In April of this year, West Virginia Attorney General Patrick Morrisey put West Virginia’s name on a 62-page document.
In more recent months, Sen. Joe Manchin, D-W.Va., has spent a lot of time criticizing him for it.
Patrick Morrisey is suing to end protections for people with pre-existing conditions, he’ll tell you, repeatedly.
That is absolutely correct.
The lawsuit, filed in federal court in Texas, does, in no certain terms, argue that insurance companies should no longer have to cover people with pre-existing conditions.
However, despite the onslaught of ads and mailers, neither candidate is saying what their plan is for our health care system.
And neither tends to mention that to cover sicker people at equal cost, someone has to pay for it.
West Virginia had the highest rate of people with pre-existing conditions in the country in 2015, according to the Kaiser Family Foundation.
Kaiser came up with what it said was a conservative estimate of 392,000 people, a 36 percent rate among non-elderly adults.
Dementia. Parkinson's. Obesity. Cancer. Arthritis. COPD. Diabetes. Stroke. Hepatitis. Heart disease. Addiction.
To understand the debate about pre-existing conditions, first, you need to understand the basics of the Affordable Care Act.
"The idea was to cover everyone," explained Simon Haeder, a health policy professor at West Virginia University's John D. Rockefeller School of Politics and Policy.
Some countries do that through taxes. In the United States, taxes pay for Medicare, Medicaid and the Children's Health Insurance Program, but around half of adults get their insurance through private companies, either by selecting those plans themselves or through their employers.
The Democratic-controlled Congress that passed the Affordable Care Act understood that if they required insurance companies to cover everyone, mainly only sick people would sign up, and healthy people would wait until they were sick to sign up.
So, they required everyone to sign up, and charged a penalty if you didn't.
Congress also understood that requiring insurance companies to cover everyone wouldn't be enough.
Haeder explained that if Congress would only have required insurance companies to cover everyone, they would charge those sick people who signed up – people with pre-existing conditions – more, and those sick people wouldn't be able to afford insurance.
So they made insurance companies charge similar premiums.
"Long story short: Without government intervention, insurers only want healthy people," Haeder said. "Private markets cannot solve this issue. The underlying rationales of everyone involved don't work out. You need some sort of entity to facilitate transactions (Government fits the bill)."
Now, politicians spend much of their time talking about the specific component of the ACA that required companies to charge people with pre-existing conditions equal premiums, and not deny them care.
But proponents of the ACA and health policy experts have noted that the component of the Affordable Care Act called the individual mandate, which required Americans to buy insurance or pay a penalty, made way for coverage of people with pre-existing conditions, in the first place.
Earlier this year, the Republican-majority Congress voted to essentially end the individual mandate by setting the penalty at $0.
Thomas Bias, director of the Health Research Center at West Virginia University School of Public Health, noted that the individual mandate was meant to spread costs around a larger pool of people buying insurance.
He said that while the pre-existing conditions provision of the ACA and the individual mandate were two separate provisions of the ACA, he said they were related for economic reasons.
“The influx of more bodies into the marketplace, especially healthy ones, should decrease the per capita cost of insurance coverage overall,” he said.
Jeff Graham, administrator of Beckley Health Right, noted that the plan didn't work out as smoothly as hoped. He watched many people take a look at the price and refuse to buy insurance at all.
But Graham said he understands the theory behind the ACA, that young, healthy people would have to buy plans and basically subsidize the cost of plans for older sicker people.
He added that he isn't privy to the thought process of people at Blue Cross Blue Shield, which provides ACA-compliant plans in West Virginia.
But he noted that the removal of the individual mandate could create "a tough pickle." He sees the individual mandate and coverage for pre-existing conditions as two sides of the same coin.
"You can't do one with without the other," he said, "and when the mandate goes away, continuing to cover pre-existing conditions, that's going to be problematic."
As the election gets closer, some Republicans have argued that you can cover people with pre-existing conditions without the mandate.
But there are only so many ways to cover those people. Republicans routinely try to cut government-funded health programs, and they oppose a tax-funded, single-payer system.
