U.S. Sen. Cory Gardner (R-CO) is claiming that legislation he introduced this month “would guarantee Coloradans with pre-existing conditions have health insurance coverage protections.”

In fact, his bill does not provide such protections due to multiple loopholes that insurance companies would use to avoid covering people with pre-existing medical conditions, say experts and journalists who’ve reviewed Gardner’s legislation.

The loopholes that insurance companies would exploit are currently closed due to the Affordable Care Act (ACA), which protects people with pre-existing conditions.

But if the ACA were repealed, Gardner’s bill wouldn’t stop health insurance companies from again using common strategies for denying coverage to people with pre-existing conditions that they used before the law was passed, say experts and fact-checkers.

“Big picture, [Gardner’s] bill does include some protections, but when you open up loopholes for insurance companies to avoid covering people with pre-existing conditions, they will take advantage of them,” said Sabrina Corlette, who directs the Center on Health Insurance Reforms (CHIR) at Georgetown University’s McCourt School of Public Policy. 

“Effectively, there is no protection at all,” said Corlette.

Corlette outlined four of the loopholes and issues involved in Gardner’s bill in a telephone call with the Colorado Times Recorder.

Denial Based on Health Status

“The biggest, and most glaring is that under this bill there is nothing to prevent an insurance company from just denying you a policy outright,” said Corlette.

“Before the Affordable Care Act, if you were applying for insurance, typically you’d be asked to fill out a health questionnaire, and you’d also have to check a box or say that you would allow the company to go back through your medical history. There’s nothing to prevent the company from doing that under this bill and then saying, ‘We’re not going to issue you a policy. Go somewhere else. If we don’t think you’re an insurable person, we won’t cover you.'”

Insurance Policies Designed for Healthy People

A second loophole in Gardner’s bill would allow insurance companies to design policies that don’t cover people with specific diseases or conditions, said Corlette.

“Prior to the passage of the ACA, insurance companies would design policies that would only work for healthy people,” explained Corlette. “They would do this, for example, by designing a policy that doesn’t cover drugs needed for specific diseases, like HIV/AIDS or hemophilia or cystic fibrosis.

“There’s nothing in the bill that restricts [insurance companies’] ability to design a benefit package that attracts only healthy people.”

Coverage, Yes, As Long As It’s Not Too Expensive

Third loophole: Gardner’s bill would allow insurance companies to cover people with pre-existing conditions but not pay for their care if it got too expensive.

Before the ACA, if you had an expensive medical condition (systic fibrosis, organ transplant, hemophilia), you would hit annual or lifetime caps on your benets. So you’d be left paying with your own money.

“The ACA prohibited those [benefit caps], and this bill does not address that,” said Sabrina. “So, if a plan stated, ‘We’ll cover a full plate of benefits but after $100,000, you’re out of luck,’ it would be allowed. Well, if you have hemophilia, that means this policy isn’t going to do you much good. There are conditions that require a million dollars per year for treatment.”

Incentives to Cover the Healthy

The ACA, Corlette says, incentivized insurance companies to cover people with pre-existing conditions, and Gardner’s bill does nothing to keep those incentives in place.

“The ACA included risk-management programs that essentially tried to change incentives for insurance companies to manage risk, instead of avoid it. Bottom line, it tried to shift rules of the game so that insurance companies could take people with heart disease or diabetes, for example, and manage their care in such a way as to be a financial win for them.”

“If the ACA is repealed those incentive programs go away, and so insurance companies to a large degree are going to revert to the days when they win by avoiding risk entirely.”

Gardner Hasn’t Addressed Criticism of His Bill

Gardner did not return a call asking if he sees any problematic loopholes in his proposed law.

The senator has insisted for years that he supports requirements that insurance companies cover people with pre-existing conditions–even as he’s voted multiple times against the ACA, which protects people with pre-existing conditions.

His bill appears to be intended to be part of his response to his critics.

But while he may point to it as a symbol of his stance on the issue, it’s not convincing analysts or journalists that it will make a substantive difference for people with pre-existing conditions, if the ACA is repealed.

Denver’s NBC affiliate, 9News, quoted Larry Levitt, vice president of Kaiser Family Foundation, as saying Gardner’s bill “is missing certain words that requires insurance companies to take anyone.” 

9News anchor Kyle Clark was more blunt, calling the bill “horse excrement.”

9News’ Marshall Zellinger reported that Gardner didn’t respond to his requests for an interview.

So it appears Gardner’s only comment on the bill is contained in a news release distributed Aug. 7 when the bill’s title, without any text, was released.

“My bill is simple – it guarantees coverage for people who have pre-existing medical conditions and ensures that people cannot be charged more because of a pre-existing condition,” said Gardner in a news release. “I will continue to fight for pre-existing condition protections as well as measures to lower health care costs, strengthen innovation, and expand access for all Coloradans, including those with pre-existing medical conditions.”

Over 2 million Coloradans have pre-existing conditions, according to one report.