approved by the federal government. Opponents of AHCA say that because “health status” is up for interpretation, there is no control in the bill to prevent rising costs for survivors of rape and sexual assault.

But there is another wrinkle which makes this scenario highly unlikely: Virtually every state already has a law prohibiting insurance discrimination based on sexual assault and/or domestic violence.

At least 45 states have laws prohibiting health insurance companies from using a woman’s status as a domestic violence survivor to deny coverage, according to the National Women’s Law Center.

“Domestic violence” is not always interchangeable with sexual assault, including rape. All but two states (Idaho and Vermont) enacted key provisions of a 1999 model legislation by the National Association of Insurance Commissioners to ban insurers from discriminating against sexual abuse survivors, according to America’s Health Insurance Plans, a trade association for 1,300 health insurance companies. The organization, which said AHCA “needs important improvements,” said: “Our perspective is that of course survivors of domestic abuse and rape should be covered.”

Bottom line: Almost all states (at least 45 to 48) have their own laws protecting survivors of domestic violence and sexual abuse. Even if AHCA became law as currently written, state law still determines what can and cannot be used for rating, according to the National Association of Insurance Commissioners.

Sexual assault survivors depend on a range of ambulatory and emergency services and hospitalization. They experience trauma linked to poor health outcomes that last for years after the assault. And not all survivors may disclose in the underwriting process that their symptoms are related to sexual assault. So that does leave some uncertainty as to how survivors would be affected under AHCA.

Still, as we’ve shown above, an almost Rube Goldberg scenario would need to happen before an insurer can legally classify her or his rape or sexual assault as an actual preexisting condition.

The Pinocchio Test

The notion that AHCA classifies rape or sexual assault as a preexisting condition, or that survivors would be denied coverage, is false.

At least 45 states prohibit insurance discrimination like this. Then, it takes several leaps of imagination to assume that survivors of rape and sexual assault will face higher premiums as a result of conditions relating to their abuse. A person would need to be in the individual or small-group market (most Americans under 65 are on employer-provided plans), in a state that sought waivers, and in one of two to five states that did not prohibit insurance-company discrimination against survivors of sexual abuse.

In other words, this claim relies on so many factors — including unknown decisions by a handful of states and insurance companies — that this talking point becomes almost meaningless.

We always say at The Fact Checker that the more complicated the topic, the more susceptible it is to spin. Both media coverage and hyperbole among advocates are at fault for creating a misleading representation of the House GOP health bill. We wavered between Three and Four Pinocchios, but the out-of-control rhetoric and the numerous assumptions pushed us to Four Pinocchios.

Four Pinocchios

 

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