In a statement last week, Morrisey said:
"There is no debate over coverage for preexisting conditions, but that won't stop liberal Joe Manchin and his Washington special interests allies from launching false attacks. You don't need the disaster of Obamacare to cover pre-existing conditions."
Bias, whose research focuses on the impact of health insurance policy on coverage, agrees that there are other ways to ensure coverage for sick people.
But neither Haeder nor Bias saw solutions coming from the private market, like some Republicans have proposed.
Because older, sicker people are more expensive to cover, Bias predicts that covering them at equal cost, without the individual mandate, will still require some sort of government intervention. He pointed to federal grants for high risk pools, subsidies for individuals with pre-existing conditions to purchase through the private market, or a public option, meaning a government-run insurance program.
"In the absence of an individual mandate it may be difficult to find solutions for individuals with pre-existing conditions through private for-profit insurance without additional government assistance,” Bias said.
Haeder suggested several state-level interventions, such as a state-level individual mandate, auto-enrollment programs, or programs that promote people signing up for insurance. But his suggestions required government intervention, too, not leaving health care to the private market.
Haeder said, "in short, in a rational system, we require people to be insured and we help them" in many different ways.
While the solutions may come from government, we don't know whether they'll come from Manchin or Morrisey.
Neither candidate will talk about their plans for the health care system.
Manchin voted against efforts to repeal the Affordable Care Act, and in recent months, has positioned himself as an outspoken advocate for people with pre-existing conditions.
But in the early days of the Affordable Care Act, Manchin repeatedly criticized the individual mandate and wanted to pull the fine the first year.
"Every voter in West Virginia understands that Joe Manchin is fighting to protect people with pre-existing conditions," his campaign spokesman, Grant Herring, said in a statement. "He is trying to stop Patrick Morrisey's dangerous lawsuit to let the insurance companies deny coverage for pre-existing conditions."
Manchin, the self-described most conservative Democrat in Congress, is sometimes criticized for what voters perceive is taking positions based on political expediency.
Herring said Manchin "listened to the concerns of West Virginians and values their input on issues facing the Mountain State."
"Senator Manchin always does what's best for West Virginia," he said.
Manchin told the Bluefield Daily Telegraph that the "biggest thing I'm concerned about is healthcare," yet he's rejected repeated requests for a substantive interview on health policy.
His campaign didn't answer questions about whether he supports the mandate now, whether he supports a government-run, tax-funded single payer system, or has other plans for covering those people now that the mandate is gone.
He has told national outlets he was open to the idea of a single-payer system; he later clarified that was "skeptical" of the idea, according to Politico.
According to the Bluefield Daily Telegraph, he stated that the Affordable Care Act needs fixed, but offered no ideas for doing so.
Here’s the other thing:
Back to the lawsuit.
Morrisey argues in the brief that you do need the individual mandate to cover people with pre-existing conditions.
In the lawsuit, the attorneys literally argue that the individual mandate is “essential” to covering pre-existing conditions.
The lawsuit refers to that provision of the ACA as "guaranteed issue."
The plaintiffs argue that without the mandate, healthy people will forego insurance and only sick people will buy plans, making plans too expensive.
Here, for example:
"Thus '[t]he requirement is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold."
And here: “the guaranteed issue and community rating requirements would not work without the coverage requirement [i.e., the individual mandate].”
In his statement, Morrisey says: "You don't need the disaster of Obamacare to cover pre-existing conditions." But in his lawsuit, Morrisey not only literally argues that we shouldn't cover people with pre-existing conditions.
He also specifically argues that it's impossible to cover them without the mandate, which he opposes.
In June, the Trump administration filed its own brief, also asking the court to end protections for people with pre-existing conditions, saying those protections can't continue without the mandate.
Morrisey's spokesman Nathan Brand said while Morrisey believes "all West Virginians deserve access to affordable and quality healthcare," Brand didn’t answer whether Morrisey plans to drop out of the lawsuit and how he plans to ensure people with pre-existing conditions are covered, without the mandate.
