The Patient Protection and Affordable Care Act (the Act), has, at its core, a three-legged stool comprised of the guaranteed issue provision, 42 U.S.C.A. § 300gg-1(a), 300gg-3(a); the minimum coverage provision, 26 U.S.C.A § 5000A; and affordability provisions including the community rating provision, 42 U.S.C.A. § 300gg, and advanced payment tax credits. 26 U.S.C.A. § 36B. This statutory scheme is intended to make insurance available and affordable for the millions of Americans who are uninsured.

The guaranteed issue provision directly addresses the needs of persons with preexisting conditions, in particular. Approximately 57.2 million, 22.4 percent, of all Americans under the age of 65 have a pre-existing condition that could lead to a denial of coverage. Families USA Foundation, Health Reform: Help for Americans with Pre-Existing Conditions at 2 (May 2010) (visited November 22, 2011) <http://www.familiesusa.org/assets/pdfs/ health-reform/pre-existing-conditions.pdf.> (hereinafter "Families USA"). Every income group and every racial and ethnic group are included in these numbers.  

Private insurers regularly and ever more increasingly deny coverage to persons with preexisting conditions, as one Congressional study found:

From 2007 through 2009, the four largest for-profit health insurance companies, Aetna, Humana, UnitedHealth Group, and WellPoint, refused to issue health insurance coverage to more than 651,000 people based on their prior medical history. On average, the four companies denied coverage to one out of every seven applicants based on a pre-existing condition.

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From 2007 through 2009, the number of people denied coverage for pre-existing conditions increased at a rapid rate. The number of individuals denied coverage by Aetna, Humana, UnitedHealth Group, and WellPoint increased from 172,400 in 2007 to 257,100 in 2009, an increase of 49%. During the same period, applications for enrollment increased by only 16%.

H. A. Waxman and B. Stupak, Memorandum: Coverage Denials for Pre-Existing Conditions in the Individual Health Insurance Market, U.S. House of Representatives, Committee on Energy and Commerce (October 12, 2010) (emphases in original) (visited Nov. 23, 2011) <http://democrats.energy commerce.house.gov/Press_111/20101012/Memo.Pre-Existing.Condition.Denials.Individual.Market.2010.10.12.pdf>.

Uninsured adults are six times more likely than those with private insurance to go without needed healthcare due to its cost, and seven times more likely than insured adults to have gone without preventive care in the last year. Uninsured adults with chronic conditions are particularly at risk. Among uninsured adults with chronic conditions, nearly one-third went without needed medical care; approximately 59 percent delayed care; and 60 percent did not fill a prescription due to cost.  

Although we counsel patients with chronic illnesses in many areas of law and insurance - from health and disability insurance coverage appeals to employment, school, and housing issues - more than fifteen and one-half percent of Advocacy for Patients with Chronic Illness's caseload consists of people with pre-existing conditions who simply cannot find health insurance. Thirty-five percent of the calls we receive about the inability to access health insurance center on affordability. For a patient with Crohn's disease, gastroparesis, high blood pressure, and asthma, for example, going without medication for a six to twelve month waiting period (if they are not HIPAA eligible) is unthinkable; indeed, it may result in hospitalization or even death.

These are not just numbers; they are people. In November 2011 alone, we heard from a woman with hepatitis C and cirrhosis of the liver who was laid off from her job of fourteen years. Her insurance was terminated coincident with the termination of her employment, as is the norm. She had to get her weekly injection of interferon, but she had not yet received her COBRA notice and hence was not HIPAA eligible, and she had no way to cover the cost of this injection; the provider would not treat her without active insurance. We spoke with a woman with a genetic illness that affects her blood's clotting who has been unemployed for two years, and although she exhausted her COBRA benefits, she cannot afford her state's guaranteed issue option, which would cost more than $1000 per month, and is no longer HIPAA eligible. She was rejected by Medicaid for having $30 too much in her bank account. A young man called because the local county hospital told him that he probably has Crohn's disease, but he could not receive a definitive diagnosis - and, thus, treatment - without a colonoscopy, which he cannot afford. We heard from a woman with reflex sympathetic dystrophy (also known as complex regional pain syndrome) who was diagnosed after her insurance went into effect, but the insurer took the position that she had to wait a full year before any services for her pre-existing condition would be covered. Another woman wrote for her friend whose husband lost his job and, thus, his insurance; her friend has lupus and cannot afford any health care, without which she will die.

This is a small sample of what we hear, day in and day out, from all over the United States. People with pre-existing conditions who do not have insurance are desperate. Although we direct them to prescription drug patient assistance programs, which provide free or discounted medications; federally qualified health centers, which provide free or discounted primary health care; and not-for-profit hospitals, where they may receive "charity care," there is no way to get blood drawn or have a CT scan or undergo surgery when you do not have insurance.

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Requiring coverage of people with pre-existing conditions would not in itself achieve the goal of covering the uninsured because adding only people with pre-existing conditions to the health care "pool" would drive up the cost of insurance to unaffordable levels, and drive healthy people out of the pool when they realize they are subsidizing the ill. For example, beginning in 1973, New York required insurers to cover people with pre-existing conditions and, as a result, premiums increased and healthy people dropped out of the plans, leaving only people with "high health care needs," which led to "skyrocket[ing]" premiums. A. Hartocollis, "New York Offers Costly Lessons on Insurance," New York Times (April 17, 2010) (visited November 28, 2011) <http://www.nytimes.com/2010/04/18/nyregion/ 18insure.html?scp=2&sq=preexisting+conditions&st=nyt>. In order to spread the cost of covering people with pre-existing conditions, healthy people also must be included in the "pool" without the option of opting out, and, thus, minimum coverage must be required of all Americans. Otherwise, not only would people with pre-existing conditions drive up the cost of insurance, but "many individuals [would] wait to purchase health insurance until they needed care." 42 U.S.C.A. § 18091(a)(2)(I).

Thus, Congress built the second leg of the stool: the minimum coverage requirement. It found that the 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." 42 U.S.C.A. § 18091(a)(2)(I).

Finally, Congress had to construct the third leg. If Congress is to require Americans to buy insurance that many find unaffordable, there must be mechanisms to ensure that they can afford the insurance they are required to buy. Thus, Congress created the affordability provisions: the community rating provision, 42 U.S.C.A. § 300gg; and advanced payment tax credits that work as a subsidy to assist low-income individuals and families to purchase insurance. 26 U.S.C.A. § 36B.

Without the minimum coverage provision, the stool could not stand. And stand it must if people with largely invisible chronic illnesses are to be able to purchase and afford health insurance.