"We disagree with your premise, but we appreciate you printing our statement," Brand said. He did not elaborate.
Throughout the lawsuit, the name West Virginia is only mentioned twice – at the beginning, in a list of plaintiffs, and at the end, under Morrisey's name.
In between, plaintiffs complain of “harms” to the 20 states included.
“Since the day it was enacted, the ACA has irreparably harmed the States and many individuals across the country: the individual mandate has caused many individuals either to purchase insurance they do not need or to enroll in programs for which the States bear a tremendous financial burden; States are spending millions of dollars as employers and as sovereigns to comply with the ACA’s provisions; States are prevented from enforcing their own laws and policies despite being the traditional regulator of insurance markets; and multiple States have been compelled to exercise their sovereignty to ameliorate the problem of skyrocketing insurance costs."
The Affordable Care Act is a complex piece of legislation, health policy experts say it is partly responsible for an increase in healthcare costs, and West Virginia spends millions on its Medicaid program.
But the document made no mention of the more than $1 billion in federal funding DHHR expects West Virginia to bring in fiscal year 2019, as part of the provision of the ACA that expanded Medicaid for those making up to 138 percent of the federal poverty level.
Former Governor Earl Ray Tomblin and current Governor Jim Justice have both written letters to Congress saying that West Virginia's health care infrastructure would "collapse" without that federal funding. In his letter, Justice said without the money "more citizens would be out of jobs" and "citizens who benefit from these services may end up in jails or hospitals."
He also predicted a "dramatic impact on substance abuse and mental health services."
In another letter, DHHR Secretary Bill Crouch has said the loss of that money could create "a ripple effect creating crippling financial hardship and service burdens on public and private health providers throughout the state.”
Jeremiah Samples, deputy secretary of DHHR, said the ACA has "three major impacts on DHHR," including the $1 billion in Medicaid and CHIP funding, less state money spent on charity care because more people are insured, and more revenue for healthcare providers.
"This funding helps sustain providers, especially in less affluent communities, so they can remain in business to provide services to the rest of the public," he said in an email last week.
Ellen Potter, director of health policy in the state insurance commissioner’s office, said that prior to the Affordable Care Act in 2010, there were about 271,000 uninsured West Virginians and 334,000 receiving coverage through Medicaid.
In 2017, there were 131,000 uninsured, and 529,000 on Medicaid.
Many of those people don't even know they received health insurance through the Affordable Care Act, or Obamacare, as its commonly called. They only know they received a "medical card."
After the ACA, free clinics in West Virginia began accepting Medicaid, because of all the newly insured low-income patients.
That did create a "beast" of a burden, according to Graham, the Beckley Health Right Administrator.
Graham noted he remembered many people who made too much for Medicaid choosing to forego insurance in the years since the act passed, because plans were too expensive.
But Graham, who is also the treasurer of the state rural health association, noted that some people, especially those in rural areas, got insurance for the first time and were able to see a doctor for the first time in years.
"In a perfect world, free clinics don't need to exist, but that's not the case," he said. Graham said that while clinics continued to offer the same preventative care they always had, poor patients knew they were covered in case of catastrophic events.
"It means a lot," he said.
The lawsuit states that states spend “significant time, effort, and money to ensure that they meet all of the ACA’s vast and complex rules and regulations.”
Is the West Virginia insurance commissioner's office dealing with a large cost burden?
“No,” Potter said. She laughed. "I don't think so."
“Politics are so frustrating because they just say enough to get people's attention and they’re not really explaining,” she added.
Potter said that initial efforts to comply with the ACA were covered by federal grants.
"They say it's a burden on us," she said. "There's no burden on the state itself, as far as the regulation or the rules or making sure things are compliant or all that.
"It was all taken care of pretty much in the first year or so when we had to make a few adjustments to some of our things and now it's just a matter of every day work."
The only burden she noted is the burden on the individual person, who pays more for insurance.
"Well the thing is when they’ve done these lawsuits, they haven’t consulted with anybody," she said.
Morrisey’s campaign didn’t answer questions about where he got his information on state spending and "harms" to West Virginia.
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